In Re Condemnation by Urban Redevelopment Authority

Rеalty property of New Garden Cor Pennsylvania Corpora poration; A by- the amount of alcohol While Executors, Administrators, tion; Its weight in the blood of: any Successors, Assigns per or other (i) .... greater an adult is 0.10% or any in the to have interest sons found added). (emphasis property, Here, dispute that Neil there is no (Chrisman) ve- operated a motor Chrisman Appeal of New Garden a blood-alco- having in Florida while hicle Corporation. and that such conduct hol content of .09% of Florida’s DUI Statute. was a violation Pennsylvania. Commonwealth Court However, if same conduct Chrisman’s 4, 2003. Argued Feb. Pennsylva- result occurred

blood-alcohol driving nia there would be no violation May Decided of alcohol. Based the influence facts, Secretary erred as a upon these by concluding that Florida’s

matter of law Pennsylvania’s DUI statutes were order of I would reverse the

“equivalent.” rein- Secretary Transportation driving privilege.

state Chrisman’s BY

In the Matter of CONDEMNATION AU

URBAN REDEVELOPMENT cer

THORITY OF PITTSBURGH City in the 22nd Ward of

tain land County, Pittsburgh, Allegheny

Pennsylvania, Redevelopment Area 51

(Federal North) being property of Realty Corporation; A

Pennsylvania Corporation; Its Admin Successors,

istrators, Executors, As any persons

signs other found property, interest

have Theatre, Inc.

Appeal by Ur-

In the matter Condemnation Authority

ban in the 22nd

Pittsburgh certain land Pittsburgh, Alle-

Ward of the Pennsylvania, County, Redevel-

gheny North) (Federal being

opment Area 51 Aaronson, appel- Pittsburgh,

Joel P. lee. SMITH-RIBNER, Judge,

BEFORE: JIULIANTE, FRIEDMAN, Judge, and Judge. Senior Judge BY SMITH- OPINION RIBNER. (New Theatre, Inc. Garden

The New Theatre) Re- and the New Garden (New Realty) ap- alty Corporation of the Court Com- peal from two orders first, County. The Allegheny Pleas of mon 24, 1999, preliminary dismissed June Theatre objections by filed New Garden filed the Ur- declaration of Pitts- Redevelopment Authority of ban (URA) May regard burgh Realty property owned City. in the Avenue at W. North 18, 2002, order, over- April dated second objections remaining preliminary ruled Realty to the declara- by New Garden filed taking. tion of questions whether New Garden Theatre barring a tenant trial court erred by eminent domain premises being taken objections when filing preliminary from written notice was not served with taking. Nеw Garden declaration of (1) follows: whether questions as states replace one taking by eminent domain another constitutes speech with form of (2) action; whether official “content-based” by faffing decide trial court erred in Pitts- last adult theater whether (3) relocate; able to burgh would be re- permits the First Amendment whether eminent do- officials to use development theater, at a exhibitions main to control only by an justified their action where eco- that it will foster theory unsupported (4) local offi- whether development; nomic Pittsburgh, ap- Georgiades, N. Peter scrutiny” “intermediate cials satisfied pellant. they where impact did not consider housing improving stock and upon speech their actions and failed to appearance. Early area’s in 1994 the new consider alternative courses of action that Mayor Pittsburgh, Murphy, Tom ap- accomplish objectives pointed Deputy Mayor without sacri- Tom Cox as Chair- ficing speech rights; and whether the man of sought way the URA. Cox trial court erred in considering completion accelerate planning I, § condemnee’s claim under Art. phase implementation and transition to the Pennsylvania Constitution rejecting phase. after approached He the founder and its First Amendment claim. director of the Factory, Mattress a muse- contemporary

