Posted by: Patricia Salkin | July 6, 2018

NY Appellate Court Affirms Injunction Prohibiting Outdoor Music Festival in Rural Zoning District

This post was authored by Amy Lavine, Esq.

A New York case decided in June found no First Amendment violation where an outdoor music festival was enjoined from holding its annual event on property zoned for rural residential uses.

The defendant owned property in the Town of Delaware, New York, and began hosting a religious event in 2014 that quickly expanded to become an annual music festival drawing several hundred attendees. Prior to the 2016 festival, town officials determined that the event qualified as a “theater” under the zoning regulations and was a prohibited use in the rural district. The defendant was advised that a variance would be necessary, and when he did not seek any variance relief, the town sought and received an injunction prohibiting him advertising, selling tickets, and from holding the festival on the premises. The trial court’s order granting the injunction specifically stated, however, that it did not prohibit uses that would be consistent with the single-family residence located on the property.

The court affirmed the injunction on appeal, finding that an outdoor music festival was properly classified as a “theater” under the town’s zoning ordinances. The defendant primarily argued that the theater restriction interfered with expressive conduct in violation of the First Amendment, but the court found that he failed to make a sufficient case to overcome the presumption of validity accorded to zoning regulations. As the court explained, the theater regulations were content neutral as they did not “target specific speech or ideas” and instead merely addressed the time, place, and manner in which expressive activities could be conducted.  Theaters were also permitted in other more developed areas throughout the town, and their exclusion from the rural district supported the town’s substantial government interests in preserving areas for agricultural uses. The fact that other land was zoned was theater uses also meant that there were reasonable alternative channels for communication. And the court found that the theater restrictions were narrowly tailored because the ordinance was limited to large venues and specifically allowed more private types of performative uses. As the court explained: “A resident in the Rural District can accordingly worship, watch films, play music, have family and friends visit and engage in other private behavior customarily conducted by homeowners without fear of running afoul of the theater restriction. The theater restriction only prevents a property owner in the same zoning district from setting up facilities for a cultural presentation, such as an outdoor music festival where hundreds of paid ticket holders enter onto his or her land to take part in it.”

Finally, the court rejected the defendant’s argument that the theater zoning was overbroad because it did not “facially prohibit[] a real and substantial amount of expression guarded by the First Amendment” or have a chilling effect. The defendant’s vagueness challenging was similarly unavailing because the language of the zoning ordinance contained sufficient standards and was sufficiently clear to be understood by persons of ordinary intelligence.

Town of Delaware v Leifer, 2018 WL 3058266, (NYAD 3d Dept. 6/21/18).


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