The question in this case is whether a town zoning ordinance violates the First Amendment by barring a “religious observance” by defendant that took the form of “an annual, multi-day, music festival attended by several hundred people.”
The Town of Delaware’s zoning ordinance prohibits any theater in a rural district, and defines a theater as a “building or room or outdoor facility for the presentation of plays, films, other dramatic performances, or music.” Code of Town of Delaware § 220-5. Defendant owns property in a rural district in the Town of Delaware, on which he convenes an annual gather to observe the Shabbat Nachamu, which defendant describes as “a Jewish observance of the first Sabbath following the observance of the destruction of the ancient temples in Israel.” According to defendant, the Sabbath observance (i.e., Friday at sundown to Saturday at sundown) does not involve any music, but there are several musical performances with singing and dancing before and after the Sabbath observance.
Claiming the observance constituted a non-permitted use, plaintiff the Town of Delaware sought and obtained an injunction in advance of defendant’s 2016 event. The Third Department affirmed, holding that defendant had not established that the zoning ordinance was unconstitutional. The court held that plaintiff had a substantial governmental interest in “preserving the character of the area,” and that the challenged ordinance provided alternate avenues for expression by allowing theaters “in more developed areas.” Moreover, the ordinance’s ban on “theaters” was narrowly tailored because it would allow a resident to engage in “private behavior customarily conducted by homeowners” and only would prevent a property owner 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.”
Defendant appealed as of right.
Return to the case page for Town of Delaware v. Leifer.