um of art and a research development laboratory and for artists lo- cated a few blocks from the Redevelop- subject The property contains the Gar- ment Area. The Factory agreed Mattress Theatre, theater, den a movie which since participate in planning imple- and the 1970s has been used as an “adult the- process mentation for the Garden Theatre ater” as defined in Pittsburgh Zoning Block. Code. The trial court found that in the late 1960s the area near the intersection of Pittsburgh City December 1995 the Federal Street and North in Avenue approved Council the Redevelopment Pro- Central Northside District Pittsburgh Area, posal Redevelopment for the autho- was considered to be a neighborhood in rizing the URA move forward with re- decline in and need of January activities, renewal. A development including the $5 1989 report by the City’s Department acquisition of million forty-seven of all of the City Planning analyzed conditions in properties comprised contig- the three eight-square-block area including rising uous constituting blocks the commercial crime, bars, problem declining population, Redevelopment core of the Area. The Mat- loss of businesses and services and deterio- Factory tress plan submitted its master rating and underutilized buildings. The for the Garden Theatre Block to the URA report presence stated that the of an August adult in Proposed reuses of the theater negative added to a image; it rec- Garden Theatre performing included arts ommended certification of space music, dance, film, the area as special for events blighted and eligible for redevelopment conferences; by rental use a wide through Law, the Urban range for-profit not-for-profit orga- 24,1945, Act of May amended, nizations; P.L. as raising fund events and edu- §§ 35 P.S. 1701-1719.2. conjunction cational in programming with universities; local peri- businesses and After a hearing Planning Com- Factory perfor- odic venue for Mattress mission сertified the Federal North Rede- mance programming. programming velopment Area (Redevelopment No. 51 schedule was to tie into events such as the Area) blighted in February and a Children’s Festival and the Three Rivers planning team of participants was con- acquired forty- Arts Festival. The URA begin preparations vened to proposed for a properties amicably. six redevelopment plan. proposed goals included, of the redevelopment project in- The URA filed a declaration of on alia, ter removing existing blight May acquire that had 1997 to title the Garden in resulted disinvestments and prelim- abandon- Theatre. New filed Garden ment, encouraging objections, new commercial inary pre- invest- and the filed URA development ment and liminary objections preliminary and reinvestment ob- A. Similаrly, in G. & 29, 1997, for reuse. or taken of October jections. In its order Stern, Books, F.Supp. denied part Inc. v. granted the trial court (2d objections, preliminary part (S.D.N.Y.), the URA’s F.2d 288 Cir. aff'd, 770 parties issues. The thereby narrowing the 1985), that a renewal court held the same discovery. On engaged then extensive Square, which project for Times 27, 1998, Theatre filed May uses, not many adult did consti displace objections, nearly identical preliminary its restraint, regardless of the prior tute a Realty, and to those filed New project, because motivations behind 24, 1999, court by. its order of June the area suffered disputed objections on preliminary struck and the blight, from serious Following an extensive laches. basis of special singled out speech April trial, its order the trial treatment. objections of New 2002 dismissed that New Realty. The court found repre- action did Because the URA’s Realty had not met burden prior restraint sent a content-based palpable bad prove that the URA acted apply a trial court did not speech, free clear, and indubitable evi- precise faith taking. It scrutiny analysis to the strict dence, Redevelopment Au- citing ‍‌​‌​​​‌‌​‌​​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​‌‌​​‌​​​‌​​​​​‍Fleet v. intermediate applied instead the County Washington, thority of v. forth in States set United standard 169, 607 A.2d 311 Cmwlth. 367, 377, O’Brien, 391 U.S. the area rejected objections, similar where (1968): where 20 L.Ed.2d blight- designation as a met the criteria for has an incidental governmental regulation agree- no formal area and there was ed speech, it is constitu- protected on impact influence or indication of undue ment or justified sufficiently tional and faith. bad power of constitutional if it is within the rejected New Gar- The trial court also Government; im- if it furthers аn upon free Realty’s objections based den in- governmental portant or substantial court noted that the speech concerns. The terest; interest is governmental if the non-obscene, sexually ex- display right of free ex- suppression unrelated to right to see and the plicit pictures motion if incidental restric- pression; and by the First movies are such to the States Constitu- First Amendment free- alleged Amendment United tion on § by Art. tion and is essential to greater no than doms is However, the court found Constitution. of that interest. the furtherance content-neutral, rely- that the that the URA’s court concluded The trial Co. part upon Forty-Second Street ing re- property for urban condemnation (S.D.N.Y.1985), Koch, F.Supp. 1416 v. powers constitutional is within its newal that owner claimed an adult theater where redevelopment of that renewal and theaters, part of an as of his important and constitute an blighted areas prior re- project, was a urban renewal interest governmental substantial hostility. The court upon straint based expres- of free suppression unrelated hundred stressed that several that case Forty-Second Street from quoted It sion. area were to in a thirteen-acre businesses cavil beyond the effect that was Co. to down, some adult among them shut be suffered from ex- area at issue argue uses, could plaintiffs and the project that the traordinary blight and singled out buildings being were that their radically deal with it. attempt to being demolished blocks were when whole days to the within prong regarding provides thirty As fourth Code on filing taking, incidental restrictions First Amend the declaration of freedoms, the trial cited give Unit condemnor shall written notice Albertini, 201(2) ed States Code, condemnee. Section “ (1985). S.Ct. L.Ed.2d 1-201(2), P.S. states: ‘Condemnee’ inci Court stated there that an a property means owner of interest speech dental is no than greater burden taken, injured destroyed, or but does is permissible essential therefore mortgagee, judgment or include creditor so long regu O’Brien as the neutral 405(b) provides other lienholder.” Section promotes governmental lation a substantial by any the notice shall be served interest that would be achieved less effec competent adult “in same manner as a tively Further, the regulations. absent complaint assumpsit or writ of summons in the validity regulations of such did registered certified or mail depend upon judge’s agreement awith or, last known address of condemnee” responsible decision-maker to the most made, if such service cannot be then ser- appropriate promoting method for those by posting publica- vice shall be made interests. trial court found it clear tion. Garden Theatre objective of redeveloping the URA’s held where the Code general, preservation area and the service, specifies a method of such service redevelopment buildings Gar mandatory. Pittsburgh See den Theatre Block in particular, be Haffner, 80 Pa.Cmwlth. 471 A.2d 116 achieved effectively acquiring less without (1984) (eminent among domain statutes are the Theatre.1 construed). that be types strictly the are to

