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June 29, 2001


The opinion of the court was delivered by: David N. Hurd, United States District Judge



On November 30, 2000, plaintiff Erie Boulevard Triangle Corporation, d/b/a Another World Books and Adult Educational Books (hereinafter "Erie" or "plaintiff"), commenced the instant action against defendant City of Schenectady, New York (hereinafter the "City" or "defendant"), pursuant to 42 U.S.C. § 1983, 1985 and 1988. Following amendment of the zoning ordinance that is the subject matter of this action, plaintiff filed an amended complaint on May 10, 2001, asserting causes of action under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Defendant answered the amended complaint on May 23, 2001, and asserted seven affirmative defenses. Plaintiff now moves for a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65. Defendant opposes. Oral argument was heard on June 8, 2001, in Utica, New York. Decision was reserved.


This action arises from the amendment of a zoning ordinance restricting the location of "adult bookstores"*fn1 and "adult entertainment establishments"*fn2 within the City of Schenectady, New York. Plaintiff seeks to enjoin the City's enforcement of the amended ordinance against it. Following are the undisputed facts in this case, and where disputed, the facts as alleged by each party.

Plaintiff is a corporation which owns and operates two adult bookstores located within the City of Schenectady which sell non-obscene adult books and videos. These establishments have operated in their current locations since 1973, and it is undisputed that they have done so without any identifiable impact on the surrounding areas related to the operation of either of plaintiff's adult bookstores.
In 1984, the City promulgated adult use zoning regulations (the "Adult Ordinance" or the "Ordinance"), which restricted future adult businesses to the City's Light Industrial G and Heavy Industrial H zoning districts. The Adult Ordinance enforced additional location restrictions within each zoning district, and required a special use permit for operation of adult use businesses. Existing adult uses were grandfathered under the ordinance, and permitted to continue in their existing locations as nonconforming prior uses under the City's zoning ordinance.
The factual basis for the adoption of the Adult Ordinance was a finding by the City that "studies have been conducted by many cities which document the adverse secondary effects associated with the establishment and operation of adult bookstores and adult entertainment establishments within a community." (Strichman Aff., Exh. A.) The City's express intent in adopting the Adult Ordinance was to "[a]meliorate, mitigate, reduce, or prevent the widespread and unregulated imposition of the adverse secondary impacts of adult bookstores and adult entertainment establishments upon the residents, businesses, economic viability, property values, quality of life and general health, safety and welfare of the community." (Id.)
Though the Adult Ordinance as originally adopted permitted pre-existing adult uses outside of zones G and/or H to remain at their current locations, subsequent amendments in 1999 (hereinafter "the 1999 Amendment") prohibited operation of all adult use businesses outside of zones G and/or H, and required such businesses to relocate to within zones G or H following an "amortization period" of one year. Business owners who violated the amended ordinance faced the threat of fines and imprisonment.
As a factual basis for the 1999 Amendment, the City commissioned a report to be prepared by Robert M. Penna, Ph.D. Dr. Penna's report addressed the adverse secondary effects sometimes associated with adult use businesses as they relate to a variety of towns, cities, and other municipalities in New York State and nationwide.*fn3 In addition, the City received public comment at a hearing on the proposed amendment, and also relied on the opinion and experience of the mayor of the City of Schenectady. Because both of the plaintiff's establishments are located outside of zones G and H, plaintiff purchased a building within the acceptable zoning districts following the enactment of 1999 Amendment. When knowledge of plaintiff's intent to relocate became public, the City sought to acquire plaintiff's new property through the County of Schenectady's power of eminent domain.*fn4 This eminent domain action is presently the subject of litigation in state court.
Following the commencement of the instant action and a related case by another Schenectady adult business owner, the Adult Ordinance was again amended in 2000 (the "2000 Amendment"). The 2000 Amendment was adopted specifically to address an objection to the 1999 Amendment raised in the initial complaint in this action. This objection was that the 1999 Amendment failed to provide a sufficient number of receptor sites for adult uses because it defined "park" to include bicycle and hiking trails within zones G and H; therefore, the vast majority of sites within zones G and H were not available to adult uses because of their proximity to such trails. The 2000 Amendment redefined "park" to exclude bicycle and hiking trails from the list of protected uses which must be separated from adult businesses.
Plaintiff alleges that the City unconstitutionally enacted the 2000 Amendment without showing proper justification and/or reliance on any study, report, or fact-finding. The City denies this allegation and asserts that it was able to amend the ordinance based on the same study it relied on as the justification for the 1999 Amendment. Pursuant to an extension granted by the City's Board of Zoning appeals, plaintiff was permitted to continue operating its businesses at the current locations until June 13, 2001. To date, plaintiff's adult businesses remain in operation at the disputed locations.


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