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NORTH ST. BOOK SHOPPE v. VILLAGE OF ENDICOTT

March 27, 1984

NORTH STREET BOOK SHOPPE, INC., Plaintiff, v THE VILLAGE OF ENDICOTT, NEW YORK, MARION CORINO, Individually and as MAYOR of the Village of Endicott, New York, PAUL J. RIPIC, Individually and as Code Enforcement Officer of the Village of Endicott, New York, E. A. KUDGUS, Individually and as Superintendent of Public Works of the Village of Endicott, New York, and MARY JANE SEDLACK, Village Clerk of the Village of Endicott, New York, Jointly and Severally, Defendants.


The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

 The plaintiff North Street Book Shoppe, Inc., operator of an "adult bookstore" at 17 Washington Avenue in the Village of Endicott, New York, commenced this action for a judgment declaring sections 20-220 through 20-225 of the Zoning Code of the Village of Endicott to be invalid as repugnant to the first and fourteenth amendments; for injunctive relief; for damages; and for costs. The jurisdiction of this court was properly invoked pursuant to 28 U.S.C. §§ 1343(3)(civil rights) and 2201 (declaratory judgments). Presently before the court is plaintiff's motion for a preliminary injunction prohibiting enforcement of the challenged ordinance pending a final determination herein. A hearing was conducted on December 2, 1983, and post-hearing briefs were submitted to the court. *fn1" This Memorandum-Decision contains the court's findings of fact and conclusions of law pertaining to the instant motion.

 I.

 In June of 1982, residents of Endicott learned that an adult bookstore would open at 17 Washington Avenue, a prime commercial location in the Village of Endicott. On June 14, prior to the opening of the bookstore, several residents voiced their disapproval and opposition to the bookstore at a regular meeting of the Village Board of Trustees, and urged the Board to take action. The objections expressed stemmed both from moral grounds and from concerns that the bookstore would cause a deterioration of the character of the neighborhood and a decline in property values.

 The adult bookstore, "Mr. Bill's", opened sometime between June 14 and the Board's next public hearing on the matter on June 28. At that hearing, residents again expressed their fervent opposition to the store, and demanded action. The Board then read a proposed local law which would amend the Zoning Code of the Village of Endicott by the addition of provisions defining and restricting the location of "adult entertainment" businesses in the Village.

 A public hearing on the proposed local law was conducted on July 26, 1982. At the conclusion of the hearing the measure, Local Law # 17, was adopted by a unanimous vote of the Board. It appears in the Village Code in Chapter 20 - "Zoning", Article IV, Division 5, sections 20-220 through 20-224.

 The operative section of the ordinance, § 20-222, provides that:

 No person shall cause or permit the establishment of any of the following "adult entertainment" business, as defined in Section 20-221 hereof, within 500 feet of any building containing residential dwelling or rooming units, or within 1,000 feet of any church, school, park, playground, amusement arcade or existing "adult entertainment" businesses: adult bookstore, adult mini motion picture theatre.

 The "establishment" of an "adult entertainment" business shall include the opening of such business as a new business, the relocation of such business, or the conversion of an existing business location to any of the uses described in Section 20-221 B. hereof.

 The ordinance defines the relevant terms, § 20-221, and the method of measuring distances, § 20-223. It also contains a purpose clause, § 20-220, and a severability clause, § 20-224.

 At the time of the enactment of the ordinance, "Mr. Bill's" was the only adult entertainment business operating in Endicott. Since the ordinance only applied to the opening, relocation, or conversion of an adult entertainment business, it placed no immediate restraint upon the operation of that bookstore.

 On October 25, 1982, the Village of Endicott enacted an amendment to the ordinance that provides:

 Any non-conforming use of a building or structure for any adult entertainment business lawfully existing at the time of this amendment may be continued until October 31, 1983, at which time such use shall be discontinued. . . .

 This one year amortization provision is codified as § 20-225 of the Zoning Law.

 According to the complaint, in December of 1982 the owner of Mr. Bill's sold its business and lease to the plaintiff North Street Booke Shoppe, Inc., a corporation existing under the laws of New York. Plaintiff had previously operated an adult book store at 1506 North Street in Endicott from 1976 through July of 1982, at which time it lost its lease. From December of 1982 to the present, the North Street Book Shoppe at 17 Washington Avenue has been the only adult bookstore in the Village of Endicott.

 On July 18, 1983, defendant E. A. Kudgus, Endicott Superintendant of Public Works, issued to plaintiff a sign permit. Although such a permit would ordinarily expire on June 1 of the following year, this one was scheduled to expire October 31, 1983, the date the amortization period of Zoning Law § 20-225 ended.

 On November 1, 1983, defendant Paul J. Ripic, Endicott Code Enforcement Officer, made an inspection of the premises at 17 Washington Avenue and determined from the materials sold and exhibited there and from the store's location that the plaintiff was operating an "adult entertainment" business in violation of Zoning Law §§ 20-222. Ripic did not look for, or find violations of any other ordinances by the bookstore. On November 3, 1983, plaintiff received notice that they must cease the operation of an "adult entertainment business" at 17 Washington Avenue within seven days of receipt, i.e., by November 10th. The penalty for noncompliance was a fine of $200 per day. Plaintiff, in response, ceased doing business on November 9, 1983, and remained closed until this action was commenced and a temporary restraining order issued on November 23, 1983.That Order, which temporarily enjoined enforcement of the challenged ordinance, was extended by consent of counsel until such time as the court rules upon plaintiff's motion for a preliminary injunction.

 As noted previously, § 20-222 of the Ordinance prohibits adult entertainment businesses from being located within 500 feet of any residence or within 1,000 feet of any church, school, park, playground, amusement arcade, or existing adult entertainment businesses. It is undisputed that under the Ordinance, plaintiff may no longer operate its adult entertainment business at 17 Washington Avenue, or anywhere else in the Central Business District of Endicott.

 Defendants are able to identify two areas in Endicott -- a village of 3.1 square miles -- where plaintiff could relocate without violating the challenged Ordinance or other zoning ordinances. Both areas are zoned for "industrial" use.

 The first area, which extends some 800 feet, is presently occuped by a liquor store, a grocery store, parking lots, warehouses, and a construction site. *fn2" Evidently, there is no building now available for use as a bookstore. There is unoccupied space where a bookstore could be constructed, but it was not established whether any of that space is available for sale or lease.

 The second area extends for approximately 1,200 feet on the north side, and 800-1,000 feet on the south side of a street that is well travelled by commuters. *fn3" The various owners of the properties in the area were identified at the hearing, and there was evidence of two industrial structures presently for sale. ...


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