II that New Theatre also asserts by applying the trial court erred the doc Court turns first to the conten trine of laches. It cites German v. tion of New Garden Theatre that trial the of Philadelphia, (C.P.Pa.1995), 30 Phila. 513 by court barring errеd as a tenant from (Pa.Cmwlth.1996), aff'd, 683 A.2d 323 serting preliminary objections in its own petitioned appoint where an owner for right, when tenant never was served a board facto of of viewers for a de with filing written notice of the of years taking some seventeen after de declaration of required as under building. of a court Section 405 of the Eminent molition The trial Domain Code (Code), 1964, 2, Sess., although of laches Special Act June stated that elements of established, i.e., 84, amended, 1-405, inex § P.L. P.S. and had been there was 26 city an existing challenge delay prejudiced still and the was was cusable 405(a) early stage. delay, equitable at an is an de- that laches parties 1. The trial court noted is limited determin- that raised This Court’s review Books, arguments upon based Arcara v. Cloud ing court discre- whether the trial abused its Inc., 697, 3172, 478 U.S. 92 L.Ed.2d law; a tion committed an error of in case (1986), 568 where the held Court under Urban Law that test First the O’Brien and the Amendment authority Court must see that not implicated were not when bookstore was arbitrarily, in bad that it has acted faith or general closed statute health of statutory procedures preparing followed in applicability imposed that sanctions on non- no vio- plan and that there are constitutional activity. expressive The court declined de- Washing- In re Condemnation 110 lations. of light cide issue in of its that intermediate Street, (Pa.Cmwlth.2001). 767 A.2d 1154 ton scrutiny decision. 570, fense, Authority, Pa. 121 Cmwlth. was not available when sin Sewer Also, (1988), in sitting equity. not in 551 A.2d 376 in which was Commonwealth, Pennsyl 2 Pa. Avery Dist. v. cited v. Central School Crawford Board, (1971), 152 Pa. for the vania Labor Relations 276 A.2d 843 Cmwlth. (1992), holding nonprejudicial irregularities A.2d 1202 Cmwlth. that aspects for a con- improper pertaining procedural that it was of Court stated appeal taking. ‍‌​‌​​​‌‌​‌​​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​‌‌​​‌​​​‌​​​​​‍raise the not hearing trial court demnation invalidate a Finally, Perry, sponte. Similarly, Appeal 75 Pa. defense of laches sua of (1983), rights New Theatre that its 461 A.2d 916 Cmwlth. Court, Avery, rejected a claim of process citing to due law were denied because It cites signed not allowed to be heard. failure service because a wife husband, noting & Sharp Valley Forge separate Medical Center notice sent to a Inc., 221 A.2d Hospital, appellants Heart were not misled (1966), Frycklund Way, fully inten- were aware of the condemnor’s (1991), responds A.2d Pa.Super. tions. New Garden Theatre others, proposition Avery among Appeal Perry for the there was strictly governing attempt rules service must be some at service and defect adjudica- knowledge pеnding of a until after merits followed and raised ef- action defective service tion. does make

