The opinion
State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 83
Town of Delaware,
Respondent,
v.
Ian Leifer, &c.,
Appellant.
Russell A. Schindler, for appellant.
Kenneth C. Klein, for respondent.
DiFIORE, Chief Judge:
In this appeal, a landowner challenges the constitutionality of zoning laws that
preclude him from holding a three-day music and camping festival on his rural property in
the Town of Delaware. Because the challenged provisions do not unconstitutionally
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restrict the property owner’s First Amendment rights and are not void for vagueness, we
affirm the Appellate Division order affirming a Supreme Court judgment enjoining the
event.
Defendant Ian Leifer owns a 68-acre property containing a single-family home and
undeveloped land within the boundaries of plaintiff Town of Delaware. In 2016, he
planned to sponsor on the property a three-day event named “The Camping Trip” – which
he had hosted twice before in previous years – over the course of an August weekend. The
event was advertised online as a celebration of Shabbat, the Jewish Sabbath, during which
attendees would camp on the property and view live outdoor music performances before
and after Shabbat, which extends from sundown Friday to sundown Saturday. Attendees
could either bring their own camping gear or purchase a “Tent-Building Pass,” permitting
them to use a tent assembled by the event organizer. Meals would be provided at the site
through food truck vendors and a religious nonprofit organization would lead in Jewish
religious ceremonies. Indicative of the scale of the 2016 event, preparations included off-
site parking at a local school and rental of shuttle buses to transport attendees to the event
site, a party tent for inclement weather, security at both the parking lot and event,
$2,000,000 event insurance, 16 portable toilets, a 30-cubic-yard dumpster, EMTs on site
and an ambulance on standby.
Before the 2016 Camping Trip was scheduled to occur, the Town commenced this
action in Supreme Court seeking a temporary restraining order, preliminary injunction and
permanent injunction against the event, alleging it was prohibited by the Town’s Zoning
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Law (adopted as Local Law No. 2 of 1996 and codified as Chapter 220 of the Code of the
Town of Delaware). The Town asserted that the Camping Trip is a land use not permitted
in the Rural District where defendant’s property is located, noting that a “theater” – a land
use encompassing the musical performances component of the event – is permitted
elsewhere in the Town, but not in a Rural District. The complaint further alleged that the
Zoning Law permits those wishing to use property in a manner not specifically authorized
to apply for a zoning variance or amendment but that defendant had not done so for the
Camping Trip. Defendant opposed the Town’s requested relief arguing, in part, that he
had a right to hold the event on his property under the First Amendment.1
Days before the event was scheduled to begin, the parties resolved the Town’s
request for a preliminary injunction by stipulating that the 2016 Camping Trip could go
forward on certain conditions, including that it would not exceed 400 guests, that defendant
would provide the Town confirmation that he consulted with the health and fire
departments prior to the event, and that the Town would be named as an additional insured
on the event insurance policy. The Town reserved the right to pursue its claim that the
Zoning Law lawfully prohibits the event in the Rural District. The 2016 Camping Trip
ultimately involved music performances by 15 acts.
When defendant advertised his intent to hold the event again in 2017, the Town
moved for summary judgment on its claim for a permanent injunction. The Town argued
1
Defendant also contended that the Town’s requested relief would violate the federal
Religious Land Use and Institutionalized Persons Act of 2000 (42 USC § 2000cc et seq.),
an argument he later abandoned in Supreme Court.
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that uses not specifically authorized for a particular district under the Zoning Law are
prohibited and, here, the Camping Trip was not a legal land use because the proposed
activities did not constitute “a specified Principal Permitted Use, Special Use or Accessory
Use” within a Rural District. Defending against the First Amendment claim, the Town
asserted that the relevant Zoning Law provisions are content-neutral and satisfy the
“intermediate scrutiny” test applied to such regulations, explaining that the Camping Trip
would have secondary effects on the surrounding “rural and residential community”
antithetical to the Zoning Law’s stated purpose of preserving the agricultural character of
the Rural District.
Defendant opposed the Town’s motion and cross-moved for summary judgment
dismissing the complaint, seeking a declaration that the Zoning Law’s definition of a
“theater” was unconstitutional on multiple grounds, including that it is unconstitutionally
vague under the Due Process Clause. With respect to the First Amendment, he contended
that the restriction on theaters in the Rural District is unconstitutional, both as applied and
on a facial overbreadth theory, because it bans personal displays of music, drama and film
such as singing in one’s home.
