| Town of Delaware v Leifer |
| 2018 NY Slip Op 04614 [162 AD3d 1350] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| Town of Delaware, Respondent, v Ian Leifer,Individually and Doing Business as The Camping Trip, Appellant. |
Russell A. Schindler, Kingston, for appellant.
Kenneth C. Klein, Jeffersonville, for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Schick, J.), entered July 20, 2017in Sullivan County, which, among other things, granted plaintiff's motion for summaryjudgment.
Defendant owns real property in the Town of Delaware, Sullivan County. He began holding areligious observance on the property in 2014 that, even by his own account, quickly evolved intoan annual, multi-day, music festival attended by several hundred people. The property lies in aRural District under the zoning regulations set forth in chapter 220 of the Code of the Town ofDelaware (hereinafter zoning code), and the zoning code makes clear that "[w]henever aproposed use is not specifically permitted [in a zoning district], it shall be deemed prohibited"(Code of Town of Delaware § 220-11). A theater, defined in the zoning code as "[a]building or room or outdoor facility for the presentation of plays, films, other dramaticperformances, or music," is a prohibited use in the Rural District (Code of Town of Delaware§ 220-5; see Code of Town of Delaware §§ 220-9,220-11). As planning was underway for the 2016 festival, town officials advised defendant that itviolated the prohibition against theaters in the area and required a use variance.
[*2] Defendant did not seek a variance, prompting plaintiff tocommence this action for injunctive relief barring him from preparing for or holding the festivalmoving forward. Following joinder of issue, each party moved for summary judgment. SupremeCourt, in relevant part, granted plaintiff's motion and enjoined defendant "from continuing toadvertise, sell tickets to and from holding or permitting to be held upon the premises" the festivaland related activities. Supreme Court made clear that the injunction did not prohibit any "usesconsistent with the single family residence situate on the [p]remises." Defendant nowappeals.
An outdoor festival with the presentation of music falls within the zoning code definition of a"theater" prohibited in the Rural District. Defendant challenges the validity of the theaterrestriction by arguing, among other things, that it excessively interferes with expressive conductin violation of the First and Fourteenth Amendments to the US Constitution. Inasmuch asplaintiff invoked the strong "presumption of validity accorded to zoning legislation" (Sunrise Check Cashing & PayrollServs., Inc. v Town of Hempstead, 20 NY3d 481, 486 [2013]; see Stringfellow's ofN.Y. v City of New York, 91 NY2d 382, 395-396 [1998]), it fell to defendant, the partyattacking the theater restriction, to raise a question as to its validity (see Boyles v Town Bd.of Town of Bethlehem, 278 AD2d 688, 690 [2000]; see e.g. Schulz v State of N.Y. Exec., 134 AD3d 52, 55 [2015],appeal dismissed 26 NY3d 1139 [2016], lv denied 27 NY3d 907 [2016]). He didnot do so.
The theater restriction does not target specific speech or ideas and instead regulates the time,place and manner in which expressive activity may occur, making it "[a] content-neutralrestriction on speech [that] is consistent with the First Amendment if it: (1) is narrowly tailoredto serve a significant government interest, and (2) leaves open ample alternative channels forcommunication" (Vosse v City of New York, 666 Fed Appx 11, 12 [2d Cir 2016], certdenied 580 US &mdash, 137 S Ct 1231 [2017]; see People v Barton, 8 NY3d 70, 76 [2006]). In that regard, theatersare permitted in more developed areas under the zoning code but not in the Rural District, whichis intended to preserve areas "conducive to the mutual existence of agricultural and low-densityresidential uses as well as certain unobtrusive commercial activities" (Code of Town of Delaware§ 220-9, Attachment 1:4). Plaintiff has a substantial governmental interest inpreserving the character of the area and preventing threats to that character, such as excessivenoise (see Ward v Rock Against Racism, 491 US 781, 796-797 [1989]; Carew-Reid vMetropolitan Transp. Auth., 903 F2d 914, 917 [2d Cir 1990]; Matter of Town of Islip vCaviglia, 73 NY2d 544, 554-555 [1989]). Alternative channels for communication also existin that the zoning code permits theaters in more developed areas (see Carew-Reid vMetropolitan Transp. Auth., 903 F2d at 919; Matter of Town of Islip v Caviglia, 73NY2d at 554-555).
The primary question, as such, is whether the theater restriction is narrowly tailored to"promote[ ] a substantial government interest that would be achieved less effectively absent theregulation" (United States v Albertini, 472 US 675, 689 [1985]; accord Ward v RockAgainst Racism, 491 US at 799; see People v Barton, 8 NY3d at 77-78). The theaterrestriction is unambiguously limited to efforts to facilitate the "presentation of plays, films, otherdramatic performances, or music" (Code of Town of Delaware § 220-5), and "topresent" means "to bring (something, such as a play) before the public" (Merriam-WebsterOnline Dictionary, present [https://www.merriam-webster.com/[*3]dictionary/presenting]). Its terms do not encompass the type ofprivate activity undertaken by homeowners and, indeed, the zoning code makes clear that "use[s]customarily conducted entirely within a dwelling and carried on by the inhabitants residingtherein" constitute permitted home occupation in the Rural District (Code of Town of Delaware§ 220-5; see Code of Town of Delaware § 220-9). A residentin the Rural District can accordingly worship, watch films, play music, have family and friendsvisit and engage in other private behavior customarily conducted by homeowners without fear ofrunning afoul of the theater restriction. The theater restriction only prevents a property owner inthe same zoning district from setting up facilities for a cultural presentation, such as an outdoormusic festival where hundreds of paid ticket holders enter onto his or her land to take part in it.The theater restriction therefore narrowly addresses the latter situation and is valid, even if onecould postulate a still narrower way to do so.
Defendant's further assertions that the theater restriction is overbroad and void for vaguenessare unavailing. With regard to the former, the theater restriction legitimately seeks to limit publiccultural presentations to areas where they would not have a damaging impact and, as a result,does not "facially 'prohibit[ ] a real and substantial amount of' expression guarded by the FirstAmendment" so as to have a chilling effect (People v Marquan M., 24 NY3d 1, 8 [2014], quoting People vBarton, 8 NY3d at 75; see Grayned v City of Rockford, 408 US 104, 119-120 [1972];cf. Board of Trustees of the Vil. ofGroton v Pirro, 152 AD3d 149, 156 [2017]). As for the latter, the theater restriction islimited by its language to indoor and outdoor facilities where cultural performances are staged,and its wording "invites neither misunderstanding by a person of ordinary intelligence norarbitrary enforcement by [plaintiff]" (Matter of Sullivan Farms IV, LLC v Village of Wurtsboro, 134 AD3d1275, 1281 [2015]; see People v Stuart, 100 NY2d 412, 422 [2003]; Matter of Oakwood Prop. Mgt., LLC vTown of Brunswick, 103 AD3d 1067, 1070 [2013], lv denied 21 NY3d 853[2013]; Clements v Village of Morristown, 298 AD2d 777, 778 [2002]).
We have considered defendant's remaining contentions, including that further discovery wasrequired pursuant to CPLR 3212 (f), and find them to be without merit.
McCarthy, J.P., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed, without costs.