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May 31, 2001


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



On March 14, 2001, plaintiff William W. Cochran, d/b/a Now Playing Video and Gifts ("Cochran" or "plaintiff") commenced the instant action against defendant Town of Marcy, New York ("the Town" or "defendant") pursuant to 42 U.S.C. § 1983. Defendant answered the complaint on April 17, 2001, and asserted six affirmative defenses.

Plaintiff now moves for a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65. Defendant opposes. Oral argument was heard on May 11, 2001, in Utica, New York. Decision was reserved.


This action arises from the adoption and enforcement by defendant of a zoning ordinance applicable to "adult uses."*fn1 The following are the undisputed facts in this case, and where disputed, the facts as alleged by each party.

In July 1996, Cochran opened a video and gift shop, called "Now Playing Video and Gifts," in the Town, selling adult and nonadult products. He has invested considerable capital in the development of his business. From its inception, this business has apparently operated with little or no effect upon the surrounding properties, and the record is devoid of evidence that plaintiffs business has produced any of the deleterious "secondary effects" sometimes associated with adult uses.

In 1997, the Town's zoning board adopted Local Law No. 5 of 1997 ("Local Law No. 5") as an amendment to its Zoning Law. Local Law No. 5 restricts the locations at which adult businesses may operate. Local Law No. 5 prohibits adult businesses from operating within 1500 feet of a residential area or any "school, nursery school, day care center, educational institution, house of worship, park or playground, historic or scenic resource, and civic or cultural facility." (Cochran Aff., Exh. E) In addition, no adult business may be located within 1500 feet of another adult use. (Id.)

As the factual basis for adopting Local Law No. 5, the Town established a committee which (1) reviewed the experience of other municipalities with adult uses; (2) interviewed the police chief of an neighboring community; (3) received a letter from a local real estate broker regarding the effect of adult businesses on property values; and (4) conducted a public hearing at which comment from the community was received.*fn2 The conclusion of the Town was that adult uses produce undesirable "secondary effects," and that the ordinance was justified "to promote the health, safety, morals and general welfare of the citizens of the Town and to prevent the deleterious location and concentration of adultoriented businesses within the Town."

Cochran contends that as a result of the adoption of Local Law No. 5, he has been effectively zoned out of business within the Town. He argues that as a result of the application of the ordinance's 1500 foot buffer zones, there is no location within the Town to which he can relocate his business. The Town contests this allegation, and offers an exhibit purporting to demonstrate that there are three streets within the Town that are more than 1500 feet from residential areas. In addition, plaintiffs expert, R. Bruce McLauglin, indicates that when read in conjunction with the remainder of the Town's zoning ordinance, Town officials are bestowed with considerable discretion to grant or withhold approval of adult uses which otherwise comply with the requirements of Local Law No. 5. (Cochran Aff., Exh. G.)

In any event, following the adoption of Local Law No. 5, Town of Marcy Building Inspector/Codes Enforcement Officer George Russell ("Russell"), issued an Order To Remedy Violation to plaintiff on February 29, 2000, for noncompliance with the zoning law. On April 4, 2000, plaintiff appealed this order to the Town Zoning Board of Appeals. Plaintiff did not appear at the appeal hearing, and following receipt of testimony, the order was affirmed on June 5, 2000. The following day, plaintiff was charged with criminal violation of Local Law No. 5, and following a hearing in January 2001, was ordered to pay a $500 fine. To date, plaintiff has continued to operate his business.


A. Preliminary Injunction

In order to grant a preliminary injunction, a court must find (1) that the plaintiff is at risk of imminent irreparable harm; and (2) that the plaintiff has demonstrated a likelihood of success on the merits or "sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168, 173 (2d Cir. 2000). When the party seeks an injunction to protect or regain a constitutional right, however, courts generally do not require a showing of irreparable harm. See, e.g., Paulsen v. ...

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