Rejecting defendant’s constitutional arguments, Supreme Court granted the Town’s
motion, denied the cross motion and permanently enjoined defendant from advertising,
selling tickets to, or holding the Camping Trip on his property, clarifying that the injunction
would not prohibit him from using his property in ways consistent with the dwelling
located there. The Appellate Division affirmed, reasoning that the relevant Zoning Law
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provisions are content-neutral “time, place and manner” restrictions that are compatible
with the First Amendment (162 AD3d 1350, 1351 [3d Dept 2018]). The court explained
that the relevant provisions are narrowly tailored to effectuate the Town’s substantial
interest in “preserving the character of the area” because, while use of property as a
“theater” is prohibited, they expressly allow accessory uses in the Rural District that permit
residents to “worship, watch films, play music, have family and friends visit and engage in
other private behavior customarily conducted by homeowners,” which activity is not
encompassed by the excluded “theater” land use (id. at 1351-1352). Citing the fact that
the Zoning Law expressly permits theaters in other, more developed parts of the Town, the
court concluded that the provisions leave open ample alternative means for communication
(id.). The Appellate Division also rejected defendant’s First Amendment overbreadth
claim, reasoning that the relevant provisions do not “‘facially prohibit[] a real and
substantial amount of expression guarded by the First Amendment’ so as to have a chilling
effect,” and the vagueness claims, concluding that the provisions invite neither arbitrary
enforcement nor misunderstanding by those of ordinary intelligence (id. at 1352-1353,
quoting People v Marquan M., 24 NY3d 1, 8 [2014] [internal quotation marks and citation
omitted]). Defendant appealed to this Court as of right pursuant to CPLR 5601(b)(1).
We have “recogni[zed] the broad power of municipalities to implement land use
controls to meet the increasing encroachments of urbanization on the quality of life”
(Matter of Town of Islip v Caviglia, 73 NY2d 544, 550 [1989]). Zoning ordinances
constitute an exercise of the government’s police power to promote public health, safety
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and welfare and, as legislative enactments, are entitled to a strong presumption of
constitutionality (see id. at 550-551; see also Stringfellow’s of N.Y. v City of New York,
91 NY2d 382, 395-396 [1998]). Thus, a party challenging a zoning ordinance generally
carries a burden to prove its unconstitutionality beyond a reasonable doubt (McMinn v
Town of Oyster Bay, 66 NY2d 544, 548 [1985]; see Northern Westchester Professional
Park Assoc. v Town of Bedford, 60 NY2d 492, 500 [1983]).
The Town of Delaware Zoning Law’s general purpose is to “provide for the orderly
and desirable development and use of land” in accordance with Town authority and to
“promote the general welfare,” including by “promoting agriculture,” “[m]aintaining, to
the maximum degree possible while accepting growth, the rural scenic character of the
Town,” and “[p]reventing and eliminating other hazards and nuisances” (Zoning Law §
220-3). Under the Zoning Law, the Town is divided into seven distinct districts, each with
a stated purpose, as well as two types of special “overlay” districts imposing additional
regulations not relevant here. Land uses that are permitted in each district are specifically
listed. In addition to the “principal” permitted uses identified for a given district, the
Zoning Law also authorizes specific “accessory” uses, defined as those “incidental and
subordinate” to the principal use of a piece of land or a building “located on the same lot”
(Zoning Law § 220-5, “accessory use or structure”). Each zoning district contains a list of
“special uses” that, subject to approval by the Town Planning Board, may be “permitted in
a particular zoning district only on showing that such use in a specified location will
comply with all conditions and standards for the location or operation of such use as may
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be reasonably imposed according to the requirements of [the Zoning Law]” (id. § 220-5,
“special use”). The Zoning Law deems prohibited any proposed use that “is not
specifically permitted”; however, it also permits a landowner seeking to engage in a
prohibited use to submit a request for a zoning law amendment or variance (id. at § 220-
11).