fective. agrees that the The Court doctrine 406(a) notes that Section URA apply laches in this action does l-406(a), Code, provides P.S. raising law and that the court erred objec- preliminary shall file condemnee Nonetheless, sponte. the rule of it sua days of served thirty being tions within Avery, Appeal Per City McKeesport, The URA with notice condemnation. applies Unlike the ry and O.S.C. here. emphasizes disputed it is not Corp. v. Board situation Pocono Pines New Garden Theatre A.2d Property, 10 Pa.Cmwlth. percent are both 100 owned grounds on other sub 719 vacated Androtsakis, presi- George who also Corp. Pennsylva Pines v. nom. Pocono dent, officer, mem- the sole the sole board Commission, 17, Pa. 464 345 nia Game entities; mаnager ber the sole both and (1975), A.2d 709 Garden Theatre’s New however, them was not the lease between by interest could not be discovered New Theatre admitted recorded. property and records because search tax of the URA’s it had actual notice Nevertheless, in the it was not recorded. 20, May declaration of no later than case, circumstances of this written peculiar filing of directed the and Androtsakis was received notice of the condemnation objections Re- preliminary by New owner, by person who was alty that time. officer, board mem president and the sole entities, which manager and both ber upon McKees The URA relies file trigger duty to was sufficient Leasing Corp., 656 A.2d port v. Delmar objections. preliminary (Pa.Cmwlth.1995), property where a 180 corporation had mortgagеe owner and a Ill secretary president the same same speech free issues the Court tax On notice of a sale proper advanced Further, argument turns first to the the URA was admitted. owner by the governed Ba- the URA that case v. Lackawanna River cites O.S.C. Co. 1093 Books, Inc., rule In Thiry of Arcara Cloud 478 tution to be a common nuisance. 92 568 Carlson, L.Ed.2d (D.Kan.1995), F.Supp. (1986).2 In Arcara an undercover investi- (10th Cir.1996), aff'd, F.3d gator illegal an activity witnessed sexual analyzed a claim of a First Amend propri- adult bookstore within view proposed ment violation where state etor, prostitution. and he solicited for property project condemn for a road A complaint civil an resulted order clos- owners, gravesite sacred to included ing year for one under provisions store plaintiffs and it stated that the had failed оf a health statute authorized show laws which conferred authori closing building prostitu- used for act, i.e., ty on con granting the state to tion and lewdness. The authority, anything demnation were other noted the crucial distinction from other general applicability. than neutral laws of First Amendment cases the sexual activity proscribed involved no element point On the merits of this protected expression. It held that “nei- that under Arcara the activ- press ther the nor may booksellers claim ity expressive restrained must have no special protection reg- from governmental element and the official restraint must be general applicability ulations of simply “generally applicable” rather selec- than virtue of their First Amendment applied. view, tively In its the admitted Arcara, activities.” 478 U.S. at change of the URA motive officials to S.Ct. at L.Ed.2d In a use of from building use to current explained footnote the court that the order arts, performing venue for cultural and prior was not a restraint because re- (with community porno- activities a ban on spondents carry were “free to on their uses) graphic possibility to increase the bookselling location, business at another marketing buildings other in the area find,” even if such locations are difficult to expressive being shows that conduct is re- nothing the order had do with Further, strained. that Ar- contends expressive n2, conduct. Id. at 705 cara and other have cases referred laws n2, S.Ct. at 3177 92 L.Ed.2d at n2. persons restrain all at all times as applied This Court Arcara Common- “regulations general applicability,” such wealth ex rel. Danny’s Preate v. codes requirements sewage fire Bookstore, Adam & Eve 155 Pa.Cmwlth. However, treatment. a distinction is 625 A.2d 119 upheld maintained as to whose application laws injunction against video and dance booth upon based “individualized assessments” area uses of adult stores that were used officials, by zoning regulations gov- such as for illicit activity creating public sexual erning applications per- health for conditional use dangers declaring under a statute any building used for prosti- lewdness and mits.3 Realty

