73 N.Y.2d 544 | NY | 1989
Lead Opinion
OPINION OF THE COURT
Petitioner, Town of Islip, seeks to enjoin respondents from continuing operation of an adult bookstore in a prohibited zone in violation of the Town’s zoning ordinance. The ordinance differentiates between certain "adult” uses, i.e., bookstores, theaters, motels, cabarets and massage parlors which exclude minors by reason of age and those which do not, and limits the operation of adult uses to areas zoned Industrial I. It also provides that nonconforming adult uses shall be amortized over a period of years based on a graduated scale of investment in the business.
In a thoughtful and comprehensive opinion by Justice Arthur Spatt the Appellate Division, Second Department, held that the portion of the ordinance that restricted adult uses to the Industrial I zone was a valid exercise of the Town’s zoning power because it restricted only the time, place and manner of respondents’ rights, that it was neither vague nor overbroad and that it provided a lawful means of amortizing noncon
I
The Town of Islip is located on the south shore of Suffolk County on Long Island. It consists of 92 square miles of territory and has a population of about 300,000 persons. There are four villages and several hamlets in the Town, each with its own downtown district. In the 1970’s, the Town was faced with an unregulated proliferation of adult uses in these downtown districts and its officials, with the help of professional planners, undertook a detailed study of their effects on the surrounding community. Thereafter, a written report was prepared for the Town, the "Study & Recommendation for Adult Entertainment Businesses” (Report), which indicated the nature of the governmental interest to be protected, i.e., the stability and revitalization of the neighborhoods, and also the harm that adult businesses posed to that interest. It demonstrated, by analysis of each adult entertainment business, the harmful effect of these uses on the surrounding area, and how those effects could be mitigated by relocating the businesses. The study was prepared following the United States Supreme Court’s decision in Young v American Mini Theatres (427 US 50, reh denied 429 US 873) and, consistent with that decision, it recognized the First Amendment concerns involved and sought to accommodate the rights of proprietors with the legitimate goals of sound planning and land use regulation.
Based upon this study, the Town formulated its first written comprehensive plan of community development focusing on revitalizing downtown business areas and reaffirming the identities of its various villages and hamlets. On September 23, 1980, pursuant to the plan, it adopted the adult use ordinance now under consideration. The ordinance attempts to phase out and relocate existing adult uses through a schedule of amortization based upon the user’s investment in the business and to control future adult uses by limiting their establishment to Industrial I districts.
II
Analysis starts with a recognition of the broad power of municipalities to implement land use controls to meet the increasing encroachments of urbanization on the quality of life (see generally, Euclid v Ambler Realty Co., 272 US 365; Asian Ams. for Equality v Koch, 72 NY2d 121; Matter of Harbison v City of Buffalo, 4 NY2d 553). These restrictions on the use of real property rest upon and are justified as a proper exercise of the police power to advance the public health, safety and welfare (Berman v Parker, 348 US 26, 32; Udell v Haas, 21 NY2d 463, 469-470). Because zoning ordinances are legislative acts they enjoy a strong presumption of constitu
Undeniably, the purpose of preventing the deterioration of neighborhoods, including downtown business districts, comes well within the confines of the public welfare that defines the limits of the police power (see, Berman v Parker, 348 US 26, 32-33, supra; see also, 1 Anderson, New York Zoning Law and Practice § 9.27, at 442 [3d ed]). Moreover, planning studies have established that adult bookstores and other adult entertainment facilities are generally injurious to the maintenance and development of healthy commercial and residential areas (see, Toner, Regulating Sex Businesses, American Society of Planning Officials Planning Advisory Service Rep. No. 327 [19]; Interim Report, Boston Redevelopment Authority, Entertainment District Study [Apr. 1974]; see also, Young v American Mini Theatres, 427 US 50, 54-55, supra, relying on District Court’s findings, at 373 F Supp 363, 365; Northend Cinema v City of Seattle, 90 Wash 2d 709, 711-712, 585 P2d 1153, cert denied sub nom. Apple Theatre v City of Seattle, 441 US 946). Accordingly, many municipalities have attempted to control such uses, either by aggregating them (e.g., Renton v Playtime Theatres, 475 US 41) or dispersing them (e.g., Young v American Mini Theatres, supra).
When the municipality’s zoning power is used to regulate bookstores or theaters operating lawfully, however, a First Amendment dimension is added (see, Young v American Mini Theatres, supra; Smith v California, 361 US 147, reh denied 361 US 950). Regulation must not be aimed at suppressing the content of the material shown or sold (Renton v Playtime Theatres, supra, at 47-48; Young v American Mini Theatres, supra, at 67, 71, n 34 [plurality opn]; id., at 79-80, 81, n 4 [Powell, J., concurring]). Notwithstanding this broad injunction against suppressing speech, the Supreme Court has sustained zoning ordinances regulating adult uses, holding that under the Federal Constitution they were not content-based
Petitioner’s ordinance meets Federal constitutional requirements under the Renton test. The "predominant purpose” of the Islip officials in enacting their ordinance was to eliminate the secondary effects of adult uses and to attempt to control future development in the business districts, not to regulate expression.
