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March 9, 1999


The opinion of the court was delivered by: Seybert, District Judge.


Pending before the Court are cross-motions for summary judgment in Plaintiff's constitutional challenge to Defendant's zoning ordinance.


Plaintiff 801 Conklin Street, Ltd., a New York Corporation doing business as the "Crystal Cafe" (hereinafter "Plaintiff" or "Crystal"), commenced this action against the Town of Babylon (hereinafter "Defendant" or the "Town"), seeking a declaratory judgment declaring unconstitutional the Town's Adult Use Business Legislation (references to the Babylon Town Code are hereinafter referred to as the "Code"). In addition, Crystal asserts that preliminary and permanent injunctions enjoining the Town from enforcing the Code are required to protect its federal constitutional rights. Although the complaint alleged violations of both the United States and New York State constitutions, the cross-motions for summary judgment do not raise or discuss the state law claims.

Pending before the Court are Crystal's first amended motion for summary judgment and the Town's cross-motion for summary judgment. Crystal seeks: (1) summary judgment pursuant to Federal Rule 56(b) due to the constitutional infirmities of the applicable Code sections, and (2) an injunction preventing enforcement of the Code to the detriment of Crystal. The Town seeks: (1) an order granting summary judgment on all matters for which there exist no genuine issues of material fact, and (2) a denial of Crystal's motion for summary judgment on any matter for which there does exist an issue of fact.


The facts as set forth below, unless otherwise indicated, are not in dispute. Defendant, Town, by and through the Town Board of the Town of Babylon, is a Municipal Corporation and political subdivision of the State of New York, whose authority to enact and enforce zoning laws, regulations and ordinances is duly governed and limited by the State of New York. (Pl.'s "Statement of Material Facts" ¶¶ 1, 2, pursuant to Local Rule 56.1 (hereinafter "56.1").)

Plaintiff, Crystal, is a recognized legal entity with its principal place of business located in the Town of Babylon, Suffolk County, New York State. (Pl.'s 56.1 ¶ 1.) Crystal is a duly organized New York corporation operating a business that offers entertainment to the public in the form of recorded music and exotic dance performances. Crystal's business is within that class of land uses generally defined as an "adult entertainment cabaret," in Section 213-377 of the Code. (Pl.'s 56.1 ¶¶ 3, 7; Code § 213-377.) Section 213-377 defines all types of businesses that are treated as an "Adult Use" under the Code.

The expressive content of the dance performances, performed by independent professional artists and/or employees, includes an emphasis on sexual expression and the interest in human sexuality. The occasional exposure of various specified anatomical areas is an integral component of the expressive impact of the performance. (Pl.'s 56.1 ¶ 3.) Crystal's primary source of income was and is derived from public appeal, demand, and commerce in the expressive performances, for which the business receives remuneration directly from patrons and customers, as well as commerce in other ancillary hospitality services. (Pl.'s 56.1 ¶ 5.)

The parties agree that: (1) the performances offered by Crystal are not obscene as contemplated by contemporary standards and are protected activities under the First Amendment; (2) the performances are offered to the public for the specific purpose of presenting expressive matter of literary, artistic, political or scientific value; (3) the performances which take place at Crystal do not appeal to any prurient interest; and (4) as such, they are entitled to some level of First Amendment protection. (Pl.'s 56.1 ¶ 6.)

The parties disagree as to whether Crystal's operation preceded enactment of the applicable Code Section. Crystal claims that it provided the expressive dance performances described above for a significant period of time prior to the establishment or adoption of the Code, (Pl.'s 56.1 ¶ 8.), whereas the Town contends that Crystal incorporated and purchased the property and business subsequent to the adoption of the Code. (Def.'s 56.1 ¶ 1.)

