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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