Contrary to assertions by the dissent (see, dissenting opn, at 567-568), the Town’s ordinance was predicated on its own study as well as the studies of ordinances prepared by other municipalities. As it related to respondents’ use, the study concluded that there was a "dead zone” in downtown Bay Shore caused, at least in part, by respondents’ store and the adjacent adult theater. Those uses, it found, adversely affected the traffic of customers in the area, resulting in a loss of business of nonadult entertainment stores, and, in the words of the Report, "delayed the upsurge” of downtown Bay Shore. Insofar as other adult uses were concerned, the ordinance did not require six of them (43%) to move and it rezoned some lands Industrial I to accommodate one adult bookstore at its existing location. These actions hardly indicate a purpose to suppress speech because of its content and support the Town’s submission that the predominant purposes underlying the regulations were legitimate zoning concerns (see generally, Yen, Judicial Review of the Zoning of Adult Entertainment: A Search for the Purposeful Suppression of Protected Speech, 12 Pepperdine L Rev 651; Note, Motivation Analysis in Light of Renton, 87 Colum L Rev 344).
The governmental interest supporting the ordinance is the eradication of the effects of urban blight and neighborhood deterioration and furtherance of the general underlying purpose of zoning, the enhancement of the quality of life for the Town’s residents. Studies relied on and prepared by the Town demonstrated that the location of adult businesses in certain areas heightened public apprehension about entering them, thus driving out traditional downtown businesses as customers avoided locations near adult bookstores, increased criminal activity and lowered nearby residential property values. To be sure, planning studies, by their nature, are not scientific nor their predictions certain but the Town was entitled to credit the evidence in its study of past deterioration and the prediction that, unless remedied, the deterioration would continue; it was not required to wait before acting until its business
Similarly, we note that petitioner’s ordinance is narrowly tailored to affect only those uses shown to produce the unwanted secondary effects (cf., People ex rel. Arcara v Cloud Books, 68 NY2d 553, 558). Respondents fault the ordinance for failing to regulate all bookstores and theaters. The ordinance would be invalid, however, if the Town attempted to zone all theaters and bookstores to an Industrial I zone out of fear the ordinance would be judged content-based if it did otherwise (although it found only adult bookstores and theaters caused the unwanted secondary effects), because it would sweep more broadly than necessary to cure the proscribed evil (see, Hart Book Stores v Edmisten, 612 F2d 821, 830, cert denied 447 US 929).
Respondents also contend that the ordinance is suspect because it does not restrict other noxious uses, such as bars and pool halls, to Industrial I zones.
Finally, the ordinance meets the Supreme Court’s requirement that it provide alternative locations within the Town for adult use businesses (compare, Schad v Mount Ephraim, 452 US 61, 66, supra; Basiardanes v City of Galveston, 682 F2d 1203, 1213-1214; CLR Corp. v Henline, 702 F2d 637, 639, with
Petitioner presents a far stronger case for sustaining its ordinance than the case in which the City of Renton was successful. Petitioner’s ordinance does not suffer from the underinclusiveness of the Renton ordinance, which excluded massage parlors and adult bookstores, thereby suggesting to Justice Brennan in his dissent (Renton v Playtime Theatres, supra, at 57) that the municipality was not so much interested in controlling the secondary effects associated with adult businesses as it was with discriminating against certain uses because of content. Petitioner’s ordinance made all adult entertainment businesses causing adverse secondary effects subject to the zoning ordinance. Even more significantly, the City of Renton amended its zoning ordinance only after the lawsuit was brought. It conducted no independent studies to identify the harmful secondary effects of each business and establish their existence, as petitioner did, but relied solely on the experiences of other cities. Finally, in Renton, the Federal Court of Appeals made a finding that limiting adult theater uses to the zoned areas was a "substantial restriction on speech”, noting that the zones in which adult uses could operate were not available for immediate use (748 F2d 527, 534, supra). Here, under the stipulated facts it appears that there remains ample space available for adult uses. Respondents do not claim that if the ordinance is enforced the total number of adult bookstores will decline or that fewer potential customers will be able to conveniently patronize them (see, Note, City of Renton v Playtime Theatres, Inc: Court-Approved Censorship Through Zoning, 7 Pace L Rev 251, 279-287 [analyzing the particular weaknesses in the City of Renton’s case]).
ra
This determination does not end the inquiry, however, for respondents contend that even if petitioner’s ordinance is
Respondents’ claim rests on recognized principles of federalism. State courts are bound by Supreme Court decisions defining Federal constitutional rights but those rulings establish a minimum standard which State courts may surpass so long as their holdings do not conflict with Federal law. Thus, even though the ordinance before us meets Federal standards, under our Nation’s system of multiple sovereignties, New York may interpret its own Constitution to extend greater protection to its residents. A number of considerations are involved in determining whether it does so (see, People v P. J. Video, 68 NY2d 296, 302-303; see also, People v Alvarez, 70 NY2d 375, 378-379, supra). Foremost among those pertinent to this case is a recognition that freedom of expression in books, movies and the arts, generally, is one of those areas in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that the subject is governed essentially by community standards (Miller v California, 413 US 15), and, as we have said before, New York has a long history and tradition of fostering freedom of- expression, often tolerating and supporting works which in other States would be found offensive to the community (People ex rel. Arcara v Cloud Books, 68 NY2d, supra, at 557; People v P. J. Video, supra, at 308-309). For the reasons that follow, however, we conclude that a municipality may, under the circumstances presented, restrict adult business uses to certain areas of the community without violating the State Constitution.
Preliminarily, the nature of the regulation must be examined.
Governmental action may restrict speech either intentionally or incidentally. Intentional restrictions are directed at the message conveyed, either its content or the time, place and manner in which it is disseminated. Generally speaking, if the regulation is content-based it is presumptively invalid and therefore subject to strict scrutiny. However, content-neutral
To avoid being subject to the higher level of scrutiny for content-based restrictions, petitioner’s ordinance does not mention the nature of the material purveyed but defines the uses regulated as those which exclude minors from the premises by reason of age. By so doing, the ordinance allows proprietors to define the uses themselves. Nevertheless, respondents contend that petitioner’s ordinance indirectly identifies uses by the content of the material sold and, therefore, content-based analysis should govern. Petitioner maintains that the ordinance does not regulate content, but only the location of adult uses, and, therefore, time, place and manner analysis is appropriate.
