non-conforming use

In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, New Jersey. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated section 99-15B of Mount Ephraim's zoning ordinance. That ordinance described the permitted uses in a commercial zone as offices and banks, taverns, restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities, automobile sales, retail stores such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys, repair shops for shoes, jewels, clothes and appliances, barbershops and beauty salons, cleaners and laundries, pet stores, and nurseries, plus motels. Section 99-4 of the Borough's code provided that all uses not expressly permitted in this chapter are prohibited. Appellants were found guilty in the Municipal Court and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones. The court held that those establishments were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that live nude dancing is protected by the First Amendment. The court was of the view that First Amendment guarantees are not involved. The case involves solely a zoning ordinance under which live entertainment is simply not a permitted use in any establishment, whether the entertainment is a nude dance or some other form of live presentation. The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam opinion essentially for the reasons given by the County Court. The Supreme Court of New Jersey denied further review. Appellants appealed to the United States Supreme Court. Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonobscene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution. The Supreme Court noted probable jurisdiction and set aside appellants' convictions.

In the city of Norwood, surrounded by Cincinnati, an industrial base eroded over 40 years, leading to municipal debt and physical changes in neighborhoods. Construction of Interstate 71 in the 1960s bisected residential areas in the appellants' neighborhood, creating dead-end streets, increasing traffic, noise, and light pollution, and converting some residential properties to commercial use. Appellants Carl and Joy Gamble had lived in the neighborhood for over 35 years, raising their children there, while Joseph P. Horney and Carol Gooch owned and operated rental properties in the area. A private developer, Rookwood Partners, Ltd., proposed redeveloping the area into more than 200 apartments or condominiums and over 500,000 square feet of office and retail space owned by Rookwood, along with two large public parking facilities owned by the city expected to generate nearly $2,000,000 in annual revenue. Norwood, operating with a deficit, entered a redevelopment contract in which Rookwood agreed to reimburse the city for project expenses including costs from any use of eminent domain. The city initially encouraged Rookwood to pursue voluntary purchases from owners. Rookwood secured acquisition agreements from a substantial majority of necessary property owners, but the appellants refused to sell. The city retained Kinzelman Kline Grossman using funds provided by Rookwood to prepare an urban-renewal study. The study concluded the neighborhood was a 'deteriorating area' under the Norwood Code, despite many homes being in fair to good condition with no tax delinquencies. After public hearings and planning commission approval, city council passed ordinances adopting the redevelopment plan and authorizing the mayor to appropriate the appellants' properties. In the consolidated appropriation actions, the trial court found the neighborhood was not a slum, blighted, or deteriorated area but was a deteriorating area. The court upheld the takings after determining no abuse of discretion in that finding and returned the cases for jury trials on compensation. After the juries rendered verdicts on property values, Norwood deposited the full amounts awarded, obtained titles to the properties, transferred them to Rookwood, and Rookwood began demolishing the houses. The trial court refused to enjoin Rookwood from using or damaging the property pending appeal. A divided court of appeals denied a stay, citing R.C. 163.19. The Supreme Court of Ohio accepted jurisdiction. It issued orders preventing the appellees from destroying or altering the properties pending review. It considered the appropriations along with the constitutionality of R.C. 163.19.

Relators owned a lot in the City of Ladue and applied to the Building Commissioner for a permit to construct a single-family residence of unusual design. They submitted plans and specifications that complied with all existing building and zoning regulations of the city. The Building Commissioner refused the permit on the ground that the Architectural Board had not approved the plans. The city had enacted Ordinance 131 as amended by Ordinance 281, which established an Architectural Board of three members, all of whom must be architects, to review applications affecting outward appearance. The ordinances recited a purpose to maintain minimum architectural standards of appearance and conformity with surrounding structures while avoiding unsightly, grotesque, and unsuitable structures detrimental to property values and community welfare. Relators filed a petition for a writ of mandamus in the trial court and moved for summary judgment. The Building Commissioner filed opposing affidavits from the mayor, a residential developer, and a planning consultant. The mayor's affidavit stated that Ladue was one of the finer suburban residential areas of metropolitan St. Louis, with homes on lots ranging from three-fourths of an acre to three or more acres and values considerably above average for cities of comparable size. The developer’s affidavit described the existing houses as virtually all two-story structures of conventional Colonial, French Provincial, or English design and stated that the proposed ultramodern residence would clash with every other house in the neighborhood. The planning consultant attached photographic exhibits of the surrounding homes, including the Colonial frame house to the west, the English Tudor brick home to the northeast, and the large Colonial homes immediately to the north, and also attached exhibits showing the proposed residence as a pyramid shape with a flat top and triangular windows or doors. The affidavits further stated that the proposed structure would have a substantial adverse effect on market values of other residential property in the area, where average values ranged from $60,000 to $85,000. The trial court granted the motion and issued a peremptory writ compelling issuance of the permit. The Supreme Court of Missouri reviewed the trial court’s judgment and reversed it.

In 1965 New York City enacted the Landmarks Preservation Law, which created an eleven-member Landmarks Preservation Commission and authorized it to designate buildings at least thirty years old that possess special historical or aesthetic interest. The law required owners of designated landmarks to obtain Commission approval before altering exterior architectural features and imposed an affirmative duty to keep those features in good repair. In August 1967 the Commission designated Grand Central Terminal a landmark and the city tax block it occupies a landmark site; the Board of Estimate confirmed the designation the following month. Penn Central Transportation Co. and its affiliates owned the Terminal, an eight-story Beaux-Arts structure completed in 1913 that served as the main station for the New York Central and Harlem lines. On January 22, 1968, Penn Central entered a fifty-year renewable lease with UGP Properties, Inc., under which UGP agreed to construct a multistory office building cantilevered above the Terminal and to pay Penn Central at least three million dollars annually after construction. Penn Central and UGP submitted two plans prepared by architect Marcel Breuer: Breuer I, a fifty-five-story tower resting on the Terminal roof, and Breuer II Revised, a fifty-three-story building that would have removed part of the 42d Street facade. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. Penn Central filed suit in New York Supreme Court, Trial Term, seeking a declaratory judgment, injunctive relief, and damages for a temporary taking. The trial court granted the injunctive and declaratory relief. The Appellate Division reversed, holding that Penn Central had failed to prove deprivation of all reasonable beneficial use. The New York Court of Appeals affirmed, concluding that the Terminal could still earn a reasonable return and that transferable development rights provided significant compensation. The Supreme Court noted probable jurisdiction.