Local Law Banning Music Festival Is Not Unconstitutional Restraint of Speech

Thereafter, when the landowner proposed to conduct the festival again in 2017, the Town moved for summary judgment on its request for an injunction claiming that the activities conducted during the festival were not permitted. As for the claimed violation of the First amendment, the Town argued that the zoning is content neutral and the activities proposed "… would have secondary effects on the surrounding 'rural and residential community' antithetical to the Zoning Law's stated purpose of preserving the agricultural character of the Rural District." The Defendant landowner argued that the definition of "theater" was vague and was both as applied and facially overbroad "… because it bans personal displays of music, drama and film such as singing in one's home."

The New York Supreme Court issued the injunction against advertising, selling tickets or holding the festival but specified that Defendant could conduct activities consistent with his dwelling on the site, and rejected the Defendant's arguments. The Appellate Division affirmed, noting that the zoning law did not interfere with the Defendant's rights to worship, watch films, play music or conduct other activities in his home with family and friends. It also noted that a theater was an appropriate use for more developed areas.

The Court of Appeals noted that the Town is broken down into seven distinct zoning districts each with a list of permitted uses. While the law also permits "customary accessory uses" the court noted that the three-day festival is not customarily accessory to the use of the property as a single family dwelling. There is also the possibility of seeking a special permit from the Town, but Defendant never applied for one. Thus, the case rests on whether the law is unconstitutional on its face or in its application. The court found the Defendant's argument focused on the issue of where a theater is permitted in the Town.

"This approach misses the mark because the Town did not rely exclusively on the theater provision but cited the Zoning Law as a whole to show that certain uses are prohibited in a Rural District but expressive aspects of the event, such as the musical presentations, are permitted in other districts. Considering this context, neither the theater provision, nor the Zoning Law as a whole, violates defendant's constitutional rights."

The court went on to find that a "theater" is not limited to a building but would also include outdoor performances. Therefore, as a theater is not listed as a permitted use in the Rural District in which the property is located, the Defendant could only succeed if the Defendant's constitutional rights were violated.

After discussing the balance that must be struck between legitimate governmental interests and free expression the court found:

"By automatically allowing a limited and balanced suite of principal and accessory land uses that are closely related to the government's purpose of preserving agricultural character (e.g., agriculture, agriculture services establishments, single- and two-family dwellings), but prohibiting a range of more obtrusive uses absent a special use permit or variance (including "theater[s]" with attendant noise and traffic), the provisions directly promote that government purpose, which would be less effectively achieved in their absence. Indeed, it was not unreasonable for the Town to conclude that an event like the Camping Trip is the sort of land use that, like a theater, would threaten the Rural District's agricultural character."

The court further noted that the law does not prevent activities such as birthday parties, watching films and musical activities with family and friends, customary to a single family use. In addition, the use proposed by Defendant is permitted elsewhere in Town and as "the provisions simply seek to limit certain cultural presentations to the non-rural areas where they would have a less damaging impact, they also survive defendant's overbreadth challenge." Likewise, the vagueness claim was rejected by the court noting that the stated purposes of the Rural District, along with the listed uses permitted, was sufficient to provide notice that the requirements for security, food trucks, sanitation and the like did not fit within the permitted uses.

Therefore, the court affirmed the decision of the Appellate Division.

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Steven M. Silverberg is a founding member and currently serves as Of Counsel to Silverberg Zalantis LLC, concentrating its practice in areas of municipal, land use law and related litigation. Steve is also a member of the Board of Editors of Commercial Leasing Law & Strategy's sibling LJN newsletter, New York Real Estate Law Reporter and blogs on related topics at http://blog.szlawfirm.net.