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Adult Use Zoning in New York
New York City's 2001 ordinance regulating adult uses has been the subject of litigation for more than 15 years. In September, the Court of Appeals put an apparent end to the litigation by denying reargument of its June decision upholding the ordinance. For the People Theaters of N.Y., Inc. v. City of New York, 29 NY3d 340, rearg. den 29 NY3d 1115. Unless the United States Supreme Court intervenes, the court's analysis should make it significantly easier for New York municipalities to defend adult use ordinances against First Amendment attack.
The Constitutional Framework
The First Amendment does not permit municipalities, under the guise of zoning, to regulate the content of speech, but also does not prohibit municipalities from regulating adult uses when there is evidence that those uses generate “secondary effects” for the surrounding community. To establish that particular adult uses create adverse secondary effects, a municipality may rely on studies conducted in another municipality. See City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (City of Renton can rely on study prepared by the City of Seattle).
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