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T & A'S, INC. v. TOWN BD. OF TOWN OF RAMAPO

August 8, 2000

T & A'S, INC., PLAINTIFF,
V.
TOWN BOARD OF THE TOWN OF RAMAPO AND HERBERT REISMAN, IN HIS CAPACITY AS RAMAPO TOWN SUPERVISOR, DEFENDANTS.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case challenges the validity of an ordinance enacted by the Town of Ramapo regulating the location of adult entertainment establishments in Monsey, a village in Ramapo. Plaintiff, a topless bar in Monsey, seeks a declaratory judgment that the ordinance unconstitutionally abridges freedom of expression and an injunction barring its enforcement. This Court concludes that the ordinance violates plaintiff's right to freedom of expression. The ordinance is devoid of sufficiently objective criteria establishing where adult entertainment might be permissible. In addition the ordinance, by failing to provide reasonable alternative avenues of expression, as a practical matter, bars adult entertainment from Ramapo. Following are this Court's findings of fact and conclusions of law.

FINDINGS OF FACT

I. T & A's

T & A's, Ramapo's only existing adult establishment, opened in 1990 at 78 Route 59 in Monsey, an unincorporated hamlet. Located about 22 miles from New York City, Monsey was founded by Orthodox Jewish families in the 1970s and its population is largely Hasidic. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417 (2d Cir. 1995); Hudson Transit Lines, Inc. v. United States, 562 F.2d 174, 176 (2d Cir. 1977). T & A's acquired its lease from a business called "The Lamplighter," a former topless bar which had occupied the premises for over twenty years. Approximately five years remained on the lease at the time T & A's acquired it from The Lamplighter. The building has changed ownership since that time and T & A's renegotiated a lease with the current landlord which extends to 2004.

T & A's is located in a heavily commercial area and is easily accessible from the New York State Thruway, the Palisades Parkway, the Garden State Parkway and Interstate 287. T & A's draws patrons from Westchester, Dutchess, Orange and Rockland Counties in New York as well as Bergen County in New Jersey. The entertainment at the establishment, which has a 50 seat capacity, consists of nude and semi-nude dramatic dancing by women performing for men on stage accompanied by music, special lighting and effects, such as smoke. In accordance with New York law prohibiting the serving of alcohol in establishments that provide nude dancing, T & A's does not serve alcohol. Except for limited vending machine service, T & A's does not serve food.

II. Legislative History of Local Law No. 3-1997

Beginning in the early 1990s, Town Supervisor Reisman had several meetings with representatives of the Hasidic and Orthodox Jewish communities of Monsey, including several Rabbis, who complained about the entertainment at T & A's and the patrons that the business attracted. Specifically, the Rabbis disapproved of naked women performing for men, considering such entertainment immoral and degrading to women, and complained that T & A's was an inappropriate distraction to the men in their community. No members of the Monsey community however, presented evidence to Reisman of any concrete negative effects caused by T & A's.

In October of 1996, following the New York Supreme Court's decision in Stringfellow's of New York, Ltd. v. City of New York, 171 Misc.2d 376, 653 N.Y.S.2d 801 (1996) sustaining the validity of restrictions imposed by New York City on adult entertainment establishments, several Rabbis arranged a meeting with Reisman at which he was finally persuaded, in part by the religious community, to propose an adult use law, based upon the Stringfellow's decision. The legislation was specifically addressed at T & A's. Town Board Member David Stein testified that the 1000 foot buffer zone for schools and houses of worship was inserted into the law because there is a Jewish school approximately 800 feet away from T & A's.

The Town of Ramapo did not conduct any studies prior to the enactment of the Local Law regarding any negative or deleterious impact of adult businesses on the Town and this topic was not a subject of the Town's proof at trial. Rather, Town officials relied upon an adult entertainment use survey study report prepared by Manuel S. Emmanuel Assocs. Inc., Community Planning and Development Consultants for the Village of Nyack, dated November 26, 1991, and a report by the same planning and development consultants for the Village of Spring Valley dated, March 31, 1996.

III. Local Law No. 3-1997

The zoning law was adopted by the Town Board on February 12, 1997 as Local law No. 3-1997, following public hearings held on December 11, 1996 and January 22, 1997. The Local Law contains four sections. Section 1 set forth the ordinance's legislative intent, declaring it an effort to prevent the "significant adverse impact [of adult businesses] on the surrounding community." Section 2 amended Section 376-181 of the Ramapo Zoning Code by adding definitions of "Adult Establishment."*fn1 Section 3 amended the Table of General Use requirements of the Ramapo Zoning Code by adding adult establishments to its use table. Section 4 amended Article XII of the Ramapo Zoning Law by adding section "376-1217," which permits adult establishments to exist in the Commercial Shopping ("CS") district subject to specific buffer zones and "conditional use and special permit standards" contained in Articles XI and XII of the Ramapo Code. Section 4 contains the following specific restrictions on adult businesses:

A. Adult Establishments are permitted in the CS District subject to the following requirements:
1. No more than one adult establishment shall be located on any lot.
2. No adult establishment shall be established closer than 500 feet from the lot line of any other adult establishment.
3. No adult establishment shall be established closer than 1,000 feet from the lot line of any House of Worship, school, or 500 feet from the lot line of any residence district or day care center.
4. An adult establishment must comply with the parking requirements for restaurants as set forth in the Zoning Law in a CS District.

Local Law No. 3-1997, § 4. Lastly, Section 4(B) required existing adult businesses that do not comply with the local law to relocate within one year from the date of the amendment. Businesses may appeal to the Town Zoning Board of Appeals for an extended relocation period if an applicant can prove investment-backed expectations pursuant to Section 4(C).

The Table of General Use Requirements Part II, titled "Non-residential districts, CS District § 376-31," in Column C lists 15 uses which are conditional uses subject to the Town Planning Board's approval pursuant to the conditions set forth in the amendments as well as the requirements contained in Articles XI and XII of the Ramapo Code. The terms of the amendments add adult establishments as number 16 on this list. Each of the original 15 uses designated in Column C of the table of general use requirements for the CS District are assigned a Use Group identification.

The definitions contained in Section 2 of the ordinance define three types of adult establishments: an adult bookstore, an adult eating or drinking establishment and an adult theater. However, the ordinance fails to designate a use group classification for any of these adult uses. Potentially similar uses which are identified in the table of general use requirements are restaurants and taverns (use group B) and theaters (use group I). Each of the uses contained in Column B of the table of general use requirements in the CS zone are as-of-right uses, while the uses identified in Column C are conditional and special permit uses subject to approval by Town planners. Thus, an applicant for an adult use could not determine whether the application was for an as-of-right use or whether it was subject to the discretion of the Planning Board.

IV. Planning Board Discretion

Article XI of the Code sets forth the procedure for obtaining conditional use approval from the Ramapo Planning Board. Article XII lays out the substantive requirements to obtain conditional use approval and delegates to the Planning Board the discretion to grant, deny, restrict or condition such approval. Article XII, Section 376-120 is entitled "General Conditions" and grants the Planning Board the authority to "adopt additional rules and regulations" pursuant to other terms of the Local Law.

Article XII, Section 376-120 allows that in granting or denying conditional use approval, the Planning Board has discretion to determine if the proposed use is:

A. . . . in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and not be detrimental to ...

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