We find neither of these arguments controlling. Although the ordinance addresses only adult uses, it was not a purposeful attempt to regulate speech and its effect on expression is only incidental. The Town did not single out adult uses for regulation because of any hostility to the views expressed in the material they purveyed or in an attempt to insulate the public from their messages but because they produced injurious effects on the Town’s neighborhoods.
That the Town’s action was justified by concerns unrelated to speech does not end the inquiry, however (cf., Arcara v Cloud Books, 478 US 697). The dispositive question is whether the Town went too far and enacted an ordinance that had an impermissible incidental effect abridging free expression (see generally, Day, Incidental Regulation of Free Speech, 42 Miami L Rev 491, 499-500, 523-524, 527-528). The applicable State standard for reviewing such regulation is found in People ex rel. Arcara v Cloud Books (68 NY2d 553, supra).
In Arcara the Erie County District Attorney attempted to close a bookstore for one year pursuant to provisions of the Public Health Law relating to public nuisances. He did not claim that the bookstore was guilty of any criminal act, only that customers were engaging in illegal sexual activities on the premises. The District Attorney did not claim that he had attempted to arrest the customers, enjoin their conduct or undertake some less drastic action before closing the bookstore. We found the closure incidentally affected speech and, applying the four-part test of United States v O’Brien (391 US 367, 377), held that although the District Attorney’s action satisfied the first three parts of the test, it could not be sustained because he had failed to demonstrate that the regulation was no broader than necessary to achieve his
On appeal, the Supreme Court reversed, holding that O'Brien did not apply because the District Attorney’s purpose was to prevent conduct by individual customers which had no expressive component and the harm to the bookstore was too remote to implicate First Amendment concerns. On remand, we applied our State standards, concluding that the regulation did indeed affect the bookstore’s rights and held that, under our State Constitution, regulation designed to carry out legitimate and important governmental objectives which incidentally burdens free expression may be sustained only if the State action is "no broader than needed to achieve its purpose” (People ex rel. Arcara v Cloud Books, 68 NY2d, supra, at 558). Although the stated purpose of the District Attorney was not to regulate the content of expressive material, there were obvious means for directly policing the illegal conduct without closing premises on which a lawful business was being operated. In the absence of evidence that such means were not adequate we judged the relief requested by the District Attorney broader than necessary to control the illegal conduct.
The dissenters construe Arcara in absolutist terms contending it requires proof in every case that alternative remedies have been attempted without success and that the proposed regulation is therefore appropriate and no broader than necessary to address the problem. They equate the "no broader than necessary” test with the "least restrictive means” standard used in First Amendment analysis to test regulations incidentally burdening speech and assert that petitioner has failed to satisfy that test.
In this case, unlike Arcara where the asserted governmental interest could have been secured by criminal proceedings or injunction, the adverse affects of adult uses on Islip’s neighborhoods are not subject to direct attack and the Town’s use of its zoning powers was the most appropriate means to address its substantive problems. Manifestly, the zoning regulations are less restrictive than banning adult uses altogether, and more compatible with free speech values than a licensing
Arguments can be advanced that different techniques should be used to address the problem, as Judge Titone does in his dissent, but that is not to say that they are constitutionally required. The members of the judiciary are hardly authorities on zoning and planning competent to frame broadly based provisions of an ordinance sufficient to meet the needs of the community and protect it from the harms caused by adult uses. To suggest alternative provisions amounts to nothing more than a disagreement with the Town over how much corrective action is wise and how best it may be achieved. The ordinance adopted is an appropriate method for addressing existing problems; it is not overinclusive and it does not unduly restrict adult uses to limited or unsuitable areas of the Town. Accordingly, the ordinance, as approved by the Appellate Division, is "no broader than needed” for the intended purpose (People ex rel. Arcara v Cloud Books, supra, at 558; see generally, Day, Incidental Regulation of Free Speech, 42 Miami L Rev 491, 528-529) and does not violate the State Constitution.
IV
Finally, respondents challenge provisions of the ordinance which require the termination of nonconforming adult uses. Those provisions authorize amortization of adult uses over a period of llA to 5A years, measured from the 1980 effective date of the ordinance. The particular period of amortization varies depending on the amount of the capital investment in the use. Respondents challenge the Town’s amortization provision as facially unconstitutional because it applies to preexisting uses (they note that the zoning prohibitions in Renton and Young were prospective only) and because they claim the ordinance is content-based regulation.
The general rule against interpreting statutes or ordinances retrospectively, especially where vested rights are involved, applies to zoning ordinances. The intractable problem of elimi
Respondents have failed to overcome the presumption. Indeed, they have continued to operate well past the maximum five-year period and they have presented no evidence of economic loss which would establish unreasonableness. Conversely, the Town has established the damage caused to its neighborhoods by adult uses and the substantial investment it has made, particularly in the Village of Bay Shore, to overcome the blight caused in part by them.
