zoning.") (internal quotations and citations omitted); see also Giovani Carandola, 303 F.3d at 516 ("[A] governmental entity may rely on the `evidentiary foundation' set forth in [Renton and Young] . . . to `conclude that such nude dancing [i]s likely to produce the same secondary effects in its jurisdiction unless the plaintiff produces clear and convincing evidence to the contrary.") (quoting City of Erie v. Pap's A.M., 529 U.S 277, 296-97 (2000) (plurality opinion)).
4. Alternative Avenues of Communication
The City's Ordinance may be found to be unconstitutional if it does not allow for reasonable alternative avenues of communication. Renton, 475 U.S. at 53-54. This is because, "[t]hough the inference may be inexorable that a city could reduce secondary effects by reducing speech, this is not a permissible strategy. The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech." Alameda Books, 122 S.Ct. at 1739-40 (Kennedy, J., concurring). "Content-neutral zoning ordinances . . . are permissible so long as `reasonable avenues of communication' are left open . . . a question that is answered through an analysis of how much land is available in which adult businesses may be located under the zoning system." Littleton, 311 F.3d at 1239 (quoting Renton, 475 U.S. at 53-54). "In undertaking that analysis, the courts must examine what land is actually available, but also must keep in mind that adult businesses must `fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees.'" Id. (quoting Renton, 475 U.S. at 54).
The City, through the affidavit of its zoning officer, states that there are 924 acres and 349 parcels located in the G and H zones in which adult entertainment establishments can locate. (Def.'s Ex. H, ¶ 4.) Of these 924 acres and 349 parcels, 439 acres and 101 parcels would be potential sites where adult entertainment businesses could locate. (Id.) Taking into consideration the proximity requirements of the Adult Entertainment Ordinance, the City asserts that there are a total of thirteen potential sites for approximately four existing adult entertainment establishments. (Id., ¶ 6.) The City contends that its data is based upon zoning office files "which identify 101 potential lots within G and H zones, identify readily available public access to such lots, identify the properties as suitable for commercial enterprises and are, or have the potential to be, part of an actual business real estate market." (Id. at ¶ 8.)
Plaintiffs agree with the City with respect to three potential sites. (Pl.'s Ex R, ¶ 11.) Plaintiffs contend that the remaining potential sites offered by the City are not fit for general commercial operations. According to plaintiffs, two of the sites consist of a local governmental sewage treatment plant and a newspaper printing plant, and therefore, are unlikely to become available for commercial use. (Id. at ¶ 14.) Plaintiffs insist that the remaining sites are industrial sites that either do not have the necessary infrastructure (i.e. street lights and sidewalks) necessary to protect the public health, safety, and welfare, or cannot provide sufficient parking to comply with other City zoning requirements.
Much of plaintiffs' "evidence," however, consists of supposition; not actual evidence. For example, plaintiffs' expert states that "it is likely to be impossible for any of these industrial uses to provide adequate parking for an adult cabaret, and it could be problematic for them to provide parking for an adult bookstore." (Dkt. No. 50 at 16) (emphasis added.)*fn8 These possibilities are an insufficient evidentiary basis upon which to rule out the City's proposed sites and grant summary judgment to plaintiffs. These competing opinions merely highlight the existence of issues of fact that preclude the grant of summary judgment in favor of plaintiffs.
B. Enactment of Amendments
Plaintiffs also attack the amendments to the Adult Entertainment Ordinance on the ground that they were not enacted in accordance with the proper procedures. A proceeding pursuant to N.Y.C.P.L.R. Art. 78 is available to challenge whether an ordinance was enacted in accordance with the proper procedures. Save Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193, 202 (1987). The statute of limitations for Article 78 proceedings is four months. N.Y.C.P.L.R. § 217; Save Pine Bush, 70 N.Y.2d at 203. Plaintiffs failed to timely commence an Article 78 proceeding challenging the procedures used to enact the amendments to the Adult Entertainment Ordinance. The plaintiff's second cause of action must be dismissed.
The City of Schenectady's Adult Entertainment Ordinance does not ban all adult uses and is content neutral. Questions of fact remain whether the Ordinance is narrowly tailored to serve a substantial government interest. Questions of fact also remain whether the Ordinance allows for reasonable alternative avenues of communication. Plaintiffs failed to timely challenge the procedures used to enact the amendments to the Ordinance.
Accordingly, it is
1. Plaintiffs' motion for summary judgment is DENIED; and
2. Plaintiffs' Second Cause of Action is DISMISSED.
IT IS SO ORDERED.