The Town’s intent in adopting the Rural District classification was “to identify land
environments 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” (Zoning Law § 220, Schedule of
District Regulations, Attachment 1:4). To that end, principal permitted uses in Rural
District areas include agriculture, agriculture service establishments, bed-and-breakfast
establishments, fish hatcheries, greenhouses, group homes, two-family dwellings and
single-family detached dwellings (like defendant’s home, located on the subject property)
(id.). Among the accessory uses specifically permitted are “customary accessory uses.”
That term is not defined in the Zoning Law but, by applying the modifier “customary” to
the definition of “accessory use,” the phrase is reasonably interpreted to mean uses
customarily “incidental and subordinate” to a principal use and located on the same lot.
With respect to defendant’s land, which is improved by a residence, such permitted
customary accessory uses would include those incidental and subordinate uses commonly
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associated with land containing a single-family dwelling.2 A range of additional land uses
may be permitted as special uses in a Rural District upon application to and approval by
the Town Planning Board, including campgrounds, country clubs, hotels, office buildings
and recreational facilities.3
None of the principal or accessory uses specifically permitted in the Rural District
encompass defendant’s three-day outdoor music and camping festival. Such an event
cannot reasonably be characterized as a customary accessory use associated with
defendant’s single-family residence. To the degree any portion of the event – or the entire
event as planned – could be conducted as a special use or under a variance with permission
2
The Rural District also specifically permits as an accessory use “home occupations,”
defined as “[a]ny use customarily conducted entirely within a dwelling and carried on by
the inhabitants residing therein, providing that the use is clearly incidental and secondary
to the use of the dwelling for dwelling purposes; the exterior appearance of the structure or
premises is constructed and maintained as a residential dwelling; and no goods are publicly
displayed on the premises” (Zoning Law § 220-5, “home occupation”; see also id. § 220-
24[A][10] [providing examples of home occupations that can qualify as accessory uses,
including professional offices and artist or musician studios]).
3
In determining whether to permit a proposed special use – such as the use of property in
a Rural District as a campground – the Planning Board is required to assess whether the
“proposed use shall be in harmony with purposes, goals, objectives and standards of the
Town of Delaware Master Plan and [the Zoning Law]” and to consider a number of factors,
including its potential adverse effects on “adjacent property, the character of the
neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-
way, or other matters affecting the public health, safety and general welfare” (Zoning Law
§ 220-47). The Town may impose conditions to mitigate negative impacts, taking into
account considerations such as the adequacy of water supply and sewage disposal facilities,
fire lanes and the provision of fire protection facilities, “[t]he potential for the creation of
nuisances, such as . . . noise, vibration, odor and glare,” and the effect of the proposed
special use on “the value and future development of neighboring properties” (id. § 220-
47[E]).
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from the Planning Board, defendant never made any such request. Thus, unless the
provisions are unconstitutional, his proposed use is clearly prohibited in the Rural District
under the Town of Delaware Zoning Law and the Town was entitled to enjoin the event
(see Zoning Law § 220-11).
In evaluating the constitutionality of the relevant Town of Delaware Zoning Law
provisions, we review the Zoning Law’s entire scheme for the Rural District. Defendant’s
constitutional challenges, however, largely focus on a single land use defined in the Zoning
Law that is prohibited in the Rural District but permitted in other zoning districts: the
“theater” land use. This approach misses the mark because the Town did not rely
exclusively on the theater provision but cited the Zoning Law as a whole to show that
certain uses are prohibited in a Rural District but expressive aspects of the event, such as
the musical presentations, are permitted in other districts. Considering this context, neither
the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional
rights.
The Zoning Law defines a “theater” as a “building or room or outdoor facility for
the presentation of plays, films, other dramatic performances, or music” (Zoning Law §
220-5, “theater”). The phrase “outdoor facility” is not defined, but it necessarily refers to
something distinct from a “building” or “room,” which are also referenced in the provision.
A “facility” is “something that makes an . . . operation . . . easier” or “something . . . that
is built, installed, or established to serve a particular purpose” (Merriam-Webster Online
Dictionary, facility [https://www.merriam-webster.com/dictionary/facility]). The verb
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“present” includes “to bring (something, such as a play) before the public” and “to offer to
view” or “show” (Merriam-Webster Online Dictionary, present [https://www.merriam-
webster.com/dictionary/present]). A “theater” therefore encompasses the bringing of
cultural performances before the “public,” as well as a “showing” of these artforms more
generally, in structures (i.e., a building or room) or outdoors in circumstances that involve
supportive equipment or installations. Here, to the extent defendant sought to show live
music performances before festival attendees in an outdoor setting with a range of
supporting equipment and other installations, those performances qualify as music
“presentations” in outdoor “facilities” and, thus, as a “theater” under the Zoning Law.