Respondents also claim that amortization applied to uses enjoying constitutional free speech protection amounts to content-based regulation and, therefore, legislation regulating them must be prospective or "grandfather-in” existing uses. Since the ordinance is content-neutral under both the Federal and State Constitutions, the amortization provisions rest upon the same legal foundation as such provisions generally and, on the facts presented here, are valid (see, Hart Book Stores v Edmisten, 612 F2d 821, supra [six-month period plus discretionary extensions]; see, Dumas v City of Dallas, 648 F Supp 1061 [three-year amortization period]; Cook County v Renaissance Arcade & Bookstore, 122 Ill 2d 123, 522 NE2d 73, supra [six-month period with extensions]; Northend Cinema v City of Seattle, 90 Wash 2d 709, 585 P2d 1153, supra [90-day period]).
V
Finally, we agree with the Appellate Division that the ordinance is neither vague nor subject to attack for over-
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Appendix
The ordinance enacted by the Islip Town Board, in its entirety, provides as follows:
"§ 68-341.1. Adult uses. [Added 9-23-80]
"Adult uses shall be allowable in an Industrial 1 District only as a special exception by the Board of Appeals after public hearing.
"A. Purposes and considerations.
"(1) In the execution of this ordinance it is recognized that there are some uses which, due to their very nature, have serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods or land uses.
"(2) It is further declared that the location of these uses in regard to areas where our youth may regularly assemble and the general atmosphere encompassing their operation is of great concern to the Town of Islip.
"(3) These special regulations are itemized in this section to accomplish the primary purposes of preventing a concentration of these uses in any one area and restricting their accessibility to minors.
"B. Definitions. As used in this ordinance, the following terms shall have the meanings indicated:
"adult bookstore — An establishment having as a substantial or significant portion of its stock-in-trade books, magazines, other periodicals, films, slides and video tapes and which establishment is customarily not open to the public generally but excludes any minor by reason of age.
"adult drive-in theater — A drive-in theater that customarily presents motion pictures that are not open to the public generally but excludes any minor by reason of age.
"adult entertainment cabaret — A public or private establishment which presents topless dancers, strippers, male or
"adult motel — A motel which is not open to the public generally but excludes minors by reason of age, or which makes available to its patrons in their rooms films, slide shows or videotapes, which if presented in a public movie theater would not be open to the public generally but would exclude any minor by reason of age.
"adult theater — A theater that customarily presents motion pictures, films, videotapes or slide shows, that are not open to the public generally but exclude any minor by reason of age.
"massage establishment — Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath or duly licensed physical therapist or barbershops or beauty salons in which massages are administered only to the scalp, face, neck or shoulders. This definition also shall exclude health clubs which have facilities for physical exercise, such as tennis courts, racquetball courts or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.
"peep shows — A theater which presents material in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged and which is not open to the public generally but excludes any minor by reason of age.
"C. The adult uses as defined in Subsection B above are to be restricted as to location in the following manner in addition to any other requirements of this Code.
"(1) Any of the above uses shall not be located within a five-hundred-foot radius of any area zoned for residential use.
"(2) Any of the above uses shall not be located within a one-half-mile radius of another such use.
"(3) Any of the above uses shall not be located within a five-hundred-foot radius of any school, church or other place of religious worship, park, playground or playing field.
"D. The restrictions enumerated in Subsection C above may
"(1) That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this ordinance will be observed;
"(2) That the establishment of an additional use of this type in the area will not be contrary to any program of neighborhood conservation or improvement, either residential or nonresidential; and
"(3) That fifty-one percent (51%) or more of the property owners within the restricted area as defined in Subsection C(l) of this section have signed a petition stating that they have no objection to the establishment of one of the uses defined above.
"E. No more than one (1) of the adult uses as defined above shall be located on any lot.
"F. By amortization, the right to maintain a legal nonconforming adult use shall terminate in accordance with the following schedule:
"Amount of Capital Investment” as of the Effective Date of this Ordinance Date Before Which Use Shall Terminate
0 to 5,000 January 1,1982
5.001 to 8,000 January 1, 1983
8.001 to 15,000 January 1, 1984
15.001 to 22,000 January 1, 1985
22.001 or more January 1, 1986
"note: The term 'capital investment’, as used above, is defined to mean the initial outlay by the owner or operator of the use to establish the business as of the date of the enactment of the ordinance, exclusive of the fair market value of the structure in which the use is located.”
. The pertinent provisions of the ordinance are annexed as an Appendix.
. When applying the predominant purpose requirement of Renton, courts do not invalidate a municipal zoning ordinance simply because one or more legislators sought to suppress protected expression. While Renton requires an examination of a municipality’s motive in enacting the ordinance before examining whether the ordinance is a valid time, place and manner restriction, it is the motive of the Legislature, not individual legislators, that is controlling (see, Walnut Props. v City of Whittier, 808 F2d 1331, 1335-1336). Moreover, even when evaluating the motive of the Legislature, there is a constitutionally significant distinction between an improper motivating factor and an unconstitutional predominant purpose (id.).
. Although the dissent does not accept that the predominant purpose of the ordinance was to eradicate the secondary effects of adult businesses (see, dissenting opn, at 573), evidently respondents do. They did not seek a trial to establish a contrary motive and they have included in their papers a copy of the minutes of the Town Board meeting at which the ordinance was enacted which establish that the Town’s purpose was to eradicate secondary effects.
. In fact, bars have been regulated since 1976, although in a different manner, and no new bars have moved into the downtown area since then.
