Adult Uses: Adequate Alternative Sites

Municipal officials dislike adult uses, even when they attract enough business to stay afloat. When municipalities enact zoning ordinances that restrict the location of adult uses, they must take care to assure that adequate alternative sites remain available. In TJS of New York, Inc. v. Town of Smithtown, NYLJ 3/30/10, p. 29, col. 1, the Second Circuit, in an opinion by Judge Guido Calabresi, held that the obligation to provide alternative sites is a continuing one, and that the municipality does not satisfy its obligations merely by assuring that adequate sites are available at the time it enacts its adult use restrictions. The court's result is a sensible one, but the path it took to reach that result may generate unnecessary difficulties.

Constitutional Background

The Supreme Court has long held that the First Amendment protects “adult” uses. But the Court has emphasized that the protection is limited: Although a municipality may not restrict adult establishments merely because the municipality seeks to suppress the content displayed in the establishment, the municipality may limit the location of adult establishments “to prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life.” City of Renton v. Playtime Theatres, Inc., 475 US 41, 48. That is, a municipality may regulate adult establishments to address the “secondary effects” generated by those establishments. But the Supreme Court in Renton made it clear that regulation of adult establishments would be upheld only if the zoning ordinance permitted “reasonable alternative avenues of communication.” Id. at 50. In other words, the municipality may zone adult establishments out of some areas (say, the downtown business district), but must provide some suitable areas in which adult establishments are permitted.

The Smithtown Case

In 1994, the Town of Smithtown enacted a zoning ordinance limiting adult entertainment uses to three kinds of zoning districts: shopping center business districts, light industry districts, and heavy industry districts. 490 West Jericho Turnpike is in none of those districts, but is located instead in a neighborhood business zone, within 500 feet of three different parks. When the 1994 ordinance was enacted, the adult entertainment business located at the site became a nonconforming use. The owner of the site challenged the ordinance for failing to provide adequate alternatives, but the litigation ended pursuant to a stipulation under which the owner agreed to make a good faith effort to relocate (presumably to one of the 35 potential sites identified by the town), and the town agreed to permit the owner to continue to operate on the site until 2003.

In 2002, the parcel was sold. When, the following year, the town sought to close the adult use, the new owner brought this action for a judgment declaring the ordinance invalid, and seeking an injunction against enforcement. At a bench trial, the only issue was whether the ordinance provided adequate alternative locations. In concluding that it did, Judge Sandra Feuerstein rejected landowner's argument that adequacy should be determined as of the date the complaint was filed, concluding instead that the municipality was required only to determine adequacy on the date the ordinance was enacted. Landowner appealed.

The Second Circuit's Opinion

In vacating the district court decision and remanding for further proceedings, the Second Circuit held that in assessing adequacy, a court must focus on availability of alternatives at the time the ordinance is challenged. The court noted that alternatives available at the time of enactment might subsequently disappear, and that new sites might open up for development after enactment of the ordinance. The court wrote that the First Amendment inquiry must “be attuned to these realities.”

The court acknowledged the town's concern that a rule focused on alternatives available on the date of the complaint would permit a landowner to advance multiple challenges to the same ordinance. But the court indicated that a subsequent complaint should only be entertained if there were significant changes in the surrounding community, and suggested that the burden of pleading and proving such changes with particularity might be placed on the plaintiff. The court defended its holding by noting that the implications of the reverse rule would be constitutionally troubling because protected speech would be silenced if events occurring after the date of an enactment were to eliminate adequate alternative sites.

But how could post-enactment events eliminate alternative sites? Of course, market forces could operate to develop alternative sites for uses other than adult establishments. But the Supreme Court in City of Renton made it clear that sites are not unavailable for First Amendment purposes merely because they are “already occupied by existing businesses,” not “currently available for sale or lease,” or otherwise not “commercially viable.” Renton at 53-54. Indeed, the court in Smithtown acknowledged as much. It is enough for constitutional purposes that sites be potentially, not actually available. And if the sites were potentially available at the time of enactment, market forces alone cannot change their constitutional availability.

The principal other mechanism for eliminating alternative sites is through government action ' principally zoning amendments or other development restrictions. But if government enactments eliminate alternative sites, a prospective owner of an adult establishment could challenge those enactments, not the adult use ordinance, as First Amendment violations. Such an approach, unlike the Second Circuit's approach, would focus litigation on the right question: What government action resulted in an unconstitutional constraint on freedom of speech? And this approach would also avoid the evil cited by the town: res judicata principles would bar a second attack on the adult use ordinance; a landowner could mount a second attack only by challenging a subsequent governmental action.

The Second Circuit briefly hypothesized only one non-governmental action that might make transform a municipality with adequate alternative sites into one without adequate alternative sites: population growth. But that concern appears more hypothetical than real. If there were adequate sites for adult uses before population growth, an enterprising adult establishment will find ways to use the same site to provide adequate servicing to a larger clientele.

Conclusion

In short, the Second Circuit was right to be worried that post-enactment events might transform constitutionally adequate alternatives into inadequate alternatives, but the doctrinal mechanism the court used to address that problem threatens to provoke needless litigation. The court would have done better to hold that adequacy should be evaluated as of the time of the enactment, and to leave potential adult users to challenge subsequent enactments, rather than mounting duplicative challenges to an adult use ordinance that was constitutional when enacted.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.

