Casanova Entertain. Group v. City of New Rochelle, 05 CIV. 2721(WCC).

375 F.Supp.2d 321

CASANOVA ENTERTAINMENT GROUP, INC., Plaintiff, v. CITY OF NEW ROCHELLE, Defendant.

No. 05 CIV. 2721(WCC).

United States District Court, S.D. New York.

June 29, 2005.

COPYRIGHT MATERIAL OMITTED

Berkman, Gordon, Murray & DeVan, Cleveland, OH (J. Michael Murray, Steven D. Shafron, Of Counsel), Mehler & Buscemi, New York (Martin P. Mehler, Of Counsel), for Plaintiff.

Zarin & Steinmetz, White Plains, NY (David S. Steinmetz, Susan H. Sarch, Jody T. Cross, Of Counsel), Corporation Counsel for the City of New Rochelle, New Rochelle, NY (Bernis E. Shapiro, Of Counsel), for Defendant.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiff Casanova Entertainment Group, Inc. ("Casanova") commenced the present action against defendant City of New Rochelle ("New Rochelle" or the "City") seeking: (1) a declaration that certain sections of New Rochelle's codified zoning ordinances relating to adult-oriented establishments¹ are unconstitutional on their face and as applied under the First and Fourteenth Amendments; and (2) a preliminary injunction and, after final hearing, a permanent injunction, prohibiting defendant from enforcing against plaintiff sections of the Code relating to adult entertainment establishments in deprivation of plaintiff's rights secured by the First and Fourteenth Amendments of the United States Constitution.² This action is presently before the Court on Casanova's motion for a preliminary injunction requesting that the Court enjoin defendant from enforcing the Code against plaintiff who plans to present adult entertainment, as defined by the Code, at 50 LeCount Place, an improved parcel of real estate in New Rochelle located in an area of the City zoned Downtown Business in which plaintiff is currently operating a cabaret. In addition, defendant contemporaneously moves to dismiss the action in its entirety.

Under New Rochelle's current zoning laws, plaintiff cannot legally operate an adult entertainment business at 50 LeCount Place. Plaintiff alleges that the Code limits the location of adult entertainment establishments to the extent that there are, in effect, no available sites on which an adult entertainment establishment could legally operate within the borders of New Rochelle, thus denying such establishments a reasonable opportunity to operate in New Rochelle. For the reasons stated hereinafter, plaintiff's motion for a preliminary injunction is denied and defendant's motion to dismiss is denied.

BACKGROUND

I. Statement of Facts

The following facts are derived from the Complaint.³ the evidentiary hearing (the "Hearing")⁴ and the parties' respective submissions.

Plaintiff, a corporation organized and existing under the laws of the State of New York, and the lessee of real property in New Rochelle, wants to open an adult entertainment cabaret at 50 LeCount Place, but contends that it cannot do so because of defendant's zoning code. (Complt.¶¶ 1, 6.) Specifically, plaintiff seeks to operate a business which presents "constitutionally protected, artistic dance performances by women, who in the course of their performances, will appear topless and in g-strings." (Id. ¶ 6.)

The City of New Rochelle is a small, densely populated residential "bedroom suburb" of New York City. (Def. Post-Hr'g Brief Opp. Mot. Prelim. Inj. at 1.). New Rochelle spans approximately 10.67 square miles or 6,820.8 acres with a population of approximately 72,582. (Pl. Post-Hr'g Brief Supp. Mot. Prelim. Inj. at 4.)⁵ For many years, New Rochelle's downtown business area had been deteriorating; however, the City "has taken significant steps to reclaim its downtown and residential, commercial and public space developments." (Def. Post-Hr'g Brief Opp. Mot. Prelim. Inj. at 1.) In particular, defendant calls attention to the recently constructed New Roc City, a family entertainment center located across the street from the premises in which plaintiff wants to establish an adult entertainment cabaret. (Id.)

