City’s Adult Use Zoning Rules Upheld

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The Court of Appeals, after 22 years of litigation, upheld the City’s adult use zoning rules and dismissed the complaint challenging the rules. In 1994 the City’s Department of City Planning completed a study of sexually focused businesses: adult video and bookstores, adult live or movie theaters, and topless or nude bars. The study led to the passage in 1995 of a zoning amendment barring adult establishments from residential and most commercial and manufacturing zones, and mandating that, where permitted, adult businesses had to be located at least 500 feet from houses of worship, schools, day care centers, and other adult businesses. The City defined an adult establishment as one in which a substantial portion of the business was devoted to adult uses.  This was further refined under the so-called 60/40 test which defined substantial use as equating to 40 percent or more of the space devoted to adult use. This definition did not prove practical and the City amended the definition again in 2001 by removing the mandatory nature of the 60/40 rule, deleting the substantial use language, and adding qualitative criteria.

For the People Theatres of N.Y. Inc. and others challenged the zoning amendments as unconstitutional. There followed multiple decisions by the Supreme Court, appeals to the Appellate Division, a trip to the Court of Appeals, and a remand in 2005 to the Supreme Court for further proceedings. In 2012 Supreme Court Justice Louis B. York found the amendments violated the constitution and enjoined enforcement of the adult use restrictions. In 2015 the Appellate Division, First Department, affirmed the lower court’s holding that the zoning rules were unconstitutional.

The City appealed to the Court of Appeals. On June 6, 2017 the Court of Appeals reversed, upheld the zoning rules as constitutional, and granted judgment dismissing the complaint challenging the zoning rules.

The Court of Appeals held that the lower courts had imposed an incorrect test on the City in evaluating the constitutionality of the adult use rules. The lower courts should have used “intermediate scrutiny” which only required that the ordinance be narrowly tailored to the City’s purpose and permit reasonable alternative avenues of communication. The Court of Appeals ruled that the lower courts had imposed too stringent a standard. “Properly understood,” the Court stated, “the trial court’s task was to decide whether the City had relevant evidence reasonably adequate to support its conclusion that the adult establishments retained a predominant, ongoing focus on sexually explicit activities or materials.” The Court held that the City had in fact met its constitutional burden and should have been granted judgment dismissing the complaint. The Court, accordingly, granted judgment to the City and dismissed the complaint.

For the People Theatres v. City of New York, 2017 WL 2427295 (N.Y. 2017).