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New York Real Estate Law ReporterFeaturesLandlord Tenant LawLitigation

Local Law Banning Music Festival Is Not Unconstitutional Restraint of Speech

By Steven M. Silverberg
February 01, 2020

A landowner challenged local zoning that banned holding a three-day music festival, arguing that the law was an unconstitutional violation of free speech and void for vagueness. Initially, there was also a claim of violation of the Religious Land Use and Institutionalized Persons Act (42 USC §2000cc et. seq.) which was abandoned during the course of the litigation. The New York Court of Appeals in Town of Delaware v. Leifer, ___ NY3d ___ (2019), found there was no violation of the right to free speech and the law was not void for vagueness.

The property in question is a 68 acre site containing a single family home. In 2016 the landowner sought, for the third year, to hold a three-day music festival and camping on his site to celebrate the Jewish Sabbath (called the Camping Trip). Tickets were sold and attendees would camp out on the property from Friday through Sunday, The activities would include music, religious ceremonies on Saturday (the Jewish Sabbath), food trucks and portable toilets for the attendees.

Upon learning of the intention to hold the festival again in 2016, the Town commenced an action to enjoin the festival, claiming that it violated local zoning. A "theater" is a permitted use in other zoning districts but not the rural district in which the property is located. The Town claimed the proposed activities constituted the use as a theater and if the property owner wished to conduct that use he should seek a variance or zoning amendment. The parties entered into a stipulation permitting the proposed festival to be conducted, with certain restrictions, in 2016, with the Town reserving its right to object to future events.

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