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April 4, 1997


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiffs Wandyful Stadium, Inc. d/b/a/ Cafe Wandyful ("Cafe Wandyful"), and Wandalyn Williams (collectively the "plaintiffs") commenced this civil action against the defendants, the Town of Hempstead ("Town"), Hempstead Town Board ("Board"), and the Board of Zoning Appeals of the Town of Hempstead ("Zoning Board") (collectively the "defendants") seeking injunctive relief and equitable relief, disbursements, costs and fees brought under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution, the Constitution of the State of New York, and other state causes of action. In particular, the plaintiffs allege that the defendants have deprived them of the free exercise of their constitutionally protected rights through the promulgation, passage and enforcement of zoning and other ordinance, laws, rules and regulations.

 This matter was commenced by the serving and filing of a Complaint and Order To Show Cause for a temporary restraining order and preliminary injunction on February 7, 1997. During the conference on that date, the Court signed the Order To Show Cause but denied the plaintiffs' request for a temporary restraining order. The Court set a March 21, 1997 date for oral argument on the preliminary injunction motion. On consent of both parties, the Court adjourned the March 21, 1997 date to April 4, 1997.

 Currently before the Court is a motion brought on by an Order To Show Cause requesting the following relief:

(1) Pursuant to Fed.R.Civ.P. 65 enjoining the defendants, and all persons acting in concert with them, from
a) taking any action to enforce the Notice of Decision of the Board of Zoning Appeals dated October 30, 1996;
b) in any way limiting, interfering and/or restricting the operation of plaintiffs' business and use and occupancy of the premises known as 188 Hempstead Turnpike, West Hempstead, New York;
c) attempting to prevent dancing and music at said premises;
d) taking any adverse action against plaintiffs pending the outcome of this action, including the issuance of any further summons/violations and
2) Staying all other legal proceedings being conducted by the defendants against plaintiffs as same may exist in the Nassau County Supreme Court under Index # 95-33001, in the Nassau County District Court, Second District, Hempstead Part.


 The individual plaintiff Wandalyn Williams is the president and owner of plaintiff corporation Wandyful Stadium, Inc., which is a corporation organized and existing under the laws of the State of New York with its principal place of business at 188 Hempstead Turnpike, West Hempstead, New York.

 The defendant Hempstead Town Board is a body corporate and a political subdivision of the State of New York. It has the responsibility for policy making and administration of Town government.

 The defendant The Board of Zoning Appeals of the Town of Hempstead is a municipal subdivision of the Town. The entity is empowered to prescribe, adopt and amend suitable ordinances, variances, rules and regulations for zoning in the Town of Hempstead. The Zoning Board is also charged with hearing applications, deciding on applications, overseeing the implementation ordinances, variances, rules and regulations and serving as their guardians to assure compliance.

 The plaintiff corporation is a commercial tenant on a parcel of land situated on the northeast corner of Hempstead Turnpike and Mayfair Avenue, West Hempstead, Town of Hempstead, New York. The premises is developed with a one-story building and accessory parking, with the restaurant occupying a 7,000 foot portion of the building. The accessory parking area contains approximately 140 parking spaces.

 In 1994, the plaintiffs submitted completed building permit applications to the Town of Hempstead Building Department ("Building Department") requesting approval to convert the area of the building to a restaurant, to maintain parking in the required front-yard setback and for a variance in required off-street parking. According to the plaintiffs, the Building Department rejected the application because the request required the approval of the Zoning Board. Later in 1994, the plaintiff alleges that he sought approval from the Zoning Board. A public hearing was held on December 14, 1994 with respect to the plaintiffs' application. According to the defendants, at the hearing, the plaintiffs stated that the subject premises were to be used as a restaurant and not as a cabaret. The defendants claim that these statements were made by the plaintiffs in response to the concerns of the opponents to the application that the premises might be used as a cabaret due to the large size of the bar area shown on the submitted floor plans.

 By a decision dated February 1, 1995, the Zoning Board granted the plaintiffs' application for an off-street parking variance and permission to park in the front yard setback of the premises. Further the Zoning Board granted the plaintiffs' request to use the premises as a restaurant. According to the defendants, the decision of the Zoning Board dated February 1, 1995 was granted subject to several conditions, including that "there shall be no live music nor dancing on the subject premises." On April 7, 1995, the plaintiffs obtained the building permit which authorized conversion to a restaurant.

 On May 18, 1995, the defendants reopened the case and held a hearing for the purpose of imposing additional conditions. As a result of that hearing, the Zoning Board's approval of February 1, 1995 was modified by the imposition of additional conditions. The defendants assert that the plaintiffs and the local civic associations agreed upon the new conditions.

 According to the defendants, the Zoning Board received a letter dated September 8, 1995 from a civic association complaining of violations by the plaintiffs of the Zoning Board's conditions by permitting dancing on the premises. The defendants state that the letter noted that the plaintiffs provided dancing on opening night and that a July 13, 1995 Newsday ...

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