Because aspects of his proposed land use fall within this category excluded in his Rural
District, defendant challenges what he dubs “the theater prohibition” as violating the First
Amendment as applied to him, as facially overbroad, and as unconstitutionally vague under
the Due Process Clause.
In essence, defendant’s First Amendment argument is that, because there are
expressive aspects to his event, its restriction in a Rural District is unconstitutional and he
has an unfettered right to hold a three-day music festival on his property free of regulation
by the Town. He is mistaken. “[T]he First Amendment does not guarantee the right to
employ every conceivable method of communication at all times and in all places”
(Members of City Council of Los Angeles v Taxpayers for Vincent, 466 US 789, 812
[1984]).
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The First Amendment’s protections encompass entertainment, including film and
live musical and dramatic performances, and are implicated here to the extent that the
Zoning Law restricts non-accessory use of land for a “theater,” thereby precluding
defendant from hosting a music festival on his property (see e.g. Ward v Rock Against
Racism, 491 US 781, 790 [1989], reh denied 492 US 937 [music performances]; Schacht
v United States, 398 US 58 [1970] [theater]; Joseph Burstyn, Inc. v Wilson, 343 US 495
[1952] [film]). That the Zoning Law restricts certain modes of expression, however, does
not necessarily render it unconstitutional. Because “various methods of speech, regardless
of their content, may frustrate legitimate governmental goals” (Consolidated Edison Co. of
N.Y. v Public Serv. Comm’n of N.Y., 447 US 530, 536 [1980]), the government may
regulate expression through reasonable “time, place, or manner” restrictions (Clark v
Community for Creative Non-Violence, 468 US 288, 293 [1984]).
Generally, “the First Amendment forbids the government to regulate speech in ways
that favor some viewpoints or ideas at the expense of others” (Taxpayers for Vincent, 466
US at 804). Indeed, when the government regulates the content of speech, “the usual
presumption of constitutionality afforded [legislative] enactments is reversed,” the
regulation is presumptively invalid and, under a “strict scrutiny” test, it is enforceable only
if it is the least restrictive means for serving a compelling government interest (see United
States v Playboy Entertainment Group, Inc., 529 US 803, 817, 813 [2000]). A content-
neutral time, place or manner restriction, however, is enforceable if it satisfies a more
lenient, intermediate scrutiny standard: it must be “narrowly tailored to serve a significant
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government interest[] and leave open ample alternative channels of communication”
(People v Barton, 8 NY3d 70, 76 [2006]; see also Clark, 468 US at 293).
Alternatively, defendant argues that even if the Camping Trip may be lawfully
prohibited in the Rural District, the theater restriction must be struck down on facial
overbreadth grounds. The overbreadth doctrine – which has been characterized as “strong
medicine” to be used “sparingly” – permits invalidation of a statute on First Amendment
grounds “because of a judicial prediction . . . that the statute’s very existence may cause
others not before the court to refrain from constitutionally protected speech or expression”
(Broadrick v Oklahoma, 413 US 601, 613, 612 [1973]). A statute is not facially overbroad
merely because we can “conceive of some impermissible applications” (Taxpayers for
Vincent, 466 US at 800; see Marquan M., 24 NY3d at 8). Rather, particularly where the
statute regulates expressive conduct and not only pure speech, it will not be invalidated on
this theory unless it is substantially overbroad (id. at 799-800, quoting Broadrick, 413 US
at 615) “because it facially ‘prohibits a real and substantial amount of’ expression guarded
by the First Amendment” (Marquan M., 24 NY3d at 8, quoting Barton, 8 NY3d at 75).
That is, courts must “assess the wording of the statute – without reference to the defendant’s
conduct – to decide whether a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep” (id. [internal quotation marks
and citations omitted]).
