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Township of Cinnaminson v. Bertino

405 N.J. Super. 521, 966 A.2d 14 (App. Div. 2009)

ZONING; ADULT STORES — It is not proper for a court to apply its own “common sense” in concluding that a zoning ordinance, such as one that prohibits adult stores, serves a substantial governmental interest.

A business owner contacted a municipal zoning officer and expressed interest in opening an adult novelty store within the municipality. The store would be located in a strip mall located in the Building Development Redevelopment Zone (BDR Zone). The business owner did not file an application for a zoning permit, construction permit or site plan approval, but nonetheless commenced operations. The municipality obtained a restraining order prohibiting the owner from operating the business without obtaining the necessary approvals. That same day, the owner applied for a zoning permit. The zoning officer denied the application based on the municipality’s zoning ordinance which prohibited adult entertainment (bookstores, video stores, theaters, exotic dancing) in the BDR Zone. Several weeks later, the municipality amended its zoning ordinance to expand its list of prohibited adult entertainment uses to include adult novelty stores. The owner challenged the zoning permit denial and the constitutionality of the zoning ordinance. The lower court denied the owner’s motion to lift the restraining order, but remanded the matter to the municipal zoning board of adjustment to conduct a hearing on the owner’s appeal of the zoning permit denial.

At the zoning board hearing, the zoning officer was the only one to testify as to whether the proposed business qualified as an adult novelty store. The zoning officer concluded that the business was prohibited under both the old and revised zoning ordinance. The zoning board unanimously affirmed the zoning officer’s decision. The matter returned to the lower court where the municipality argued that the zoning ordinance advanced a legitimate governmental purpose by preserving the integrity and the character of the BDR Zone. The municipality did not substantiate its position that having an adult novelty store would have negative effects on the surrounding community. The lower court, in upholding the zoning ordinance, found that it was a valid time, place, and manner regulation because it did not prohibit sexually oriented businesses in all of the municipality, nor did it bar them in all Business Development zones. The lower court found that the ordinance was narrowly tailored to apply to BDR Zones and not all Business Development zones. The lower court also found that the ordinance was not adopted in response to the content of the items sold at the adult novelty store, but at the secondary negative impact of the store on the surrounding community. The lower court also concluded that the municipality did not have to provide empirical data to prove that the adult novelty store negatively impacted the surrounding areas because it was common sense. Lastly, the lower court found that the zoning ordinance served a substantial governmental purpose by promoting the health, safety, welfare, and moral character of the municipality.

The owner appealed, claiming that the municipality was required to provide empirical evidence that an adult novelty store would have a secondary negative impact on the community. The Appellate Division agreed and reversed. The Court found that the lower court incorrectly relied on “common sense” in concluding that the ordinance served a substantial governmental interest. The Court noted that there may be significant differences between various adult-theme businesses and they may have not had the same effects on the surrounding community. Therefore, it was inappropriate to broadly state that all adult businesses have the same deleterious effects on the community. The municipality could have met its burden by providing testimony from brokers to demonstrate the effects of adult novelty stores on home values. It could have provided testimony from civic associations to demonstrate the effect on other businesses. The municipality could have also provided the testimony of law enforcement officials to demonstrate the rise in antisocial behavior as a result of having adult novelty stores in the area. That testimony would provide a rational and objective basis for determining if there was a substantial governmental interest. “Common sense” alone is insufficient.

The Court then determined whether the legislation, which restricted speech, was constitutional. If legislation restricts constitutionally protected speech, it must leave available alternatives. In this case, the lower court found that there were alternative sites available without explaining or identifying the alternatives. The Court concluded that the municipality had the burden of showing the availability of alternative sites for the adult novelty store. Then, in order for a court to find the legislation constitutional, it must determine if there are enough alternative sites available in the market area. For those reasons, the Court remanded the matter for further proceedings.

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