Posted by: Patricia Salkin | January 14, 2016

Fed. District in NY Grants Motion to Dismiss Restaurant’s Due Process and Takings Challenges to Noise Ordinance

In 2004, Plaintiffs began operating the New Orleans Louisiana Waterfront Barbeque, under the name Nolas BBQ, in the City of Rochester. Between 2004 and 2014, Nolas applied for and was granted several special use permits allowing outdoor musical performances. After the 2007 permit expired, Plaintiffs applied for a new permit to continue having limited outdoor amplified entertainment. In 2013, the City issued a four-month permit, which reduced Nolas’ ability to provide outdoor amplified musical entertainment. The Planning Commission amended its decision in June, to clarify that on Sundays and Wednesdays, when “acoustic music” was allowed, vocalists and instrumentalists could use microphones attached to “small speakers,” but instruments could not be plugged directly into amplifiers. The Supreme Court of New York denied Plaintiffs’ Article 78 petition. In January 2014, the Commission issued Plaintiffs a three-year permit that further reduced Plaintiffs’ ability to present live outdoor amplified music. Rather than file another Article 78 proceeding, Plaintiffs choose to commence this action pursuant to § 1983.

The Plaintiffs first alleged that the Commission violated due process by unreasonably suggesting that live amplified performances could comply with the Municipal Code’s Noise Ordinance. However, because Plaintiffs failed to provide any evidence that this was a protected property interest, the due process claims were dismissed. As to the Equal Protection claim, the Plaintiffs argued that the decision to restrict live outdoor amplified music at Nolas violated equal protection, because other organizations, including two similar restaurants, were allowed to have live outdoor amplified music. Here, Plaintiffs again failed to substantiate their allegation since they failed to offer any facts to explain how they were similarly situated, or that these establishments received similar noise complaints. Accordingly, these claims were likewise dismissed.

Plaintiffs next claimed that Defendants violated the Fifth Amendment’s “Takings Clause” by “eliminating” Plaintiffs’ “ability to present seasonal live outdoor amplified music entertainment” at Nolas, thereby reducing the value of the establishment without compensation. The Court viewed this as an alleged non-per se regulatory taking that needed to be analyzed under Penn Central because the Plaintiffs did not allege they lost all economic benefit. The court determined that prohibition of the most profitable or beneficial use of a property did not necessitate a finding that a taking has occurred, and that the pleading failed to plausibly allege an economic impact that rose to the level of a taking. Moreover, the pleading did not allege that Plaintiffs had any reasonable expectation that they would be able to have unrestricted live outdoor amplified music under the zoning code as it existed at that time since the surrounding area was mostly residential. Finally, the restriction was neither complete nor permanent, since the special use permit was limited in duration, allowed Plaintiffs to have five outdoor amplified concerts, and left the door open for further concerts if Plaintiffs could demonstrate a plan to control noise. Therefore, the court found that no taking claim had occurred.

Lastly, Plaintiffs contended that the Noise Ordinance was unconstitutionally vague and overbroad. This claim was dismissed due to Plaintiffs’ failure to address whether they had standing to challenge the noise ordinance. The Court found that assuming Plaintiffs had suffered an injury, they had not shown that it was “fairly traceable” to the noise ordinance. Here, it appeared to the court that Plaintiffs’ alleged injury arose directly from the independent application of a completely different statute. Thus, even if the noise ordinance had been struck down, the Planning Commission could still limit Nolas’ ability to have amplified outdoor music by finding that Nolas’ excessive noise would have an “undue adverse effect” on the neighbors, pursuant to this alternate statute. Defendant’s motion to dismiss was therefore granted.

Kabrovski v City of Rochester, 2015 WL 7871057 (WDNY 12/3/2015)


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