Development

Adult Use Ordinance Upheld

Casanova Entertainment Group, Inc. v. City of New Rochelle

NYLJ 7/6/05, p. 22, col. 3

U.S. Dist. Ct., S.D.N.Y.

(Connor, J.)

Landowner brought an action for a declaration that the City of New Rochelle's zoning restrictions on adult-oriented establishments are unconstitutional, and for an injunction prohibiting enforcement of those sections of the code. The court denied landowner's motion for a preliminary injunction, concluding that landowner had not established a likelihood of success on the merits.

The City of New Rochelle has enacted a zoning ordinance that limits adult-oriented businesses to industrial and light industrial zoning districts. The ordinance also prohibits adult-oriented businesses within 400 feet of one another, within 400 feet of a zoning district that permits residential dwellings as a principal use, and within 400 feet of the property line of a school, house of worship, park, public recreation facility, community center, library, or urban renewal area. The ordinance also requires that adult-oriented uses be located on lots which are at least 50 feet from non-conforming residential sues or private recreational facilities. In addition, the ordinance requires that landowner obtain a special use permit for adult-oriented businesses.

Landowner owns a parcel of land in the city's central business district, and seeks to operate an adult-oriented business on the parcel. To that end, landowner challenged the city's ordinance as unconstitutional because it essentially prohibits all adult-oriented businesses within the city in violation of the First Amendment.

In denying landowner's motion for a preliminary injunction, the court first found as a matter of fact that there were several parcels within the city that would be available for adult-oriented businesses. The court then turned to landowner's contention that the city's requirement that adult-oriented businesses obtain a special permit made the availability of those lots illusory. The court first noted that landowner lacked standing to advance that contention because landowner did not own land within which adult-oriented businesses were subject to the special permit requirement; landowner's land was located in a district that prohibited such businesses altogether. Nevertheless, the court addressed the claim as relevant to landowner's claim that the city did not make any sites available for particular forms of communication. The court then concluded that the city's special permit requirement imposed specific criteria for assessing permits, not unfettered discretion, and held that the time limits for determining special permit applications did not prevent alternative avenues of communication. Hence, the court concluded that landowner had not established a likelihood of success on the merits of its claim, and was not entitled to a preliminary injunction.

Adult Use Ordinance Upheld

Casanova Entertainment Group, Inc. v. City of New Rochelle

NYLJ 7/6/05, p. 22, col. 3

U.S. Dist. Ct., S.D.N.Y.

(Connor, J.)

Landowner brought an action for a declaration that the City of New Rochelle's zoning restrictions on adult-oriented establishments are unconstitutional, and for an injunction prohibiting enforcement of those sections of the code. The court denied landowner's motion for a preliminary injunction, concluding that landowner had not established a likelihood of success on the merits.

The City of New Rochelle has enacted a zoning ordinance that limits adult-oriented businesses to industrial and light industrial zoning districts. The ordinance also prohibits adult-oriented businesses within 400 feet of one another, within 400 feet of a zoning district that permits residential dwellings as a principal use, and within 400 feet of the property line of a school, house of worship, park, public recreation facility, community center, library, or urban renewal area. The ordinance also requires that adult-oriented uses be located on lots which are at least 50 feet from non-conforming residential sues or private recreational facilities. In addition, the ordinance requires that landowner obtain a special use permit for adult-oriented businesses.

Landowner owns a parcel of land in the city's central business district, and seeks to operate an adult-oriented business on the parcel. To that end, landowner challenged the city's ordinance as unconstitutional because it essentially prohibits all adult-oriented businesses within the city in violation of the First Amendment.

In denying landowner's motion for a preliminary injunction, the court first found as a matter of fact that there were several parcels within the city that would be available for adult-oriented businesses. The court then turned to landowner's contention that the city's requirement that adult-oriented businesses obtain a special permit made the availability of those lots illusory. The court first noted that landowner lacked standing to advance that contention because landowner did not own land within which adult-oriented businesses were subject to the special permit requirement; landowner's land was located in a district that prohibited such businesses altogether. Nevertheless, the court addressed the claim as relevant to landowner's claim that the city did not make any sites available for particular forms of communication. The court then concluded that the city's special permit requirement imposed specific criteria for assessing permits, not unfettered discretion, and held that the time limits for determining special permit applications did not prevent alternative avenues of communication. Hence, the court concluded that landowner had not established a likelihood of success on the merits of its claim, and was not entitled to a preliminary injunction.