. Article I, § 8 provides in pertinent part: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
. The dissent contends that the Town has not suffered from adult uses because land values in downtown Bay Shore have increased since the ordinance was enacted. Although the parties stipulated, for the purpose of this litigation, that real estate values have generally increased in the vicinity of respondents’ bookstore since the ordinance was enacted, petitioner has not agreed, and there is nothing in the record to establish, that the presence of respondents’ stores or of adult uses generally was responsible in any way for this economic improvement. To the contrary, petitioner’s study documents the harm caused by the adult uses and the increase in land values is easily traced to other factors. Disregarding the obvious effects of inflation on land values in Long Island in the nine years since the ordinance was adopted the Town has invested over seven million dollars to develop and improve downtown Bay Shore. Moreover, the zoning change in 1980 has enabled new businesses to invest in the area with the assurance that no new adult uses will be permitted and that existing uses will, in time, be terminated. Indeed, the adult theater formerly located next to the bookstore moved after the ordinance was enacted.
. The Supreme Court, in explaining the "least restrictive means” test has stated that the incidental burden on speech is no greater than essential, and therefore permissible, so long as the regulation "promotes a substantial government interest that would be achieved less effectively absent the regulation” (see, United States v Albertini, 472 US 675, 689). Manifestly, petitioner’s ordinance satisfies that test.
Dissenting Opinion
(dissenting). Only two years ago, in People ex rel. Arcara v Cloud Books (68 NY2d 553, 557 [Arcara II]), this court observed "New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community”. Consequently, we held in the context of a public nuisance statute affecting an "adult” bookstore that the State Constitution is more protective of expression than the
I
As a threshold matter, it is imperative to point out what this case is not. This case does not involve obscene material (see, Miller v California, 413 US 15), commercial speech (see, Central Hudson Gas & Elec. v Public Serv. Commn., 447 US 557), fighting words (see, Chaplinsky v New Hampshire, 315 US 568), libel (see, Gertz v Robert Welch, Inc., 418 US 323), child pornography (see, New York v Ferber, 458 US 747), incitement to imminent lawless action (see, Brandenburg v Ohio, 395 US 444), or privacy concerns implicated when there exists a "captive audience” (see, Lehman v City of Shaker Hgts., 418 US 298; Kovacs v Cooper, 336 US 77). "What this case does involve is the constitutional permissibility of selective interference with protected speech whose content is thought to produce distasteful effects” (Young v American Mini Theatres, 427 US 50, 85 [Stewart, J., dissenting]). Thus, we are dealing solely with nonobscene, adult-oriented material shown only to willing adults on private property as a form of entertainment. Such material is clearly entitled to full First Amendment protection (see, Schad v Mount Ephraim, 452 US 61, 65; Joseph Burstyn, Inc. v Wilson, 343 US 495, 502-503).
In addition, although zoning ordinances usually enjoy a presumption of constitutionality (see, Asian Ams. for Equality v Koch, 72 NY2d 121, 131; McMinn v Town of Oyster Bay, 66
The central question presented by this appeal is whether the challenged zoning ordinance is an attempt to regulate bookstores by their content, which would be subject to a traditional strict scrutiny analysis (see, Police Dept. v Mosley, 408 US 92, 95, 98-99), or is instead a "content-neutral” rule directed only toward the unwanted "secondary effects” of certain kinds of business establishments in the community. This initial determination depends on whether the recently revised Federal concept of content-neutral legislation, as outlined in Renton v Playtime Theatres (475 US 41, supra), is also controlling under the State freedom of expression guarantee. I believe it is not.
II
The majority’s characterization of Islip’s ordinance as content-neutral (majority opn, at 561) is flawed because "time, place, and manner regulations must be 'applicable to all speech irrespective of content’ ” (Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 536, citing Erznoznik v City of Jacksonville, 422 US 205, 209; see, Pacific Gas & Elec. Co. v Public Utils. Commn., 475 US 1, 20). In light of the language of the challenged ordinance, it cannot be denied that Islip has selectively imposed limitations on the placement of certain business establishments based exclusively on the content of the material viewed on the premises. Although the ordinance
Under traditional analysis, a content-based regulation of protected speech, may be sustained "only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest” (Consolidated Edison Co. v Public Serv. Commn., supra, at 540; see, Pacific Gas & Elec. Co. v Public Utils. Commn., supra, at 19). Indeed, this court has stated, "government regulation designed to suppress traditional communicative activity because of its content or potential impact is subject to the most rigorous scrutiny. Absent some compelling justification, such as a likelihood that speech will incite 'imminent lawless action’, content-oriented restrictions may not stand” (Matter of Consolidated Edison Co. v Public Serv. Commn., 47 NY2d 94, citing Brandenburg v Ohio, 395 US 444, 447, supra [emphasis added], revd on other grounds 447 US 530).
While there can be no doubt that a municipality has an interest in "the stability and revitalization of the neighborhoods” (majority opn, at 549), this interest cannot be considered "compelling” without at least some showing that the form of expression to be regulated has an actual and specific deleterious effect on the community. Here, there was no such showing.
To support its view that the Islip ordinance is constitutionally unobjectionable, the majority relies heavily on the written report prepared by the Town prior to enactment of its adult-use ordinance. The majority states that the report "demonstrated, by analysis of each adult entertainment business,
"This adult book store is adjacent to the Regent Theatre, an adult cinema. The close proximity of these two restricted businesses creates a void in the commercial center of Main Street.
"It also creates an area which certain shoppers will avoid due to their preference not to associate with these businesses. ” (Emphasis supplied.)