Municipal officials dislike adult uses, even when they attract enough business to stay afloat. When municipalities enact zoning ordinances that restrict the location of adult uses, they must take care to assure that adequate alternative sites remain available. In TJS of New York, Inc. v. Town of Smithtown, NYLJ 3/30/10, p. 29, col. 1, the Second Circuit, in an opinion by Judge Guido Calabresi, held that the obligation to provide alternative sites is a continuing one, and that the municipality does not satisfy its obligations merely by assuring that adequate sites are available at the time it enacts its adult use restrictions. The court's result is a sensible one, but the path it took to reach that result may generate unnecessary difficulties.

Constitutional Background

The Supreme Court has long held that the First Amendment protects “adult” uses. But the Court has emphasized that the protection is limited: Although a municipality may not restrict adult establishments merely because the municipality seeks to suppress the content displayed in the establishment, the municipality may limit the location of adult establishments “to prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life.” City of Renton v. Playtime Theatres, Inc. , 475 US 41, 48. That is, a municipality may regulate adult establishments to address the “secondary effects” generated by those establishments. But the Supreme Court in Renton made it clear that regulation of adult establishments would be upheld only if the zoning ordinance permitted “reasonable alternative avenues of communication.” Id. at 50. In other words, the municipality may zone adult establishments out of some areas (say, the downtown business district), but must provide some suitable areas in which adult establishments are permitted.

The Smithtown Case

In 1994, the Town of Smithtown enacted a zoning ordinance limiting adult entertainment uses to three kinds of zoning districts: shopping center business districts, light industry districts, and heavy industry districts. 490 West Jericho Turnpike is in none of those districts, but is located instead in a neighborhood business zone, within 500 feet of three different parks. When the 1994 ordinance was enacted, the adult entertainment business located at the site became a nonconforming use. The owner of the site challenged the ordinance for failing to provide adequate alternatives, but the litigation ended pursuant to a stipulation under which the owner agreed to make a good faith effort to relocate (presumably to one of the 35 potential sites identified by the town), and the town agreed to permit the owner to continue to operate on the site until 2003.

In 2002, the parcel was sold. When, the following year, the town sought to close the adult use, the new owner brought this action for a judgment declaring the ordinance invalid, and seeking an injunction against enforcement. At a bench trial, the only issue was whether the ordinance provided adequate alternative locations. In concluding that it did, Judge Sandra Feuerstein rejected landowner's argument that adequacy should be determined as of the date the complaint was filed, concluding instead that the municipality was required only to determine adequacy on the date the ordinance was enacted. Landowner appealed.

The Second Circuit's Opinion

In vacating the district court decision and remanding for further proceedings, the Second Circuit held that in assessing adequacy, a court must focus on availability of alternatives at the time the ordinance is challenged. The court noted that alternatives available at the time of enactment might subsequently disappear, and that new sites might open up for development after enactment of the ordinance. The court wrote that the First Amendment inquiry must “be attuned to these realities.”

The court acknowledged the town's concern that a rule focused on alternatives available on the date of the complaint would permit a landowner to advance multiple challenges to the same ordinance. But the court indicated that a subsequent complaint should only be entertained if there were significant changes in the surrounding community, and suggested that the burden of pleading and proving such changes with particularity might be placed on the plaintiff. The court defended its holding by noting that the implications of the reverse rule would be constitutionally troubling because protected speech would be silenced if events occurring after the date of an enactment were to eliminate adequate alternative sites.

But how could post-enactment events eliminate alternative sites? Of course, market forces could operate to develop alternative sites for uses other than adult establishments. But the Supreme Court in City of Renton made it clear that sites are not unavailable for First Amendment purposes merely because they are “already occupied by existing businesses,” not “currently available for sale or lease,” or otherwise not “commercially viable.” Renton at 53-54. Indeed, the court in Smithtown acknowledged as much. It is enough for constitutional purposes that sites be potentially, not actually available. And if the sites were potentially available at the time of enactment, market forces alone cannot change their constitutional availability.

The principal other mechanism for eliminating alternative sites is through government action ' principally zoning amendments or other development restrictions. But if government enactments eliminate alternative sites, a prospective owner of an adult establishment could challenge those enactments, not the adult use ordinance, as First Amendment violations. Such an approach, unlike the Second Circuit's approach, would focus litigation on the right question: What government action resulted in an unconstitutional constraint on freedom of speech? And this approach would also avoid the evil cited by the town: res judicata principles would bar a second attack on the adult use ordinance; a landowner could mount a second attack only by challenging a subsequent governmental action.

The Second Circuit briefly hypothesized only one non-governmental action that might make transform a municipality with adequate alternative sites into one without adequate alternative sites: population growth. But that concern appears more hypothetical than real. If there were adequate sites for adult uses before population growth, an enterprising adult establishment will find ways to use the same site to provide adequate servicing to a larger clientele.

Conclusion

In short, the Second Circuit was right to be worried that post-enactment events might transform constitutionally adequate alternatives into inadequate alternatives, but the doctrinal mechanism the court used to address that problem threatens to provoke needless litigation. The court would have done better to hold that adequacy should be evaluated as of the time of the enactment, and to leave potential adult users to challenge subsequent enactments, rather than mounting duplicative challenges to an adult use ordinance that was constitutional when enacted.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.