3/99 - ZONING AND THE REGULATION OF ADULT ESTABLISHMENTS

ZONING AND THE REGULATION OF ADULT ESTABLISHMENTS

BY DONNA KLEIN, nyarm

Seated: Robert Calica, Reisman Peirez Reisman & Calica, LLP; Donna Klein, NYARM Executive Director; Wayne Reed and Ted Yates, NYARM Associate Board Members. Standing: Vince Callagy, NYARM Treasurer; John Hendrick, Manager Board Member; P. Leonard Jones, President; Ben Jacobson and Nelson Davis, Associate Board Members and Michael Wegielski, Sergeant-at-Arms.

The guest speaker at the New York Association of Realty Managers (NYARM) February monthly membership meeting was Robert M. Calica, Esq., a partner in the law firm Reisman Peirez Reisman & Calica, LLP. Mr. Calica specializes in zoning cases that protect residential neighborhoods from adult uses which are not in harmony with family living, schools or places of worship and should therefore not be located in a district established for community living.

According to Mr. Calica, adult video stores, movie theaters that focus on films dealing with specified sexual activities and anatomical areas, bars, cabarets, etc. cannot coexist within residential areas without having a negative impact. They also cannot coexist in business areas without having a negative, secondary effect. Therefore, in 1995, a regulation was adopted in New York City that stated that adult business, such as those mentioned above, could not operate in a residential or commercial zone. According to the experts that defend the adult entertainment industry, the only place you can operate an adult use in the City of New York is quite literally the Staten Island landfill and the Brooklyn Navy Yard.

TOWN OF ISLIP STANDARD

Wayne Reed, Northeast Plumbing Specialties; Mary LaSanta and Ron Myers, Mt. Hope Housing Company and Nelson Davis, JAD Bags.

While civil liberties advocates viewed with alarm the prospect of the "forced relocation of some 84% of [New York] City's 177 adult businesses" which a unanimous New York Court of Appeals upheld last February, this result was dictated nearly ten years earlier in the Town of Islip, Long Island. The Court of Appeals cited 20 years of municipal studies, from Islip to Austin, Texas, which reported the "negative social consequences" and the threat to the "economic viability of the community as a whole" which proliferating adult uses pose to the communities in which they are located, with documented increases in crime, depression of property values and deterioration of the economic and social welfare of the affected communities.

Mr. Calica reminded the audience that, in an era which focuses on individualism and the stretching of the first amendment to the nth degree, "it is well to observe that both cases do not represent any retreat by the courts from upholding constitutionally protected speech, but rather simply represent deference to the exercise of good, old-fashioned, boring municipal zoning power."

Marc Lewis, JAD Bags; Mindy Krause,Taranto & Associates; Gary Mortman, R.D. Mortman; Lea Pi, American Pipe & Tank; Ron Garfunkel, Service Directions; Suz Landi, North shore Towers and Lori Mortman, R.D. Mortman.

In the Town of Islip case, the Court of Appeals said: "The governmental interest supporting the ordinance is the eradication of the effects of urban blight and neighborhood deterioration and furtherance of the general underlying purposes of zoning, the enhancement of the quality of life for the town#s residents. Studies relied on and prepared by the town demonstrated that the location of adult businesses in certain areas heightened public apprehension about entering them, thus driving out traditional downtown businesses as customers avoided locations near adult bookstores, increasing criminal activity and lowered nearby residential property values. To be sure, planning studies, by their nature, are not scientific nor their prediction certain but the town was entitled to credit the evidence in its study of past deterioration and the prediction that, unless remedied, the deterioration would continue; it was not required to wait before acting until its business areas became wastelands. The study is more comprehensive than some' and the town's conscientious effort to preserve the quality of its urban life is entitled to 'high respect'."

NEW YORK CITY DECISION

Chuck Holden, Esplanade Gardens; Irwin Chopak, Dayton Beach Park #1; Irwin Sandler, Scientific Compactor/Boiler; Wayne Reed and Angel Velasquez, Lockman Security Systems.

These same standards of judicial review of zoning actions were echoed ten years later when the Court of Appeals invoked the same principles to conclude that the forced relocation of a majority of New York City's adult businesses was valid.

The New York City's law's requirement that adult uses be relegated to commercial and manufacturing/industrial zones simply imposes the same requirement that any type of business found to have a negative "secondary impact" which adversely affects community character and residential property values (as with a shopping mall or multiplex movie theater) be located in a venue which is proper to such a use.

Barbara Glover, Queensview; Patricia Ruggerio, Century Operating Corp; Bob Bernstein, Bernstein & Bernstein, Esqs and Dave Goldstein, American Bulb Corp.

In conclusion, Mr. Calica stated that no one questions the importance of protecting the vital force of the First Amendment or denies that sex-related businesses fall within the Constitution's protections. Certainly, the court recognized that the constitution requires that "ample space [be] available for adult uses after the rezoning" so that both operators and patrons of adult businesses will have a forum for constitutionally-protected expression. Yet, as the court emphasized in upholding both the New York City ordinance and the Islip law upon which it is based, it is entirely proper for municipalities to protect residential communities from the negative "secondary effects of adult uses," just so long as the goal is not to suppress them.