As this analysis makes clear, the Town residents’ distaste for the message conveyed in appellants’ establishment lies even at the root of the Town’s stated business concerns. However, the residents’ "preference not to associate with” appellants’ bookstore, is not sufficient to justify the content-based ordinance, since they "could effectively avoid further bombardment of their sensibilities simply by averting their eyes” (Cohen v California, 403 US 15, 21). Moreover, despite the report’s assertions that appellants’ store occupies a "dead zone”, the Town has stipulated that "during the period 1978 to present, real property values have increased in the immediate vicinity of respondent’s location and * * * vacancy rates for commercial premises have decreased over the same period in the same area.” In addition, there is absolutely no proof whatsoever of increased criminal activity within or around appellants’ bookstore. Plainly, the Town has failed to prove that appellants’ bookstore has " 'delayed the upsurge’ of downtown Bay Shore.” (Majority opn, at 534.)
Ill
In the face of Islip’s unproven "compelling” need to regulate adult-uses, the majority nonetheless upholds the ordinance by purportedly applying the test we applied in People ex rel. Arcara v Cloud Books (supra) (majority opn, at 558), a case which concerned a content-neutral nuisance statute. The majority eschews traditional content-based analysis in favor of content-neutral analysis because the ordinance "was not a purposeful attempt to regulate speech and its effect on expression is only incidental.” (Majority opn, at 557 [emphasis added].)* *
In Renton, the Supreme Court held that a statute may be characterized as content-neutral when its "predominant purpose” is to effectuate a goal unrelated to restricting expression. Critically, this decision adds a completely new twist to First Amendment jurisprudence because it allows an otherwise content-based regulation to be recast as content-neutral so long as the stated motivation for the regulation is something other than the suppression of speech. The result is simple. Content-based regulations which would normally be subject to strict scrutiny and a compelling need standard become subject to the much lower showing of substantial need. And, regulations which would be unconstitutional if judged under the traditional compelling need standard pass constitutional muster under Renton whenever the ordinance is justified by reliance on secondary effects — whatever that means. Taken to its logical extreme this analysis could adversely affect our free speech jurisprudence in all areas, including pure political speech (Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 115 [1987]; see, Boos v Barry, 485 US 312, —, 108 S Ct 1157, 1163-1164 [Renton discussed in context of statute restricting picketing in front of foreign embassies]; but see, Tribe, American Constitutional Law § 12-3, at 799, n 17 [2d ed] ["The Renton view will likely prove to be an aberration limited to the context of sexually explicit materials.”]).
In an important sense, the "predominant purpose” test represents a mere linguistic device to circumvent the traditional rule that content-based regulations be supported by an actual compelling governmental need (see, Consolidated Edison Co. v Public Serv. Commn., 447 US, supra, at 540; Pacific Gas & Elec. Co. v Public Utils. Commn., 475 US, supra, at 19).
First, inquiries into legislative motives or purposes are hazardous and inexact (see, United States v O’Brien, 391 US 367, 380). It is unlikely that a municipality would explicitly acknowledge a motive to restrict a particular message, and it is all to easy for local legislatures to justify restrictions by verbalizing some legitimate governmental interest in support (Stone, op. cit., at 56). Additionally, there exists the possibility that, in enacting legislation aimed ostensibly at some other goal, a local legislature will, consciously or unconsciously, be influenced by its own view of the restricted speech (id.). It is for precisely this reason that any regulation whose application depends on content must be judged as a content-based regulation regardless of the underlying motive. Indeed, prior to Renton all content-based regulations were simply presumed to be founded upon improper motives and judged accordingly.
My second concern is that the "predominant purpose” test encourages litigants to defend politically directed content-based regulations by concocting potential secondary effects of certain speech such as congestion, visual clutter, security, or deterioration of property values (see, Boos v Barry, 485 US 312, —, 108 S Ct, supra, at 1171 [Brennan, J., concurring in part]). As Justice Brennan recently stated, "[n]o doubt a plausible argument could be made that the political gather
Indeed, Islip’s primary rationale — fostering community renewal by eliminating uses that are distasteful to shoppers and discourage their patronage — could just as easily be applied to justify a regulation prohibiting certain unpopular minority political or religious groups, such as gay rights activists or Shi’ite Muslims, from locating their offices in a downtown shopping district. And, under the majority’s approach, such regulations would not be subject to the "compelling need” standard ordinarily applied in content-based challenges as long as the restriction was "minimal” and the prohibited uses were permitted in other locales. Thus, reliance on secondary effects can become a pretext for suppressing unfavorable expression (see, Young v American Mini Theatres, supra, at 84 [Powell, J., concurring]).
This case is the perfect example of the failings of the "predominant purpose” test. The Town of Islip’s report on the secondary effects of adult uses on surrounding areas has proven to be incorrect, at least insofar as it applies to appellants’ bookstore. Property values have increased, and commercial vacancies have decreased. There exists no actual proof of secondary effects. Plainly, public distaste for speech has never, without more, provided sufficient justification to suppress protected speech (see, Boos v Barry, 485 US 312, —, 108 S Ct, supra, at 1171 [Brennan, J., concurring in part]).
Further, despite its stated rationale, the Town’s actual motive is suspect here. If Islip were truly concerned only with the secondary effects of neighborhood deterioration, it would have attempted to regulate all kinds of uses that create such secondary effects, including pawnshops, and other potentially undesirable retail stores such as secondhand, and gun stores (see, Islip Town Code § 68-271 [D]; § 68-286 [H]; § 68-301 [D] [zoning ordinances affecting business districts]). Because Islip has failed to "demonstrate a comprehensive coordinated effort” to eliminate all uses which create unwanted secondary effects from its business districts, its zoning ordinance is plainly underinclusive and represents a disguised effort to prohibit what it considers undesirable expression (see, Metromedia, Inc. v San Diego, 453 US 490, 531 [Brennan, J., concurring]).