2. New question Garden asserts that the of the Garden Theatre the First violates I, § argu- Amendment or Art. 7. The applicability of the URA's present of Arcara to the ap- the ment that First Amendment does not properly case is not the before Court because scope ply within of the that debate. The the cross-appeal URA did not file a the from Court, argued URA has to Arcara the and order, citing trial court's Sateach v. Beaver Realty responded New Garden has on the Zoning Hearing Appeals, Meadows Board of merits. (Pa.Cmwlth.1996) (where 676 A.2d 747 an appellee addresses an issue not raised Realty 3. New Garden also appellant cross-appeal, or addressed a Pennsylvania Supreme rejected Court Arcara Here, waived). however, Erie, issue is deemed analysis City A.M. v. of 375, II), overarching taking (Pap's issue is whether URA's 812 A.2d 591 when the 96 S.Ct. L.Ed.2d 346 agrees Amend- 425 U.S. First (1976). right Ar- of ex may disposed of under This access been issue be viewing Law is a of adult films. Erznoz cara. The Urban tended to Jacksonville, empowers applicability City law of general nik (1975). the URA to combat authorities such as 45 L.Ed.2d redevelop- blight promote and to economic States Court has The United Rede- ment. See Section Urban requires the First Amendment stated that Law, velopment a 85 P.S. Where effectively denying that a refrain from city made, the blight has been determination oper- to persons opportunity a reasonable remedies, empowered propose URA is city, theater in the even where ate adult domain is one power and ‍‌​‌​​​‌‌​‌​​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​‌‌​​‌​​​‌​​​​​‍eminent restricting regulation a “content-neutral” pro- may implement its tool that use Renton v. locations involved. 9(i), 12.1, add- posals. See Sections Theatres, Inc., 41, 106 Playtime 475 U.S. 23,1978, 2 of Act of June ed (1986). Forty- L.Ed.2d 29 S.Ct. 17096), §§ P.L. P.S. stated that Co. the court Second Street exercise 1712.1. Under Arcara the URA’s may no more effect an uncon- government generally applicable power to use emi- do- purpose through eminent stitutional blight nent did not domain combat through zoning, injunctions, main than “time, place into a transform the or other methods. proseсutions criminal speech. on free manner” restriction in G. decisions in that case and The court’s Books, part on & A. Inc. were based IV finding availability sexually explicit conclusion, Notwithstanding the above not be material in the midtown area would to consider proper Court deems it severely because several dozen affected Realty’s First Amendment other within adult uses would remain blocks ar- Realty first arguments. New Garden Realty as- project area. New Garden in rejecting strict gues that the the trial court failed resolve serts that scrutiny failed to address whether review availability of dispute factual as to the Theatre will leave sites. alternative ample avenues communica- alternative themes, Realty also con films tion of with adult which was applies scrutiny con- strict review Realty’s principal tends that one of New Garden purpose pre the URA’s stated asserts because tentions. New Garden Redevelop films cluding if it adult from destroyed use present will be im change “negative is to There is ment Area Theatre. ousted from from that, in its results age” opinion, right person of each a concern for must showing films. adult Strict express to be heard but also be free to government form of ac applied to corollary right to access. be suppresses, disadvantages Pharmacy v. Vir- tion that Virginia Board State Council, Inc., of its content. speech burdens because ginia Citizens Consumer jurisprudence. this support no in state’s Scalia and Thomas that Justices court noted However, re- court did not City Erie the judgment in with the concurred of appli- AM., analysis per rather its ject se but Arcara 120 S.Ct. 529 U.S. nudity that the court thоught a ban on they that cation to because L.Ed.2d danc- prohibiting be aimed at nude banning public nudity did deemed to not an ordinance all, was of ing, held a form at which the court expression question raise of a expressive conduct. position that this found and the court stated FCC, Broadcasting System, subjected Turner URA Inc. action should not be L.Ed.2d scrutiny strict as a content-based restric- (1994). responds, among The URA tion rights. on First Amendment things, proposal pre- other that is to buildings

serve and restore all the at a V cost of million and that the Garden $12.4 building largest Theatre is the and most Realty argues next centrally located on the block and its ac- that the that holding erred quisition is necessary to URA insure site the URA’s action satisfied intermediate Although control. there is evidence that Renton, scrutiny. again City It cites of participants process some planning 47, 106 475 U.S. at S.Ct. at 89 L.Ed.2d that believed the adult theater added to at the Court held that where “so-called negative image, only direct evi- time, place ‘content-neutral’ and manner dence of URA’s view was its acknowl- regulations acceptable long they are so edgement that general perception that designed govern are serve a substantial part nega- the Garden Theatre was unreasonably mental interest and do image tive was a factor in the URA’s deci- limit alternative avenues communica uses, sion not to new along include adult Realty tion.” that New Garden asserts uses, with bars other the list of the trial court’s failure to decide whether permitted uses contained in 6.2.1 ample of communicating alternative means Redevelopment Plan. precludes adult exhibitions remаin a find argues govern- The URA that where ing scrutiny satis intermediate was regulate action does not on its face responds assuming fied. The URA speech, the burden on challenger applies, intermediate the trial prove suppress an intent content. In court did not err or its discretion abuse Renton the Court re- determining that it was met. The URA versed the invalidation of zoning ordi- dispute it is beyond contends that that its nance that restricted the location adult goal redeveloping theaters. The court concluded that effectively Area would be achieved less time, ordinance a content-neutral taking, citing without the Albertini. place regulation. Forty- and manner specific finding URA Street Second Co. the court noted the unreasonably plaintiffs’ many reference to com- hostile limit alternative avenues cоmmunication ments toward their films that were scat- First, regula unlike a required. throughout tered the documentation for prohibiting dancing generally or tion nude project pointed renewal but out that theaters, restricting the of adult locations several hundred businesses would be single property has no in a closed neutral fashion. The court com effect other alternative avenues of hostility stated that “mere to speech which Further, munication. Project incidentally will be burdened viewing means of admitted that alternative primary purposes other insuffi- purchase such adult movies as rental cient. ...” 613 F.Supp. URA In Golden Tri video stores are available. acquiring has articulated several bases for News, Corbett, angle Inc. v. 689 A.2d speech, to content of theater unrelated (Pa.Cmwlth.1997) (Golden I), O’Brien, Triangle agrees cases, pointed patrons out if of adult City Renton the trial Court and similar in the concluding court not err in stores did not wish to view videos did 1096 in failing analyze required by stat- abused its discretion and booths

