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March 11, 2003


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



Plaintiffs commenced the instant action against the defendant City of Schenectady, New York ("City" or "Schenectady") contending that Schenectady's zoning ordinance regulating adult entertainment businesses violates their constitutional rights. A second cause of action alleges that amendments to the ordinance were not properly enacted. Plaintiffs move for summary judgment pursuant to Fed.R.Civ.P. 56 seeking a declaration that the City's Adult Entertainment Ordinance (hereinafter "Adult Entertainment Ordinance" or "Ordinance") as amended is unconstitutional on its face and as applied to them. Defendants oppose. Oral argument was heard on December 23, 2002 in Albany, New York. Decision was reserved.


This case was the subject of a prior Memorandum — Decision & Order dated June 29, 2001, Erie Blvd. Triangle Corp. v. City of Schenectady, 152 F. Supp.2d 241 (2001), familiarity with which is assumed. The facts pertinent to the instant motion for summary judgment are set forth below.

A. The Parties

B. Adult Entertainment Ordinance

In July 1984, the City enacted its adult use zoning regulations. See City of Schenectady Code of Ordinance § 264-91. (Id. at ¶ 7.) The Adult Entertainment Ordinance confined future adult entertainment business to the City's Light Industrial "G" and Heavy Industrial "H" zoning districts. (Id.) Adult entertainment businesses wishing to operate in the City were required to obtain a special permit. (Id.) The Ordinance also provided certain "proximity restrictions" within zoning districts G and H. Specifically, adult entertainment businesses could not be located within 500 feet of any other adult use; 500 feet of any building containing one or more dwelling units or rooming units; 1000 feet from the property line of any public or private school, library, park, or playground; or 500 feet from the property line of any church or other house of worship. (Id.) Existing adult entertainment establishments were "grandfathered" under the Ordinance. As a result, Erie's two establishments became lawful, non-conforming uses. (Id.)

On January 11, 1999, the City adopted City Ordinance 98-25, which amended the Adult Entertainment Ordinance. (Id. at ¶ 8; Pl.'s Ex. B.) Ordinance 98-25 altered the way in which the proximity restrictions were calculated; added proximity restrictions with respect to nursery schools, day care centers and primary and secondary schools; eliminated the need for special permits; and terminated the pre-existing, non-conforming uses within one year of January 11, 1999. (Id.)

On July 12, 1999, the City adopted Ordinance 99-11 which again amended the Adult Entertainment Ordinance. This amendment provided that adult businesses could not be located within 300 feet of the property line of another adult business. (Id. at ¶ 9; Pl.'s Ex. C.) Ordinance 99-11 also terminated pre-existing, non-conforming uses within one year of the Ordinance's enactment. (Id.)

On July 25, 1999, the City adopted a new ordinance that expressly repealed the amendments of Ordinance 98-25. (Id. at ¶ 10.) On November 13, 2000, the City adopted Ordinance 2000-13, which excluded bicycle and hiking trails from the proximity restrictions. (Id. at ¶ 11; Pl.'s Ex. E.) Thus, adult entertainment businesses could be located within 1000 feet of bicycle or hiking trails. (Id.) Ordinance 2000-13 was adopted as a direct result of the litigation in Nikolaidis v. City of Schenectady, 00-CV-1236. (Id. at ¶ 12; Def.'s Ex. A at 85.)

In adopting the amendments to the Adult Entertainment Ordinance, the City relied upon a report prepared by Robert Penna, Ph.D. (the "Penna Report") (Id. at ¶ 13.) The Penna Report addressed the adverse secondary effects alleged to be associated with adult entertainment in other municipalities. (Id. at ¶ 14.) The report did not specifically study Schenectady. (Id.) The City also purports to have relied upon other anecdotal evidence of the secondary effects of sexually oriented businesses. (See Brockbank Aff. at ¶¶ 3-7; Oct. 31, 2002 Jurczynski Aff., at ¶¶ 4-8). This other evidence includes convictions on charges of prostitution of the owner and his wife of a nude dancing facility (the Toy Box) in the City; complaints from police officers regarding sexual activity in and near sexually oriented businesses within the City; citizen complaints of noise, increased crime, declining property values, concern for the welfare of their families, and sexual activity in and near sexually oriented businesses within the City; complaints from business owners; and personal observations of the City's mayor. (Id.; May 18, 2001 Jurczynski Aff. at ¶ 5.) The City did not obtain or review any data regarding property values, crime rates, or traffic or noise levels within the vicinity of adult businesses. (Pl.'s Stmnt. of Mat. Facts at ¶ 17.) Further, the City does not have any records of citizen complaints. (Id. at ¶ 19.)*fn1 The only evidence of local secondary effects considered by the City's Planning Commission consisted of the testimony of two residents. (See Pl.'s Ex. M, p. 9-10.) One of the residents stated that adult bookstores are an eyesore and threaten the moral character of the City. (Id.) The other resident, a representative of the Calvary Baptist Church, testified that adult material is detrimental to the community. (Id.)

The amendments to the Adult Entertainment Ordinance were enacted by the City without the substance of the amendments being referred to the City's Planning Commission for review, and without a public hearing or notice to the public of their passage. (Pl.'s Stmnt. of Mat. Facts at ¶ 29.)

C. Enforcement of the Zoning Ordinance Against Erie

On January 6, 2000, the City provided Erie with notice that it would have to close its adult oriented businesses by July 11, 2000. (Id. at ¶ 30.) Erie appealed this determination to the Schenectady Board of Zoning Appeals ("SBZA"). (Id. at ¶ 31.) The City opposed the appeal. (Id. at ¶ 33.) In June 2000, the SBZA granted Erie an extension to continue operating its adult oriented businesses until June 13, 2001. (Id.) On July 7, 2000, the City informed Erie that it was in violation of City Code 128-6 with respect to the use of doors on video booths at the businesses. (Id. at ¶ 34.) The City ultimately withdrew its enforcement effort regarding the video booths after receiving a letter from Erie's counsel. (Id. at ¶ 36.)

D. Efforts to Obtain an Alternate Location

In July 2000, plaintiff MCEC purchased certain property within the City purportedly to open an adult entertainment establishment that complied with the Adult Entertainment Ordinance. (Id. at ¶ 37.) On August 5, 2000, plaintiff Broadway applied for a building permit to construct a new building to house an adult bookstore. (Id. at ¶ 38.) Thereafter, the County of Schenectady commenced eminent domain proceedings to condemn the property purchased by MCEC. (Id. at ¶ 39.)

E. Procedural History


A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary ...

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