IV
Even assuming that Islip’s content-based ordinance can somehow be recast as a content-neutral zoning ordinance of general application, the ordinance would still violate our State Constitution.
On appeal, the Supreme Court reversed, holding that the defendant’s First Amendment rights had not been implicated because the nuisance statute was aimed at noncommunicative activity and any impact on the defendant’s speech was only incidental (see, Arcara v Cloud Books, 478 US 697, 702-705). On remand, in Arcara II (68 NY2d 553, supra) we held that regardless of whether a regulation is aimed at speech or at noncommunicative activity, our State Constitution requires that the regulation satisfy a "least restrictive means” standard if it affects expression. Indeed, we stated: "The crucial factor in determining whether State action affects freedom of expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who is aimed at but who is hit” (People ex rel. Arcara v Cloud Books, supra, at 558 [emphasis added]). Hence, any content-neutral regulation which has the affect of "hitting” speech must be "no broader than needed to achieve its purpose” (id., at 558), a test which logically requires use of the least restrictive means (Tribe, Constitutional Law § 12-7, at 829, n 23 [2d ed]; Note, Padlock Orders and Nuisance Laws: The First Amendment in Arcara v Cloud Books, 51 Alb L Rev 1007, 1016). In this State, the purpose of an ordinance is constitutionally irrelevant for it is only the impact that matters. Hence, we have already rejected any type of "predominant purpose” test. In addition, we noted that the "least restrictive means” includes actual proof that other less intrusive methods had been tried and proved unavailing (68 NY2d, at 559). For this reason, the majority’s reliance on United States v Albertini (472 US 675), to the extent that case may be perceived as stating a different standard, is unpersuasive (majority opn, at 559, n 7).
Although the Town of Islip’s zoning ordinance was aimed at secondary effects, appellants’ speech has been hit. Thus, Arcara imposes a burden on Islip to prove that it has chosen the least restrictive means to accomplish its purpose. This in-
The Town of Islip has completely banned adult-uses from all business districts (subject to an amortization provision), and has allowed them to operate only in the industrial districts (subject to dispersal requirements). This is not the least restrictive means by which the Town could have attempted to prevent the unwanted secondary effects flowing from adult businesses. First, the Town could have given nonconforming uses the protection of a grandfather clause.
The severity of the impact created by Islip’s ordinance — an issue the majority has ignored — is also problematic. In Arcara, the injunction imposed under the nuisance statute would have
In response to these constitutional problems, a pervading theme throughout the majority opinion is that the ordinance does not impose any limitation on the "ability of the creators or sellers [of adult-oriented material] to distribute it” and that "the effectiveness of the message contained in adult materials, unlike the effectiveness of the message contained in political speech * * * is not at all dependent on the place where made.” (Majority opn, at 554, 558.) Additionally, the majority finds solace in the fact that adult uses may exist, as of right, in several areas of the Town and that "regular” bookstores may "sell adult materials in segregated areas of their stores without being subject to the provisions of the ordinance.” (Majority opn, at 558.) My response is threefold.
First, the ability of creators and sellers to distribute their products is completely dependent upon the existence and operation of bookstores and movie houses. Without an effective means of distribution, the message, for all intents and purposes, is silenced (see, Smith v California, 361 US 147, 150). Second, removing any form of speech from the heart of a downtown community and relegating it to an industrial district away from the populace, will undoubtedly effect the ability of the message to be communicated. Here, for instance, the message of adult material pertains to the loosening of puritanical ethics in favor of relaxed sexual mores in the society. The elimination of this message from "Main Street” is contrary to this message, and, thereby destroys its effectiveness.
Third, and finally, the fact that the ordinance does not completely ban adult material is of no consequence, and does not justify applying a less exacting level of scrutiny. Indeed, the Supreme Court has consistently rejected the suggestion that a content-based regulation may be justified by a showing that speakers have alternative means of expression (Consolidated Edison Co. v Public Serv. Commn., 447 US, supra, at 541, n 10; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 757, n 15; Southeastern Promotions v Conrad,
Thus, under our clear holding in Arcara, Islip’s ordinance has simply been painted with too broad a brush. Indeed, it is anomalous that we offered more protection against the content-neutral nuisance statute in Arcara than we have offered against Islip’s content-based zoning ordinance.
V
By concluding that Islip’s ordinance is violative of appellants’ guarantee of freedom of speech under our State Constitution, I do not belittle the valid concerns asserted by the Town of Islip. It may well be that such concerns, if proven real, would constitute the kind of compelling need necessary to justify a content-based regulation. Here, however, the close judicial scrutiny that the law requires is not satisfied. For "it is in those instances where protected speech grates most unpleasantly against the sensibilities that judicial vigilance must be at its height” (Young v American Mini Theatres, supra, at 87 [Stewart, J., dissenting]). My obvious preference for content-neutral regulations is based simply on the notion that "[c]ourts can take no better measure to assure that laws will be just than to require that laws be equal in operation” (Railway Express v New York, 336 US 106, 113 [Jackson, J., concurring]).
Accordingly, since I conclude that the Town of Islip’s zoning ordinance is content-based and is not justified by any compelling need, I dissent.
. NY Constitution, article I, §8 provides in pertinent part: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
. Contrary to the majority’s assertion, I do not claim that the presence of appellants’ store was responsible for the economic improvement which occurred in Bay Shore (majority opn, at 557, n 6). My reliance on the stipulated facts is simply to demonstrate that the perceived fear of financial devastation caused by a "skid-row” effect did not occur. I make no claim
In addition, neither the Town nor the majority, has sufficiently proven that any "past deterioration” that may have existed in Islip was directly attributable to appellants’ bookstore (majority opn, at 553). The Town’s mere "prediction that, unless remedied [by closing adult-uses], [such] deterioration would continue” (majority opn, at 553) is insufficient to create a compelling need. Content-based jurisprudence does not condone such preemptive strikes (see, Brandenburg v Ohio, 395 US 444, 447).