well-lit visible ute, independently Realty’s renting they had the alternative of I, § Pennsylva- Art. them at home. claims under watching them and nia Constitution.4 URA the intermediate agrees The Court speech of particular restriction where met this scrutiny test case. was re- determined not to be content-based prongs first of the O’Brien test are three restraint, I, § Art. 7 prior striction or The- Although met. New Garden clearly require a or more strict does not different of its status as the last atre makes much required for of than is standard review City Pittsburgh, adult theater within time, place and manner restrictions redevelop- building its Amendment, review the First which necessarily elimi- purposes ment dоes already performed. that the trial court of communica- nate reasonable alternatives Triangle In in Golden Trian Golden and City tion. In Renton Corbett, News, 1056 Inc. v. 700 A.2d gle suggest- “we never Court stated that have (Golden (Pa.Cmwlth.1997) II), Triangle compels ed that First Amendment News, Triangle nom. Golden sub aff'd theaters, ensure that adult Government to Fisher, 71, Pa. 717 A.2d 1023 Inc. v. 553 busi- any speech-related other kind (1998), the “least stated matter, will able to nesses for that be forth in Insur restrictive” standard set Id., bargain prices.” 475 obtain sites at Adjustment ance Bureau Insurance 54, 932, 89 at U.S. at L.Ed.2d S.Ct. Commissioner, Pa. 542 A.2d further stated that The court case, involving (1988), to that apply did required only that the First Amendment time, only place and manner restrictions. re- city effectively denying refrain from reply In brief spondents opportunity a reasonable City A.M. heavily upon relies open operаte and an adult theater within (2002) Erie, 571 Pa. 812 A.2d 591 easily city, and the ordinance met II), (Pap’s which was decided December here contains requirement. The record 19, 2002, after the trial court’s decision. private investigator testimony of written Erie, City Pap’s A.M. v. Jerry locations and detailing Mailzech I), and (Pap’s rev’d 719 A.2d materi- that feature adult around remanded, S.Ct. booths, als, including places some with (2000), 146 L.Ed.2d 265 rented. The Court is may where videos be on a First Amend- Supreme Court relied amply that the record shows satisfied analysis concluded that a blanket type access to materials featured against appearing ban in an ordinance curtailed Theatre will be nudity content- a state of taking. under the dancing in nude based restriction aimed at VI establishments, did not sur- certain that, scrutiny. The United States Realty argues vive strict Finally, New Garden plurality A con- satisfy Supreme Court reversed. assuming the action would URA’s criteria, was a content- cluded that the restriction First Amendment Commissioner, Pa. reau v. Insurance provides: “The free communi- 4. Article the court stated that 542 A.2d 1317 thoughts opinions one cation of man, commercial rights every would first consider minimum citizen invaluable speech under the First Amendment may freely print standards speak, ‍‌​‌​​​‌‌​‌​​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​‌‌​​‌​​​‌​​​​​‍write and whether resolution being and then consider subject, responsible for the abuse I, § 7. Adjustment appropriately treated under Art. liberty.” Bu- more In Insurance time, place neutral regulation and manner an intent to restrict adult demonstrates passed area, that muster under films in the intermediate burden is scrutiny. government there to show is no less intru- sive, practicable method available to effect remand, On legitimate, important governmеntal inter- agreed Court that dancing expres- nude is ests. Here officials never considered al- sive subject protection conduct is be ternatives that would less destructive of I, 7,§ under Art. which is broader than protected speech and less restrictive than that under the First The Amendment. theater from its owner. court reaffirmed its Pap’s conclusion attempt the ordinance was an obvious First, The disagrees. nei expression burden It itself. held inde- Pap’s II ther nor the cases discussed I, pendently § under Art. 7 that an inter- Arcara-type therein address an situation. mediate of scrutiny level is inappropriate reasoning Pap’s The Court sees no II when expressive conduct such as nude contrary rule of sensible dancing is involved. a adopted The persons may special Arcara that not claim “unitary standard” for prоtection such cases as it had governmental from regulations Bureau, Adjustment Insurance of general applicability simply by involv- virtue of ing speech, speech commercial a their free invalidated activities. The Court statute that barred certain pro- Pap’s require insurance believes II does not fessionals from “least soliciting analysis, victims of intrusive means” or indeed catas- trophes twenty-four any speech analysis, for hours. free where enforce The court “regulations stated ment of a of general applicability aimed law such barring fire dancing, speech. nude no as a code has some effect on regulations less than above, As noted regards the Court speech, commercial require that project redevelop we multi-million dollar carefully ‘tread where restraints are blighted general area as imposed if the exercise of intrusive, ... there are less statutory