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FORTY-SECOND ST. CO. v. KOCH

July 22, 1985

THE FORTY-SECOND STREET COMPANY and WORLD'S BUSIEST CORNER CORP., Plaintiffs, against EDWARD I. KOCH, individually and as Mayor of the City of New York; BOARD OF ESTIMATE of the City of New York; DEPARTMENT OF CITY PLANNING of the City of New York; HERBERT STURZ, individually and as Director of the Department of City Planning; PUBLIC DEVELOPMENT CORPORATION of the City of New York; CITY OF NEW YORK; NEW YORK STATE URBAN DEVELOPMENT CORPORATION; TIMES SQUARE REDEVELOPMENT CORPORATION; WILLIAM J. STERN, individually and as Chairman, President, and Chief Executive Officer of the New York State Urban Development Corporation and as Chairman of Times Square Redevelopment Corporation; CAMBRIDGE INVESTMENT GROUP, LTD.; MICHAEL J. LAZAR, JUJAMCYN COMPANY, INC.; PARK TOWER REALTY CORP.; NEW YORK TRADE MART; and TISHMAN SPEYER PROPERTIES, indivdually and as General Partner of New York Trade Mart, Defendants


The opinion of the court was delivered by: MOTLEY

CONSTANCE BAKER MOTLEY, Chief Judge.

Plaintiffs, two companies affiliated with the Brandt Organization, hold long-term leases on eight motion picture theaters on Forty-Second Street which are slated to be condemned and converted to retail and live theater use as part of the Forty-Second Street Development Project. The theaters exhibit primarily low-budget martial arts and horror films and some sexually explicit films to a largely low-income and minority audience. Plaintiffs seeks to enjoin the Project, which will also bring office towers, a hotel, and a merchandise mart to the Times Square area, only insofar as it calls for the condemnation and changed use of these theaters. Plaintiffs allege that defendants, including various state officials and agencies and several private developers involved in the Project, are motivated by hostility towards the content of plaintiffs' movies and the racial composition of plaintiffs' audience, and that the plan to condemn the theaters therefore violates the First Amendment and Equal Protection rights of both plaintiff theater operators and their minority customers.

 This court has already confronted, in two previous cases, many of the issues implicated by the City's ambitious plans for Times Square. In Rosenthal & Rosenthal v. New York State Urban Dev. Corp., 605 F. Supp. 612 (S.D.N.Y. 1985), the court rejected a claim that the proposed condemnation of a viable office building on Forty-First Street as part of the Project was not rationally related to a legitimate government purpose. In G. & A. Books, Inc. v. Stern, 604 F. Supp. 898 (S.D.N.Y. 1985), the court held that the condemnation of several adult bookstores along with hundreds of other businesses to make way for the four large office towers planned for the Project did not violate the First Amendment.

 Arguing that the court's disposition of G. & A. Books controls the present case, defendants seek summary judgment on plaintiffs' First Amendment claim, and argue as well for dismissal of plaintiffs' claim of racial discrimination. *fn1" Defendants also urge, as they did in the earlier dismissed cases, that this court should exercise its discretion to abstain from deciding the present matter. AFter careful consideration of the voluminous submissions in this case, the court declines to abstain, but concludes that there exist no disputed issues of material fact with respect to plaintiffs' race and speech claims. Therefore, for the reasons set forth below, defendants' motion for summary judgment is granted.

 FACTS:

 At the outset, the court wishes to make clear what is not in dispute in this case. The court has already made substantial and detailed findings with respect to the plan to redevelop Times Square.

 
The Forty-Second Street Development Project is a large-scale redevelopment scheme jointly undertaken by the City and the State which would dramatically alter the physical, social, and cultural environment of the Times Square area. The Project emerged after years of false starts and failed initiatives by public officials seeking to bring renewal to Forty-Second Street. The present plan is the product of a lengthy, statutorily mandated land use review procedure which included extensive public hearing and resulted in hundreds of pages of detailedfindings on the Project's impact. Even a brief, partial summary of these proceedings and findings is sufficient for this court to conclude that substantial and important public purposes underlie the Project.

 G. & A. Books, 604 F. Supp. at 902.

 Although the court's findings of fact in G. & A. Books cannot have collateral estoppel effect on the different plaintiffs in this case, these plaintiffs do not dispute the essential legitimacy of the Project or its goals. Therefore, to the extent that the findings in G. & A. Books reflect undisputed matters of public record and are not challenged in factual disputes addressed herein, they are adopted here by reference in the interests of brevity.

 In short, the Project seeks to eradicate what is characterized without dispute as blight in the Times Square area including violent crime, drug dealing, prostitution, decaying and underutilized buildings, and depressed property values. The Project takes a drastic approach which calls for the wholesale clearing of several hundred businesses to make way for four large office towers and other development. The goal is to transform the area by radically altering its physical and social makeup with upscale offices, retail businesses, and cultural enterprises. See G. & A. Books, 604 F. Supp. at 902-05.