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In this case, to the extent the relevant Town of Delaware Zoning Law provisions
restrict expression, they are time, place and manner regulations that are content-neutral4
and thus subject to intermediate scrutiny under the First Amendment. They do not ban
protected forms of expression entirely – such as by precluding all theaters from the Town
– but rather restrict the location within the Town where that type of expression may occur.
Case law addressing the constitutionality of zoning ordinances has consistently held that
municipalities have a weighty interest in regulating the character and aesthetics of
neighborhoods in order to preserve quality of life (see e.g. People v On Sight Mobile
Opticians, 24 NY3d 1107, 1110 [2014], citing Taxpayers for Vincent, 466 US at 806;
Caviglia, 73 NY2d at 550, 553; Renton v Playtime Theatres, Inc., 475 US 41, 50 [1986],
reh denied 475 US 1132). Here as well, the Town’s plainly stated motivation for the
Zoning Law provisions governing land use in the Rural District – to preserve a balance of
agricultural and low-impact non-agricultural land uses – qualifies as a significant
government interest.
Thus, defendant’s as-applied challenge distills to whether the time, place and
manner regulations contained in the relevant Zoning Law provisions are sufficiently
4
Content-neutrality turns on the form of the statute, its impact or the government purpose
served by its enactment: a regulation is content-neutral if it is “justified without reference
to the content of the regulated speech” or, put another way, if it “serves purposes unrelated
to the content of expression . . . even if it has an incidental effect on some speakers or
messages but not others” (Barton, 8 NY3d at 77, quoting Ward, 491 US at 791). The Town
of Delaware Zoning Law provisions implicated here do not reference the content of any
expression incidentally impacted, including the content displayed at theaters restricted in
the Rural District.
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narrowly tailored, leaving open adequate alternative modes and channels for
communication. A time, place or manner regulation is narrowly tailored if it “promotes a
substantial government interest that would be achieved less effectively absent the
regulation” and is not “substantially broader than necessary to achieve [that] interest”
(Ward, 491 US at 799-800 [internal quotation marks and citation omitted]). To be
constitutional, the regulations need not be the least restrictive means of advancing the
government goal, as the enforceability of such enactments “does not turn on a judge’s
agreement with the responsible decisionmaker concerning the most appropriate method for
promoting significant government interests” (id. at 800, quoting United States v Albertini,
472 US 675, 689 [1985]). The Zoning Law provisions at issue here satisfy this
requirement. 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 (e.g., agriculture, agriculture services establishments, single- and
two-family dwellings), 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 challenged provisions are not substantially broader than necessary to further the
government goal. They do not affect personal displays of music, drama or film consistent
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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
only music, drama and film presentations excluded without a variance are those that do not
qualify under one of these expressly permitted land uses, including those in the defined
category of “theater[s]” requiring the use of a structure or other outdoor supportive
facilities. To the degree there exists a subcategory of excluded theaters that would not
undermine the government’s goal of preserving agricultural character – for example,
presentations too large to qualify as a customary accessory use to a dwelling but
nevertheless relatively quiet, small-scale and involving minimal traffic – that demonstrates
at most that the relevant provisions may not be the narrowest means of advancing the
Town’s aims, which would not invalidate them.
There also exist ample alternative modes and channels for communication. Even
focusing only on the theater provision, the Zoning Law expressly permits theaters in two
of the seven non-overlay districts (see generally Renton, 475 US at 53-54 [concluding that
over five percent of city land available for a relevant use was adequate to meet this
requirement]). Notably, the constitutional validity of an ordinance does not depend on
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whether the specific party challenging the regulation is actually able to access land for the
desired purpose. Moreover, as noted, the Zoning Law does not prohibit expression
consistent with permitted land uses, which include a range of special uses – for example, a
“campground” – that can be proposed to the Planning Board. In addition, the Zoning Law
allows for a person to seek an amendment or variance to the restrictions for their district
(Zoning Law § 220-11), which defendant failed to do. Thus, the zoning provisions that
precluded defendant’s Camping Trip festival satisfy the intermediate scrutiny test for
content-neutral time, place and manner restrictions. 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.5
5
Defendant’s reliance on Schad v Mount Ephraim (452 US 61 [1981]), in which the
Supreme Court invalidated a zoning ordinance under the First Amendment, is misplaced.
