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NY Strip Club Scores Partial Victory In Adult Zoning Case

Second Circuit panel remands case based on site availability

NY Strip Club Scores Partial Victory In Adult Zoning Case

SMITHTOWN, N.Y.—An appeals panel of the Second Circuit has given a partial win to TJS of New York, the corporation that owns the Oasis adult cabaret at 490 West Jericho Pike in Smithtown, a community on Long Island, holding that the question of where the club could relocate in response to the town's zoning laws is dependent on the number of sites available at the time suit was filed, rather than the time of the enactment of the ordinance.

The location 490 West Jericho Pike, was already in use as an adult nightclub when Smithtown enacted its first adult zoning ordinance in 1994, which law limited any new "adult entertainment" uses to three types of tracts: shopping center business, light industry or heavy industry—which anyone who knows the geography of Long Island knows are few and far between.

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But the owners of 490 West Jericho Pike, 490 Habitat, Inc. ("Habitat"), sued the town over the ordinance, even though the club itself would be grandfathered in under the law as a non-conforming use. Habitat argued in its suit that the ordinance, which required a 500-foot distance between adult businesses, and between such businesses and any "residence district, park, playground, school, church or similar place of public assembly," was unconstitutional because it did not allow from a reasonable number of locations in the town where new adult businesses could open.

While that suit was pending, in 2000, Smithtown amended its ordinance to require the 500-foot separation to be measured from building to building rather than property line to property line—a clear improvement—and to remove an unconstitutional "special exception" requirement, and the town and Habitat reached an agreement where the club agreed to make a "diligent good-faith effort" to find a property to which it could relocate.

But in 2002, Habitat was bought by TJS of New York, which changed the club's name to Oasis, and about a year later, in June of 2003, when Smithtown sued to close the club, TJS sued for a declaratory judgment and a permanent injunction against enforcement of the town's ordinance. The trial of the case featured competing experts as to whether the ordinance provided sufficent alternative locations for the club, but TJS also litigated the question of when those alternative locations had to be available: At the enactment of the ordinance or at the time its lawsuit was filed. The town supported the earlier date, while TJS argued for the latter.

The judge in the case, Sandra J. Feuerstein, ruled in favor of Smithtown on the date-of-availability issue, but the Second Circuit panel, in a unanimous decision, reversed on that issue and remanded the case.

In so ruling, the Second Circuit considered a number of other major decisions that implicated availability: Young v. American Mini Theaters, City of Renton v. Playtime Theatres, City of Littleton, Colo. v. Z.J. Gifts D-4 and Topanga Press v. City of Los Angeles. The court's conclusion was that none of them was exactly on point in terms of when alternate sites had to be available, but that most of them—notably Renton—spoke of such availability in the present tense, and that was sufficient for the panel's ruling.

Smithtown, on the other hand, had expressed concern that a "current availability" decision might leave the ordinance open to continued attacks, but the court noted that that would only occur if there were significant changes in the surrounding community which might alter the town boundaries, or increase or decrease its population. The court also noted that requiring courts to consider contemporary site availability might allow some communities to survive a First Amendment availability challenge if the community had made more sites available after its ordinance was enacted.

But while that ruling was a victory for TJS, another part of the court's decision might easily take that away.

TJS had argued that the number of available sites should be limited to properties that included only the "classes of businesses that were similar in physical characteristics to an adult entertainment business, such as 'CVS Pharmacy, Wendy's and Blockbuster Video'," and that it should exclude large (and expensive) tracts best suited for "big box" stores like WalMart.

The appeals court disagreed, ruling that "TJS’s objections to the physical size of sites and to the nature of the businesses currently operating at certain sites ultimately reduce to complaints about economic impact and commercial viability," and that any sites that were part of the "general commercial real estate market" could be considered, even if those sites would be "unprofitable or commercially unviable for adult businesses like TJS."

"An adult entertainment establishment must compete for commercial real estate like any other market participant," the panel ruled. "And, like for other market participants, the physical size or nature of the business may affect the availability of commercially viable sites or the willingness of property owners to sell or lease to them. There are, in short, inevitable impediments to a business's relocation. But obstacles such as the possibility of 'making due with less space than one desired,' or 'having to purchase a larger lot than one needs,' do not render property unavailable for the purpose of constitutional analysis. Alternative sites need only be available, not attractive."

So whether TJS wins at its next hearing may depend largely on which experts can be marshalled to examine and comment on allegedly "available" sites.

No date has yet been set for that future hearing.






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Mark Kernes

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