practicable authority welfare. methods available to effect le- gitimate, important government inter- I, addition, § if the Art. ” II, ests.’ 571 Pa. at 812 A.2d applied, “least intrusive means” review is (quoting Adjustment Insurance Bu- the Court test convinced reau, 1324). Pa. at 542 A.2d at satisfied. The record indicates that legitimate Because the government inter- redevelopment plan was arrived at after est in deterring sex crimes could ac- be years study. The URA determined in complished less restrictive means than expertise correcting certified barring nude dancing, the court held blight require acquisition of all the ordinance unconstitutional. properties in the three-block area and according concludes that their reuse to a coordinated Pap’s II means that in plan. case multiple which overall uses proposed contemplation communication within property for the Garden Theatre were cen involved, Art. 7 is plan development. intermediate scruti- tral to the overall ny may applied; only not be rather proper acquiring The alternative standard is the “least acquiring permitting restrictive means” atre it and Also, it is, test. states that even governmental where offi- to continue as but motive, legitimate cials blight assert a concur- of a redevelopment large interest speech rent motive restrict seriously raises ed area would have been under issue, constitutional when if destroyed the record mined or that alternative had Area). Hence, (Redevelopment The URA least intrusive No. pursued. beеn the Theater eminent do- took the Garden legitimate gov- accomplishing means for Redevelopment under the Urban Be- main employed. ernmental interest presence of an because the “adult” Law1 the trial court did not err abuse cause negative image to discretion, movie theater added the its order affirmed. its (Trial Redevelopment Area. the ORDER 3.) op. showing “adult” mov- Instead of Theatre, NOW, May, ies at the the URA day 19th New Garden AND presenta- planned to for use theater of Common Pleas order the Court arts, special performing is affirmed. tions Allegheny County showing for the of “non-adult” events and Concurring Dissenting Opinion by films. Judge FRIEDMAN. (New Realty Corporation I dissent. respectfully concur and theater, Realty), which owns (1) majority the re- agree with the that: objections taking, filed ceipt of condemnation of -written notice matter is now court overruled. The trial Theatre, of the New Garden owner appeal to this court. Theatre) (New triggered a Inc. Applicability of Arcara I. preliminary objections, (majori- duty to file (2) law, 1092); ty op. at under federal Although trial court found unnec- subject to strict scru- condemnation is whether the U.S. Su- essary to decide tiny on free as a content-based restriction appli- in Arcara is preme decision Court’s Amendment, speech rights under the First (see 24), here, op. at trial court cable (3) 1095); (majority op. at condem- court’s decision majority affirms four-prong intermedi- nation satisfies rea- following For the based on Arcara. ate test set forth United States ap- sons, I that Arcara does not conclude O’Brien, 1673, 20 U.S. ply here. 1096). (1968), (majority op. at L.Ed.2d 672 public pro- Arcara a state health law issues, I my on these Despite agreement any building to vided for closure found (1) that: disagree majority with the nuisance, public which is de- be a health in Arcara Supreme decision Court’s place to in the law include fined Inc., Books, 478 U.S. Cloud a law prostitution and lewdness. When is appli- S.Ct. L.Ed.2d 568 instances enforcement officer observed here, 1093-94); op. (majority cable an activity at prostitution and lewd “adult” not violate the the condemnation does bookstore, a was filed complaint civil guaranteed by Ar- right expression free seeking closure against the bookstore I, Pennsylvania Con- ticle Section public The book- health law. 1097-98). stitution, op. at (majority that the closure would argued store owner 9, 1997, Redevelop- right the Urban First Amendment May On interfere with the (URA) Pittsburgh filed The U.S. Authority of “adult” books. sell rejected argument, holding acquire title Court declaration implicated by Theatre, is not “adult” movie First Amendment public health law of designat- area the enforcement blighted in a theater located against a store which general application Area ed the Federal North amended, 24, 1945, §§ May 35 P.S. 1701-1719.2. P.L. ofAct happens sell books. Arcara. 7 of Article provides: Constitution “The communi- explained that the health law free of thoughts opinions cation and is one of activity” having directed “unlawful rights [people], every the of invaluable nothing to do with the the books may speak, print freely citizen write First Amendment could not be used as a subject, any being responsible for the obviously public “cloak for unlawful sexual Const., I, liberty.” of that Pa. Art. abuse 705, 707, conduct.” Id. 106 S.Ct. 3172. § guarantee This is than the 7. broader Here, the URA did take the New guaranteе speech in of free the First Garden Theatre domain under eminent Erie, Amendment. AM. v. City of the Redevelopment Urban Law because A.2d {Pap’s and, thus, was a place activity unlawful II). fact, In during long legal history, public constituted a nuisance.2 The URA Pennsylvania forged