. The majority suggests that Islip’s ordinance does not "constitute censorship because it does not distinguish between the messages that various adult businesses convey.” (Majority opn, at 558.) This statement is based on the apparent distinction between subject matter and viewpoint restrictions which originate in Justice Stevens’ plurality opinion in Young v American Mini Theatres (427 US 50). In advancing his two-tier approach to
. The majority’s suggestion that the purpose of Islip’s ordinance is similar in principle to statutes forbidding the sale of child pornography because of the "harm to the juvenile participants rather than [the] harm to viewers of the pornography” (majority opn, at 557-558), ignores the fact that child pornography is excluded from the protections of the First Amendment (New York v Ferber, 458 US 747). Here, by contrast, in the absence of a judicial finding of obscenity, appellants’ speech is completely protected by the First Amendment. Thus, reliance on Ferber is misplaced.
. Professor Stone states: "If taken seriously, and extended to other contexts, the Court’s transmogrification in Renton of an expressly content-based restriction into one that is content-neutral threatens to undermine the very foundation of the content-based/content-neutral distinction. This would in turn erode the coherence and predictability of first amendment doctrine. One can only hope that this aspect of Renton is soon forgotten.” (Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 116-117 [1987]; see, Tribe, American Constitutional Law § 12-3, at 798, n 17 [2d ed] ["Carried to its logical conclusion, the doctrine could gravely erode first amendment protections.”].)
. It is for exactly this reason that I cannot simply accept that the predominant purpose of the ordinance is to eradicate the secondary effects of adult businesses and not to suppress speech because of its content (see, majority opn, at 553, n 3). In addition, the fact that appellants "did not seek a trial to establish a contrary motive” (majority opn, at 553, n 3) is of no legal consequence. I find it unnecessary to challenge, and prove, that legislators enacted an ordinance for the purpose of suppressing speech. Indeed, traditional content-based jurisprudence simply avoids this "proof’ problem by presuming improper motive.
. I also disagree with the majority’s oversimplification of content-neutral jurisprudence. The majority states that content-neutral restrictions "are valid if the governmental interest to be achieved outweighs the resulting interference with free expression.” (Majority opn, at 557.) I do agree that expression, whether oral or written, or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. However, such restrictions are "valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information” (Clark v Community for Creative Non-Violence, 468 US 288, 293; City Council v Taxpayers for Vincent, 466 US 789; United States v Grace, 461 US 171; Perry Educ. Assn., v Perry Local Educators’ Assn., 460 US 37, 45-46). By refusing to actually apply such standards, the majority’s analysis can lead to the "balancing” away of First Amendment protections.
. This test, normally applied to "symbolic speech”, states that: "[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Id., at 377.)
. In both Young and Renton prior nonconforming uses received the protection of a grandfather clause.
. In Young, for instance, adult-uses were dispersed throughout all commercial districts, not only the industrial districts.
. The majority’s suggestion that the "judiciary are hardly authorities on zoning and planning competent to frame broadly based provisions of an ordinance sufficient to meet the needs of the community” (majority opn, at 560) ignores the fact that the judiciary is well equipped and, indeed, required to closely scrutinize zoning ordinances which impact upon constitutional rights (see, Baer v Town of Brookhaven, 73 NY2d 942; McMinn v Town of Oyster Bay, 66 NY2d 544). Such a duty manifestly includes the power, and ability, to review a town’s corrective actions to determine whether such a zoning ordinance is constitutional. If the proper jurisprudential analysis includes an examination as to whether the least restrictive means were employed, it is our duty to closely scrutinize the ordinance to ensure that the legislature has chosen such means. If an equally effective and less burdensome alternative exists, that option must be chosen. This is not simply second-guessing the Town, as suggested by the majority.
Dissenting Opinion
(dissenting). In my view, People ex rel. Arcara v Cloud Books (68 NY2d 553) alone leads to reversal of the order below, without the need to embark on a content-based/ content-neutral analysis. I would therefore not reach the difficult question whether the rigorous test of strict scrutiny should apply even to ordinances regulating pornography (see generally, Sunstein, Pornography and the First Amendment, 1986 Duke LJ 589); that test in practical application is tantamount to per se invalidity (see, Renton v Playtime Theatres, 475 US 41, 46-47; Police Dept. v Mosley, 408 US 92, 95, 98-99).
Even assuming the Islip ordinance were content-neutral
The majority sidesteps this result only by trimming Arcara, even suggesting that courts have no business concerning themselves with the intrusiveness of a particular zoning method, notwithstanding that it impacts bookselling — a form of expression which is unquestionably "constitutionally protected activity.” (People ex rel. Arcara v Cloud Books, 68 NY2d, at 558.) While freedoms such as these have been previously accorded transcendent value by this court (see, e.g., People ex rel. Arcara v Cloud Books, supra, at 557; People v P. J. Video, 68 NY2d 296; Bellanca v State Liq. Auth., 54 NY2d 228, 235), self-styled "anti-Skid Row” ordinances are now largely removed from meaningful judicial scrutiny.
Chief Judge Wachtler and Judges Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Alexander concurs; Judge Kaye dissents and votes to reverse in another opinion.
Order affirmed, with costs.