Posted by: Patricia Salkin | November 28, 2019

NY Court of Appeals Affirms Injunction Prohibiting Outdoor Music Festival Under Town’s Rural Zoning

This post was authored by Amy Lavine, Esq.

 The New York Court of Appeals ruled in November that zoning regulations preventing a property owner from holding a music and camping festival did not restrict speech in violation of the First Amendment and were not void for vagueness. Town of Delaware v Leifer, 2019 NY Slip Op 08446 (N.Y. 11/21/19) (previously discussed here).

The defendant owned rural property in the Town of Delaware and wanted to host a three-day festival that he’d held twice before in previous years. Known as “The Camping Trip,” he advertised the event on his website as a celebration of Shabbat that would include live outdoor music and meals provided by food truck vendors and a Jewish nonprofit organization. Participants could either bring their own camping gear or pay for a tent spaces provided as part of the festival, and the event would also provide common facilities and services including off-site parking and shuttle service, a party tent, security, sanitary facilities, and medical services. The town filed a lawsuit to prevent the festival from going forward in 2016, claiming that the festival was a “theater” and was therefore prohibited in the rural district. The town ultimately withdrew its request for a preliminary injunction after reaching an agreement with the defendant that limited the 2016 festival to 400 attendees, required prior consultation with the health and fire departments, and made the town an additional insured on the festival’s insurance policy. The town reserved its right to pursue its general claim that the festival was a prohibited use of the property, however, and after the defendant began advertising for the 2017 season the town moved for summary judgment on its request for a permanent injunction. In response, the defendant argued that the zoning ordinance’s definition of a “theater” was unconstitutionally vague and that the prohibition of theaters in the rural district violated the First Amendment, both facially and as applied, by banning personal expressive conduct and residential performances.

The Court of Appeals began its analysis by recognizing the broad authority of local governments to regulate land uses “to meet the increasing encroachments of urbanization on the quality of life.” The Town of Delaware, it explained, had exercised its zoning powers with the stated purposes of “promoting agriculture,” “maintaining… [its] rural scenic character,” and “preventing… nuisances.” It accomplished these ends through the division of the town into seven zoning districts with distinct purposes and regulations, along with two additional overlay classifications. For each of the zoning districts, the ordinance provided for permitted uses, accessory uses, and uses allowed by special permit. Uses not falling into any of these categories were deemed prohibited, but variance and zoning amendment procedures were provided under the ordinance to allow relief in such cases.

With respect the rural district, the ordinance provided that the zoning designation was intended to be “conducive to the mutual existence of agricultural and low-density residential uses as well as certain unobtrusive commercial activities, ensuring both adequate amounts and choices of areas suitable for these respective uses.” Permitted uses included agriculture, agriculture services, bed-and-breakfasts, greenhouses, group homes, and detached one and two family dwellings, as well as customary and incidental accessory uses and various special uses such as campgrounds, country clubs, hotels, offices, and recreational uses. An outdoor music festival wasn’t listed among the permitted uses in the zone and wasn’t an accessory use that would be considered customary and incidental to the single-family residence located on the defendant’s property. The defendant had also never sought a special permit or variance to operate the festival, and as the court concluded, the festival was therefore “clearly prohibited” and the town was entitled to injunctive relief.

The court found that the defendant’s First Amendment argument was focused too narrowly on the zoning classification for “theaters,” as the restrictions on his property had to be reviewed in light of the zoning scheme for the rural district and in the context of town’s zoning law as a whole. When the zoning was considered in this broader context, it was evident that musical performances and other expressive land uses were permitted in other districts, and thus “neither the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional rights.” The court emphasized that the defendant wasn’t entitled to “an unfettered right to hold a three-day music festival on his property” simply because the event involved some expressive conduct. Rather, the town had authority to impose regulations in pursuit of its legitimate governmental goals, and in doing so it could place content-neutral restrictions on expressive conduct in the form of time, place, and manner regulations. As the court concluded: “By automatically allowing a limited and balanced suite of principal and accessory land uses that are closely related to the government’s purpose of preserving agricultural character…, but prohibiting a range of more obtrusive uses absent a special use permit or variance (including “theater[s]” with attendant noise and traffic), the provisions directly promote that government purpose, which would be less effectively achieved in their absence. Indeed, it was not unreasonable for the Town to conclude that an event like the Camping Trip is the sort of land use that, like a theater, would threaten the Rural District’s agricultural character.”

The court also rejected the defendant’s contention that the zoning restrictions were invalid on facial overbreadth grounds, explaining that “They do not affect personal displays of music, drama or film consistent with residential use, including singing at home or watching a film in one’s living room. The accessory use provisions permitting home occupations and uses customarily accessory to principal uses like dwellings encompass additional protected music, drama and film-related expression that one may conduct on a residential property. Simply put, the Zoning Law does not restrict the type of musical expression or entertainment typically associated with residential use of property, such as that attendant to a backyard barbeque, birthday party or similar gathering of family and friends (including observance of Shabbat).” The court acknowledged that there might be a small subcategory of theater uses that would be consistent with the rural district zoning, but the fact that the prohibition on theaters wasn’t perfectly tailored wasn’t enough to undermine its validity, especially when considered along with the fact that ample alternative modes of communication were permitted throughout all of the town’s zoning districts. “Notably,” the court explained, “the constitutional validity of an ordinance does not depend on whether the specific party challenging the regulation is actually able to access land for the desired purpose…. Inasmuch as the provisions simply seek to limit certain cultural presentations to the non-rural areas where they would have a less damaging impact, they also survive defendant’s overbreadth challenge.”

The court similarly dismissed the defendant’s facial and as-applied vagueness claims, explaining again that the zoning law clearly listed the uses that were allowable in the rural district and clearly set forth uses not specifically permitted were prohibited. In short, the zoning regulations were sufficient to put the defendant on notice that an outdoor music festival was not a permitted use of his property. As the court explained, “the legality of defendant’s event does not turn on whether it fits within the defined land use of a “theater.” In any event, the definition — in addition to the stated purposes of the Rural District and the list of land uses allowed only with a special use permit — was adequate to alert a person of ordinary intelligence that the myriad preparations supporting the presentation of a three-day music festival, including security, tents, food trucks, and sanitation plans, would require either a variance or a special use permit to proceed.” And to the extent that the defendant’s vagueness claim was premised on his belief that the theater restriction prohibited personal expressive displays, the court reiterated that this was an unreasonable interpretation of the zoning ordinance, which clearly allowed personal displays of expression as accessory uses.

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