path, in- its own took the only New Garden Theatre be- dependent of government, the federal cause the theater’s showing of lawful analyzing involving expression. issues free “adult” negative movies added the im- See id. age of Redevelopment the Area. Because I, considering Article 7 in this Law, the Redevelopment Urban applied case, the first question is whether the case, in this is general not directed at taking URA’s New the Garden Theatre activity unlawful public constitutes a content-based, i.e., based on the the- but, rather, nuisance is specifically direct- films, showing ater’s of “adult” or whether ed at the “adult” theater movie and its taking is content-neutral. Id. To make secondary neighborhood, effects on the Ar- determination, it is to exam- necessary cara simply does not apply.3 ine both the stated the unmentioned purposes taking. of the Id. Where I, II. Article Section 7 government purpose stated of a action is inextricably up bound the suppression with Although court did not consider expression, government whether taking the URA’s of the New action Id. content-based. right Theatre violated the to free expression guaranteed I, by Article Sec- Here, the URA took the New Garden Constitution, tion 7 of presence Theatre because the of an “adult” the majority affirms the trial court’s deci- negative image theater added to I, sion based on Article Section 7. Unlike Thus, Redevelopment unmen- Area. majority, conclude Article purpose taking tioned of the to elimi- requires Section 7 reversal the trial showing nate the of “adult” movies court’s above, decision. Redevelopment As Area. indicated 12.1(c)(1) 2. I note concurring opinion, that section of the Urban In her O’Con- Justice Law, 1712.1(c)(1), nor, Stevens, 35 P.S. joined Justice stated if a blighted property defines to include city were to close an "adult” "be- bookstore which, use, premises public because of its is a perceived secondary of the cause effects of However, nuisance at common su law. our purveyor neigh- having a such books in preme showing court has held that "adult" borhood, clearly implicate case public movies does not constitute nuisance Arcara, First Amendment concerns...." at common law. Commonwealth v. Mac J., (O’Connor, U.S. at Donald, (1975). Pa. A.2d concurring). Therefore, law, aas matter of the New Gar showing den Theatre’s of "adult” films does constitute nuisance. taking The- showing URA’s planned the URA to continue Theatre, atre the strict test. fails films at New Garden but course, Of this means “adult” films. improv- if I were to conclude Even purpose the URA’s stated image compelling ing neighborhood’s inextricably New Garden Theatre is bound interest, I conclude government would not suppression protected ex- up with the that the URA’s making the action con- pression, URA’s means Theatre was least restrictive tent-based. example, For accomplishing purpose. taking plans URA’s of the New apparent Because the it is that the URA’s content-based, Redevelop- was it in the properties Garden Theatre taken other Pennsylva image subject scrutiny negative improve to strict ment Area will scrutiny pass Redevelopment nia law. Id. To the strict Area bur- without Moreover, test, must if the government entity expression. show dening free narrowly accomplish needs different Redevelopment its action is drawn Area interest. See compelling governmental the renewal kind of theater stimulate Erie, Pap’s support can neighborhood, A.M. v. the URA (1998) I). If the (Pap’s a theater else- 719 A.2d the construction of such can government entity goal Considering achieve in the where area.5 means, government’s to accom- less restrictive less means there are restrictive sup- is not con protected expression which do not plish goal burden the URA’s II. I con- press protected expression, stitutional. taking the New the URA’s clude that considering facts before us After Theatre the strict fails here, I failed to conclude that the URA test for that reason. it interest in tak- prove compelling had a ing the Theatre. URA’s taking URA’s that the Because believe interest in the New Garden Theatre Garden Theatre violates the New image improve negative was Ar- expression guaranteed by right to free However, Redevelopment Area. the facts Con- ticle (1) Area are these: stitution, I would reverse. in need of renewal

had been in decline and (2) 1960’s; the New late

since the films since the

Theatre has shown “adult” (3)

1970’s;4 process redevelopment did 1989; the URA’s begin until not filed until

declaration of if had a Certainly, government

1997. improving the dec-

compelling interest Redevelop- image of the negative

ades-old Area, government would have before 1997. compelled to take action

been interest, compelling government

Absent a will decide Perhaps blighted area 4. Given the fact 1960’s, Garden Theatre showing change its use of the New apparent ‍‌​‌​​​‌‌​‌​​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​‌‌​​‌​​​‌​​​​​‍after rede- clientele accommodate different neighborhood did not "adult” films in complete. velopment blight. cause the area’s

Case Details

Case Name: In Re Condemnation by Urban Redevelopment Authority

Court Name: Commonwealth Court of Pennsylvania

Date Published: May 19, 2003

Citation: 823 A.2d 1086

Court Abbreviation: Pa. Commw. Ct.