New York Association Of Adult Entertainment Establishments New York Association of Adult Entertainment Establishments (NYAEE) causes to act in a legal suit against the Department of City Planning. Background and Facts.
In this dispute, the Adult Establishment has been restricted in the city of New York, Manhattan, Queens, Brooklyn, Bronx, and Staten Island: Adult establishments, new and old are barred from certain districts that are zoned for manufacturing and commercial use but also permit residential development. Adult establishments must locate 500 feet from schools, houses of worship, day care centers. No more than one adult establishment in a zoning area. Adult establishment can have no more than 10,000 square feet of floor area and cellar space. Adult establishments must conform or terminate within a year.
These regulations are set forth by the New York Department of City Planning for the following reasons: decrease property values of surrounding business and residents, increase in crime, substantial loss of business because of loss in investments and decline in economic and pedestrian activities. The controversies in the dispute involving the interests of the city versus the interests of the Adult Entertainment enterprises are three-fold. First, in the process of zoning property boundaries, the government must avoid a regulating factor that allows a commercial business to have no other competition. A monopoly is an illegal economic entity in our free-market system. If only one adult establishment can be present in a zoning area, it is then a restriction of the competitive market where there can not be a choice for the consumer.
This is the weakest of the three arguments and it will just be mentioned but not pursued. Second, it seems that the realm in which the city defines the Adult Establishment as a commercial enterprise, it seems that a zoning ordinance can only be set as commercials or non-commercial. A re-zoning of an area should not discriminate by type of business but only by the type of area the city cares to allow. In other words, zoning is a planning system to support either industrial, commercial, or residential areas. If an area is commercial, it should limit the area to certain enterprise. If a city decides that an enterprise in causing a disruption within the area it exists, then it should not allow the product to be sold in that area at all. The decision held in the National Paint and Coatings Association. Chicago case is an example where the city council outlaws spray paint and big markers in the city of Chicago. The court found that there was no mistreatment and there is no fundamental right to sell paint therefore the license to sell paint can be denied by the city.
The selling of adult entertainment can be denied completely because there is no fundament right to sell adult entertainment however, there is a fundamental right to own property, acquire property, and use the property according to the zone be it a commercial area for enterprise purposes. The third issue is that in regulating a adult entertainment, the city has taken the private property of the owners for a public good. The government has taken the action to intrude upon the ownership of property and has force that property to no longer be of use to that owner. This constitutes a takings by the government and the owners should be compensated for its losses. This is the strongest argument for the action in suit to resolve the dispute on behalf of the NYAEE. Holding. It is important to include some relevant case law that invokes the issue of a takings in order support the argument of a takings in this instance. In the Penn Central Transportation.
New York City 1978, the court’s deliberation found that the action by the city did not constitute a takings. Justice Brennan found that the economic impact, the physical invasion by the government, the significant impact of the property in the realm of freedom and ability, and the regulation was designed to promote the good of the public, were the circumstance to rule in favor of the city, that these aspects were address in the correct manner. Using Brennan’s scale in the Adult Entertainment dispute, the government is causing a negative economic impact on the adult entertainment enterprise by revoking its ability to sell in a profitable area. The government is limiting the realm of freedom and ability of the property owner by extraditing that owner from the property for relocation outside the zoned areas. The only support the city has for justification under Justice Brennan’s four items of a takings is the that the intention of the city is for the public interest, so it claims.
In a more specific analysis of the circumstances of the regulations by the Department of City Planning, the second regulation is a standard of a takings by the Dolan v. City of Tigard decision. Justice Rehnquist’s opinion follows a determination of rough proportionality within the Takings Clause of the Fifth Amendment principles. The second regulation involves a boundary to which adult establishments must locate 500 feet form schools, houses of worship, and day care centers. The question relevant in this matter is how is the number 500 feet determined. In the Rehnquist precedent of rough proportionality, he specifically states that the determination of a property boundary regulation is not mathematical.
He finds that the regulating factor must be a relationship between what the property owner is giving up to what the scope-extent of the plan by the city involves. The city must show a connection between what the interest of the adult entertainment sales are as the interest of the commercial zoning bordering the property of church and schools. This is not clear by the second regulation by the city in legal terms set by the Supreme Court in the matter of a takings occurrence. Reasoning. Within the course of owning property and having certain rights in property ownership, the interests of the public good have been superior to the individual property owner.
In a democratic society, it is accepted that the public good outweighs the interest of the individual. There are however, protections by the law in the Constitution that limit the power and action by the government in the name of the public good without compensating the individual affected by the policing of activity on a property. When the government interferes the freedom of ownership and enterprise on a property by changing the zoning and subtracts the control of private property by the owner, it invokes eminent domain. Eminent domain is the authority by the government to take private property for public good. Under the Fourteenth Amendment, the government within the states cannot take property without just compensation. When the interests of the Department of City Planning are integrated into the simplicities of the property rights vested in the Constitution, the department has the power to set regulations on the public’s behalf, but in exchange, must compensate the individual for his loss of control or total loss of the property ownership.
Furthermore, as these matter has been litigated in the past, and standards have been set to determine specifics in whether a takings occurs in the aquistion of property or rights of that property by the government, the court’s determining factors all favor just compensation for an individual harmed economically by regulation. Conclusion. It would be to the advantage of the client of NYAEE to file suit against the Department of City Planning in event that the Adult Entertainment Regulations by the Department has caused a takings to occur. Under the Takings Clause the government cannot take property without just compensation.
It is evident that in the regulation by the Department of City Planning it has intended to determine that 177 adult establishments must relocate or close. By this intention, the city is taking the property from the owners and zoning it for the public good. The NYAEE should file suit to be justly compensated under the Taking Clause. It is not of this firm’s duty to defend the content to which the adult entertainment enterprise profits from, it is the firm’s duty to apply to law set by the Constitution to protect the property rights of all owners of private property. The impact of the adult entertainment establishment may well have effected the decrease in property values of surrounding business and residents.
This would involve further study before a direct connection could be established and give reason for a action by the city in the form of regulation. It is less clear whether the adult entertainment commercial business effects an increase in crime and a decline in economic and pedestrian activities. It would seem that if the adult entertainment businesses were profiting by customer demand and sales were up, the economic status of the area would be in positive territory. Also, if customers are buying into the products of the adult entertainment industry, as well they must, to have such an enormous variety of successful departments areas of concern, the customers would have to walk into the shops unless they are all drive-thru buildings.
Therefore, the must be some type of pedestrian activity. It is of the recommendation of this lawyer that the action of the Department of City Planning in regulating the properties of the NYAEE owners has violated the vested rights of private property ownership. The NYAEE property owners affected by the regulations should file a law suit against the city for the compensation of the property acquired by the government regulations.