The zoning ordinance on which the municipality relied in that case to fine an adult
bookstore that offered live nude dancing banned all “live entertainment” in the
municipality, rather than restricting it to certain districts. Moreover, Schad represents an
early step in the Supreme Court’s development of First Amendment jurisprudence specific
to regulation of adult businesses. That case law subsequently culminated in the
development of a specialized burden-shifting framework for determining whether an
ordinance regulating adult businesses – which may be treated as content-neutral if found
to have been predominantly aimed at ameliorating negative secondary effects rather than
restricting speech based on content – is actually “designed to serve [that] substantial
government interest” (Los Angeles v Alameda Books, Inc., 535 US 425, 440-441 [2002]
[plurality]). The concerns animating the analysis of adult use ordinances, which are not
intuitively content-neutral (Alameda Books, 535 US at 448 [Kennedy, J., concurring]; For
the People Theatres of N.Y., Inc. v City of New York, 29 NY3d 340, 349 n 1 [2017], cert
denied sub nom. JGJ Merch. Corp. v City of New York, N.Y., 138 S Ct 1000 [2018], and
cert denied sub nom. Ten’s Cabaret, Inc. v City of New York, N.Y., 138 S Ct 994 [2018]),
are not present here.
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Defendant’s facial and as-applied void for vagueness challenges likewise fail. “A
statute is unconstitutionally vague if it fails to provide a person of ordinary intelligence
with a reasonable opportunity to know what is prohibited, and it is written in a manner that
permits or encourages arbitrary or discriminatory enforcement” (People v Foley, 94 NY2d
668, 681 [2000], cert denied 531 US 875 [2000], citing Grayned v City of Rockford, 408
US 104, 108 [1972]; see People v Stuart, 100 NY2d 412, 421 [2003] [describing the
difference between facial and as-applied vagueness claims]). Statutory language that is
imprecise but nevertheless provides sufficiently specific warning when “measured by
common understanding” will survive constitutional scrutiny (Foley, 94 NY2d at 681,
quoting People v Shack, 86 NY2d 529, 538 [1995]).
The plain text of the challenged Zoning Law provisions afforded sufficient notice
that a music festival such as the Camping Trip was prohibited in the Rural District absent
a permit, variance or amendment from the Planning Board and, thus, the provisions are not
void for vagueness as applied to defendant. The Zoning Law clearly lists the uses that are
authorized in the Rural District without such permission and, measured by the standard of
common understanding, was sufficient to alert landowners that those uses did not
encompass a three-day outdoor music and camping festival. While defendant focuses on
the term “outdoor facility” in the theater definition, claiming this language did not alert
him that his planned music performances on unimproved land were prohibited, this
argument ignores the structure of the Zoning Law, which states that any use not specifically
permitted is prohibited (Zoning Law § 220-11). As we have explained, the legality of
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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. Defendant’s facial vagueness
challenge is primarily dependent on his assertion that the theater restriction criminalizes
personal displays of music, film or other artistic expression by or for occupants or friends
at one’s home – a proposition that, as discussed, is negated by the plain text of the Zoning
Law, which permits uses consistent with or customarily accessory to a dwelling.
Defendant’s constitutional challenges are therefore unavailing.
Finally, we reject defendant’s contention that Supreme Court imposed an overly
expansive injunction by enjoining the entire Camping Trip event when certain components
of that festival fall outside the definition of a “theater.” Defendant’s argument again
focuses too narrowly on the theater provision. The three-day event that, as advertised,
would have included combined use of the property as an outdoor music performance venue
and campground does not fall within any of the land uses expressly authorized in the Rural
District without a permit, variance or amendment from the Town and, thus, Supreme Court
did not err in enjoining it as a whole. Supreme Court expressly excluded from the
injunction “uses consistent with the single family residence situate[d] on the Premises,”
mirroring the Zoning Law’s allowance of that principal use of defendant’s property and
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any customary accessory uses. Moreover, if defendant desires to use his property to
conduct activities qualifying as a special use in the Rural District, the injunction does not
prevent him from applying to the Planning Board for such permission as authorized by the
Zoning Law, and/or seeking a variance or amendment. We have considered defendant’s
remaining arguments to the extent preserved and they do not warrant a different outcome.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Chief Judge DiFiore. Judges Rivera, Stein, Fahey,
Garcia, Wilson and Feinman concur.
Decided November 21, 2019
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