In 1994 the Town of Smithtown enacted an adult use ordinance limiting the location of these uses to three zoning districts (shopping center business, light industry, and heavy industrial). The ordinance also set forth an amortization schedule eliminating adult entertainment uses after January 1, 1998 in all other zones. The adult use at property known as 490 West Jericho Turnpike continued, however, and in December 1998 the building at the site was damaged by fire. In May 2000, the Town amended its Code, adding, among other things, a requirement that adult retail shops or adult entertainment must be located at least: 500 feet from any residence district, park, playground, school, church or similar place of assembly; and 500 feet from any other adult use. The use at 490 West Jericho never relocated, although they had entered into an agreement with the Town to do so. In June 2004 the Town moved in state court for an order to close TJS’s use (known as “The Oasis”), and TJS responded with the current litigation in federal court alleging that the ordinance is unconstitutional.
The Plaintiff conceded that the ordinance was facially constitutional, but alleged that it does not provide a reasonable number of locations for adult entertainment businesses to open and operate. The Town disagreed. The District Court began by defining what an “available location” means. Reviewing a litany of cases, the Court noted that available sites can include: industrial sites, multiple sites under same ownership, currently unavailable sites (those not on the market), sites requiring new buildings, sites that could result in loss of profit or higher overhead, lots which need to be joined to meet minimum square footage requirements, undeveloped sites, and sites under government ownership or subject to long term leases. Courts will also look to see generally whether the sites are accessible to the general public, the surrounding infrastructure, and generally whether the sites are suitable for some generic commercial enterprise. The court noted that the Town has the initial burden of proving the existence of alternative avenues of communication. Further, to determine whether the number of available sites is “reasonable,” the Courts look to the total commercial area in the municipality, as opposed to the total land area. Further, the Court noted that the relevant time inquiry for purposes of determining the availability of alternative sites is the date of enactment of the ordinance, not the date of the trial.
At the trial, the District Court reviewed the 35 alternative sites identified by the Town as available to the Plaintiffs for the siting of an adult entertainment use. The Court discounted the reliability and credibility of the Plaintiff’s expert witness in evaluating these alternatives due to inconsistencies in his testimony and flawed methodology. The Court concluded that more than 145 acres is available in the Town as alternative locations for the Plaintiff to relocate his business. This, said the court, was sufficient. It amounted to at least 4.5% to 5% of the commercial acreage in the Town, and this was enough to meet the Town’s burden of proving sufficient alternative avenues of communication to ensure that the ordinance, as applied, is constitutional.
TJS of New York, Inc. v. Town of Smithtown, 2008 WL 2079044 (E.D.N.Y. 5/13/2008).