New Rochelle's Code creates a number of use districts within the city and sets forth the kinds of uses that are permitted in each such district. (Complt.¶ 2.) New Rochelle first enacted an adult-oriented zoning provision in 1996 "relying on well-known and accepted empirical studies and evidence showing the blighting effect of such establishments and the need to carefully locate them." (Def. Post-Hr'g Brief Opp. Mot. Prelim. Inj. at 1.) However, the City maintains that it has always intended for adult-oriented businesses to be permitted in the LI and I Districts.⁶ (Id. at 4.) The City contends that there were numerous sites available for adult-oriented businesses when the Code was initially established, but recent events, such as the designation of an historic landmark, made numerous lots unavailable for this type of business. (Id.) In response to plaintiff's assertion at the commencement of this action that there were no available sites anywhere in the City that would allow an adult-oriented business to legally operate, New Rochelle proposed amendments to the Code. (Id.) The proposed amendments were set for a public hearing and adopted on June 14, 2005. (Def. Reply Post-Hr'g Brief Opp. Mot. Prelim. Inj. at 1.) The amended Code mandates that no adult-oriented business shall be permitted:

(1) Within 400 feet of another adult-oriented business; (2) Within 400 feet of a zoning district that permits residential dwellings as a principal use; (3) Within 400 feet of the property line of a school, house of worship, public park, public recreation facility, public community center, public library, or designated urban renewal area.

(Def. Post-Hr'g Brief Opp. Mot. Prelim. Inj. at 4-5 (quoting Proposed Amendments to Zoning Code § 331-112(A), annexed as Def. Appendix).) Additionally, "[a]dult-oriented businesses shall be located on lot(s) which are a minimum of 50 feet from the property line of any lot(s) containing non-conforming residential uses or private recreational facilities." (Id. § 331-112(G)(1).)

The establishment plaintiff desires to operate on its property would be considered an "adult entertainment cabaret" under the Code, which is defined as "`a public or private establishment which presents topless dancers, bottomless dancers, strippers, male or female impersonators or exotic dancers or other similar entertainment, either on a regular or sporadic basis, and which establishment is customarily open to the public generally but excludes any minor by reason of age.'" (Complt. ¶ 8 (quoting Zoning Code § 331-4).) The Code requires an establishment that plans to open an adult-oriented business to obtain a special permit use which the Board of Zoning Appeals must authorize. (Complt.¶ 10.) Section 331-89 of the Code sets forth the requirements that all special permit use applicants must satisfy and provides that a special use permit for an "adult entertainment cabaret" must be renewed annually. (Id. ¶¶ 11, 17.) Section 331-89, "in addition to authorizing the issuing agency to attach `such additional conditions and safeguards to any special permit, that are, in its opinion, necessary to insure initial and continual conformance' to the [C]ode, requires an application to satisfy the issuing agency that the `location and size of the special permit use, the nature and intensity of the operations ... are such that it will be in harmony with the appropriate and orderly development of the area in which it is located.'" (Id. (quoting Zoning Code § 331-89).) In addition, a special permit use applicant must also convince the issuing agency that the operation of the special permit use will be "no more objectionable to nearby properties by reason of noise, traffic, fumes, vibration or other such characteristics" than would uses permitted as of right. (Zoning Code § 331-89(B), (C).) Furthermore, Section 331-112 of the Code restricts adult cabarets to less than 5,000 square feet; requires that their exterior be "consistent with the character of the surrounding structures" and not "detract from the appearance of the neighborhood"; prohibits nude dancing that is lewd, indecent or grossly sexual in nature; and permits the Planning Board and Sign Review Board to impose terms and conditions for granting site plan approval, including restrictions on window displays, signage and hours of operation for adult-oriented businesses. (Complt.¶¶ 14, 15, 16.)

Plaintiff maintains that Sections 331-87, 331-89, 331-90 and 331-112 of the Code are unconstitutional under the First and Fourteenth Amendments for the following reasons:

(a) The ordinances unconstitutionally abridge freedom of speech and expression and impose an impermissible restraint on constitutionally protected expression; (b) The ordinances confer unbridled discretion on city officials to suppress constitutionally protected expression; (c) The ordinances are irrational, arbitrary and capricious because they do not further a substantial government interest; (d) The ordinances are not narrowly tailored to further any governmental interest; (e) The ordinances were enacted without relevant empirical information to support them; (f) The ordinances fail to provide alternative avenues of communication; [and] (g) The ordinances are unconstitutionally vague and overbroad.

(Complt.¶ 18.)

As mentioned earlier, an evidentiary hearing was held on May 23, 2005 and May 27, 2005 to determine whether, under the Code, alternative avenues of expression for adult-oriented entertainment exist in New Rochelle. Thus, we must now determine if there are any sites on which an adult-oriented establishment, such as the type plaintiff desires to operate, would be permitted to legally operate in New Rochelle.

II. Potential Available Sites

Adult-oriented establishments are permitted to locate in the I or LI Districts of New Rochelle and the potentially "available" sites can be found in three zones respectively denominated Areas B, C and D. Plaintiff maintains that there are only...