On November 4, 1987, the Town advertised a public hearing ("Hearing") scheduled for, and held on November 17, 1987, at the Town House. Various individuals addressed the Town Board. (Def.'s 56.1 ¶¶ 9, 10.) Residents voiced concern over the impact that various Adult Use establishments could have on moral decency, the upbringing of children, and, to some degree, property values in the community. (Public Hearing of the Town Board, Town of Babylon, (hereinafter "Hearing"), at 3, 4, 7, 8 (filed as Exhibit B to Defendant's Notice of Cross-Motion For Summary Judgment, Opposition to Plaintiff's Motion for Summary Judgment, Objections to Plaintiff's Affidavit and Defendant's Memorandum of Law.)) Comments about similar zoning provisions enacted in the Town of Islip generally revolved around the fact that its constitutionality has been upheld in other courts. (Hearing at 3,4, 5, 7.) It was expressed at the Hearing that similar concerns exist in Babylon which could be remedied by such a provision. (Hearing at 3-4.) The adoption of the subject legislation is reflected in the Babylon Town Code as being enacted December 15, 1987, by Local Law Number 11-1987. (Pl.'s 56.1 ¶ 10.)

The legislation purports to regulate the location of "Adult Uses" throughout the Town by prohibiting Adult Uses from: (a) locating within a 500 foot radius of any area zoned for residential use; (b) locating within a one-half mile radius of another Adult Use; and (c) locating within a 500 foot radius of any school, church, or other place of religious worship, park, playground, or playing field. (Pl.'s 56.1 ¶ 11; Code § 213-378.) In designating the setbacks specified above, the legislation gives no definition or description as to any formula for measurement (i.e., door to door; property line to property line; the shortest route of pedestrian traffic). (Pl.'s 56.1 ¶ 12.) Prior to the adoption of the legislation, there was no other legislation in place purporting to regulate adult use businesses in the Town differently than any other commercial site of public assembly. (Pl.'s 56.1 ¶ 13.)

The legislation provides that "Adult Uses" would be allowable only in any industrial district and only as a special exception by the "Board of Appeals after Public Hearing." (Pl.'s 56.1 ¶ 14; Code § 213-376(A).)

The legislation sets forth "purposes and considerations" as follows:

(Pl.'s 56.1 ¶ 14; Code § 213-376(B).)

By virtue of the locational restrictions imposed by the subject legislation, after January 1, 1993, any pre-existing "nonconforming use" was to have terminated operation by that date and any business attempting to relocate would be subject to the Code's limitations pursuant to which they may be legally established or operated within the jurisdictional limits of the Town. (Pl.'s 56.1 ¶ 16.)

By Local Law, Special Exception Use Permits was added to the Babylon Town Code on April 8, 1988. (Pl.'s 56.1 ¶ 18; L.L. No. 2-1988.) The legislative findings enumerated in Section 213-382 state in part that the Board has "articulated the standards that it will duly consider in determining the imposition of conditions it may place upon particular uses of land in order to protect abutting landowners. . . ." (Pl.'s 56.1 ¶ 18; Code § 213-382.)

Under Article XXXII, Section 213-383, General Standards for issuance, fourteen (14) separate and distinct findings must be made to establish a "special exception" that is not "permitted by right." (Pl.'s 56.1 ¶ 18; Code § 213-383(A).) Prior to a special use permit being issued, the Town Board must find:

  (1) Such use is reasonable, necessary and will be
  in harmony with and promote the general interests
  and welfare of the surrounding community;
  (2) The neighborhood character and surrounding
  property values are reasonably safeguarded;
  (3) The proposed use will not prevent the orderly
  and reasonable use of adjacent property;
  (4) The site is particularly suitable for the
  location of such use in the community;
  (5) The access facilities are adequate for the
  estimated traffic from public streets, so as to
  ensure the public safety and to avoid traffic
  (6) There is room for creation of off
  street-parking and truck-loading spaces at least
  in the number required by the applicable
  provisions of this chapter, but in any case,
  adequate for the actual anticipated number of
  occupants of the proposed use, whether employees,
  patrons or visitors, and, further, that the layout
  of the spaces and related facilities can be made
  convenient and conducive to safe operation;
  (7) The proposed use will not pose risks to the
  public health or safety;
  (8) The characteristics of the proposed use are
  not such that its proposed location would be
  unsuitably near to a church, school, theater,
  senior citizens' residence, recreational area or
  other place of public assembly;
  (9) Adequate buffer yards and screening can be
  provided to protect adjacent properties and land
  uses from possible detrimental impacts of the
  proposed use;
  (10) Adequate provision can and will be made for
  the collection and disposal of stormwater runoff,
  sewage, refuse and other liquids, solid or gaseous
  waste which the proposes use will generate;
  (11) The natural characteristics of the site are
  such that the proposed use may be introduced there
  without undue disturbance of destruction of
  important natural features, systems or processes

  and without significant negative impact to
  groundwater and surface water on and off the site;
  (12) The lot area is sufficient, appropriate and
  adequate for the use, as well as reasonably
  anticipated operation expansion thereof;
  (13) The proposed use can and will comply with all
  provisions of this chapter and of the code which
  are applicable to it and can meet every other
  applicable federal, state, county and local law,
  ordinance, rule or regulation; and
  (14) The proposed use will not result in
  unacceptable levels of noise, vibration, smoke,
  dust, odor, fumes or noxious gases, nor negatively
  impact upon air quality.

(Pl.'s 56.1 ¶ 19; Code § 213-383(A).)

In addition, Subsection (B) provides:

  "Before any special exception use permit is
  issued, the Town Board shall determine that all
  applicable requirements of this chapter have been
  met and may impose any additional requirements to
  assure that the standards stated in Subsection A
  will be met. The Town Board may impose such
  additional conditions as it deems appropriate to
  ensure the purposes set forth in Subsection A,
  including but not limited to: (1) A limit on hours
  of operation upon a finding that such a limit is
  necessary to the conditions set forth in this
  section; (2) A requirement that the applicant post
  a bond with sufficient surety upon a finding that
  such bond is necessary to protect the value of the
  property, character of the neighborhood and the
  public health and safety."

(Pl.'s 56.1 ¶ 19; Code § 213-383(B).) Pursuant to Section 213-385, a public hearing is required and "shall be on ten (10) days notice to the public . . ." (Pl.'s 56.1 ¶ 20; Code § 213-385.) The Code provides no specific direction regarding the scheduling or deadline for any such public hearing. (Pl.'s 56.1 ¶ 20.)

On January 24, 1995, a letter was sent from the Town attorney advising Crystal that "pursuant to Babylon Town Code Section 213-381, your right to operate an adult use as defined by Babylon Town Code Section 213-377 at your present location has expired". (Pl.'s 56.1 ¶ 21; Compl. Ex. D.) On May 30, 1995, a letter was sent from the Town attorney, to Crystal's previous counsel, advising Crystal that:

  Please take notice that your client must cease
  operating an Adult Use from his location within 60
  days from the date of this letter, after which the
  Town will take all action necessary to enforce the
  provisions of the Babylon Town Code regulating
  Adult Use as it applies to your client. This
  action will include seeking an injunction and the
  issuance of criminal summonses.

(Pl.'s 56.1 ¶ 22.)

Plaintiff asserts that pursuant to the Code, no Adult Use can begin operating in the Town without approval and issuance of a Special Use Permit, the issuance of which requires actions by the Town's Planning Commission, Board of Appeals and Town Board. (Pl.'s 56.1 ΒΆ 23.) In support, Plaintiff avers that there is no time limit set forth in any Town document as to when an Adult Use's application for a Special Use Permit must be considered as complete and ready for consideration by the Planning Commission. There is also no time limit set forth in any Town document as to when the Planning Commission, Board of Appeals or Town Board must rule on an application by an Adult Use for a Special Use Permit. In addition, there is no indication in any Town document of a limit or restraint on the ability ...

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