 The wisdom of this plan is not, all parties agree, a matter for this court to evaluate. Moreover, the plan's overall legitimacy and the legitimacy of its underlying goals are not challenged by any part. Plaintiffs do not allege that the entire Project is motivated either by racist or anti-free speech goals. Therefore, the only area of potential dispute in this case is the constitutionality of one part of the Project: the plan to condemn plaintiffs' theaters and convert them to live theater and other non-movie uses.

 Under the Project plan, plaintiffs' theaters on Forty-Second Street are the only buildings to be condemned but not destroyed. Instead, they will be renovated, altered, and turned over to other operators for uses consistent with the Project. The Lyric, Apollo, and Selwyn theaters will be converted to live theater use with defendant Jujamcyn Company as operator. The Time Square and Empire theaters will be converted to retail and restaurant use. The Liberty and Victory theaters will be used for non-profit or "institutional" theater. The Rialto theater and the attached office building will be demolished. See Final Environmental Impact Statement (FEIS) at S-12, 1-12 and Table 1-1.

 Several purposes are stated to underlie this aspect of the Project: To preserve the historically and architecturally significant theaters, to restore the theaters to their historic use as live theaters, to encourage live theater in the Broadway area, and to provide new retail and institutional facilities to support the area's other new developments such as the office towers and Trade Mart. See FEIS at S-3, S-12-13; Affidavit of Defendant William J. Stern at 2-4.

 Plaintiffs maintain that their theaters in fact are being singled out for condemnation because defendants object to the content of the movies they exhibit, which include low-budget martial arts and horror movies along with some mainstream Hollywood fare and sexually explicit films. In addition, plaintiffs allege that the condmenation is motivated in party by racial bias in that the Project planners seek to remove from the area the thousands of blacks and Hispanics who comprise three-quarters of plaintiffs' daily audience. Plaintiffs allege that it will be impossible for the theaters to relocate and that the Project therefore will cut off access to their type of low-cost entertainment, which is offered in few other locations in New York.

 In support of these First Amendment and Equal Protection claims and in an attempt to defeat the instant motion for summary judgment, plaintiffs have submitted substantial material which challenges many of the factual assumptions alleged to underlie the policy decisions that produced the present Project plan. This material includes affidavits from prominent individuals in the fields of social psychology, sociology, architecture, and entertainment. While the court might be inclined to agree with much of what plaintiffs assert as a matter of social policy, most of plaintiffs' allegations go to the wisdom rather than the legitimacy of those aspects of the Project affecting plaintiffs' theaters. Therefore, although plaintiffs raise many factual questions which may be in dispute, the court concludes that, by and large, these questions of fact are not material to the motion for summary judgment. Plaintiffs' allegations will for this reason be summarized very briefly herein.

 Plaintiffs, through the affidavit of architect Michael William Toto, allege that their theaters are not blighted, are well-maintained, and are suitable for continued use as movie theaters, that the theaters are either not architecturally significant or are not capable of having their significant features restored, and that the Project plan will not "restore" the theaters architecturally but will simply alter them to allow new uses. The willingness of Project planners to gut some of the theaters for retail use is argued to belie their intention to preserve outstanding architecture. See generally Affidavit of Michael William Toto. To the extent that defendants do seek to maintain significant architectural features, such as the noteworthy facades of many of the theaters, plaintiffs insist that they will cooperate with the City and that condemning the theaters is therefore unnecessary. In any event, urge plaintiffs, landmarking or condemning just the facades of certain theaters would adequately serve the state interest in historic preservation.

 Plaintiffs further allege that their theaters historically were not devoted primarily to "legitimate" theater but rather have a varied history of use for burlesque, vaudeville, and movies, and a half-century commitment to low-cost movie entertainment. See Affidavit of Carl M. Levine at 7-9. If the condemnation is allowed, plaintiffs allege that low-income New Yorkers will be deprived of a significant entertainment center. See id. at 11-17. City hostility towards new movie theaters and prohibitive economics will prevent plaintiffs' relocation. Id. at 20-23. Moreover, plaintiffs allege that there exists a surfeit of legitimate Broadway theaters, that the Broadway economy has been depressed for several years, and that most of the converted theaters are likely to remain unrented, rendering the proposed conversion economic folly. See generally Affidavit of Arthur Cantor.

 Plaintiffs urge the foregoing in support of their allegation that the plan to condemn their theaters is not supported by significant historical, cultural, or architectural goals, but rather is motivated by hostility toward their films and their audience. Plaintiffs cite myriad negative comments by government officials about their theaters as further support for this conclusion. Plaintiffs allege that their theaters are linked in Project studies, without support, to blight in the Time Square area in that the theaters are falsely assumed to be deteriorating or to be the site of rampant crime. See, e.g., FEIS at S-7, 1-4, 1-6, 1-23, 2-99. Moreover, plaintiffs allege that the very stated goals of the Project reflect the planners' open hostility ...


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