2nd Circuit: Courts must consider “adequacy of alternative sites” at time of challenge to SOB ordinance
TJS of New York, Inc. v. Town of Smithtown, No. 08-2789-cv (2nd Cir. March 10, 2010)
2nd Circuit: When evaluating First Amendment challenges to a zoning ordinance, a court must consider the adequacy of alternative sites at the time the ordinance is challenged.
In its suit, TJS of New York argues that the Town of Smithtown’s sexually oriented business ordinance “failed to preserve adequate alternative sites for adult entertainment uses.” The United States District Court for the Eastern District of New York (Feuerstein, J.) denied TJS’s request for a declaratory judgment and permanent injunction barring enforcement of the ordiance “on the ground that adequate alternative sites existed at the time the ordinance was passed.” Vacating the District Court’s decision, the Second Circuit held that “when evaluating First Amendment challenges to a zoning ordinance, a court must consider the adequacy of alternatives at the time the ordinance is challenged.”
We reach this conclusion because we believe that the First Amendment does not allow courts to ignore post-enactment, extralegal changes and the impact they have on the sufficiency of alternative avenues of communication. The alternatives available when a statute is passed can disappear, thus decreasing the adequacy of alternative sites actually available to would-be speakers . . . While our holding is not specifically established by existing caselaw addressing either adult entertainment zoning or time, place, and manner restrictions, we conclude that it is fully grounded in the approaches taken by the Supreme Court in Young, Renton, and their progeny. These cases focus on the practical and continuing impact of zoning regulations on adult entertainment uses as applied, rather than on their facial constitutionality when passed.
In Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County, Md., 256 F.Supp.2d 385 (D. Md. 2003) and Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860 (11th Cir. 2007) it was held that courts ought to consider the adequacy of alternative sites at the time the ordinance was passed and at the the time of its taking effect, respectively. The Second Circuit addressed these decisions:
We believe that these cases hold no more than that courts should in the ordinary course consider the adequacy of alternative sites available when an ordinance was passed. To the extent that these cases suggest that courts should only consider the adequacy of alternatives existing at the time of an ordinance’s passage, we disagree. The adequacy of sites left available by an ordinance at the time of its passage may be relevant to its constitutionality, and nothing in our opinion today should be read as holding to the contrary. (That issue is not before us.) But whether or not it is constitutionally necessary in some circumstances for an ordinance to preserve adequate alternatives at the time of passage, it is not constitutionally sufficient.