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Sez v. Township of Union

argued: April 3, 1991.

CHEZ SEZ III CORP., A CORPORATION OF THE STATE OF NEW JERSEY; JACK CHESNER, APPELLANTS
v.
TOWNSHIP OF UNION, A POLITICAL SUB-DIVISION OF THE STATE OF NEW JERSEY; SALVATORE J. MAURO, CONSTRUCTION OFFICIAL OF THE TOWNSHIP OF UNION, IN HIS OFFICIAL CAPACITY, APPELLEES



Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 90-3882.

Mansmann and Hutchinson, Circuit Judges, and O'Neill, District Judge.*fn*

Author: O'neill

Opinion OF THE COURT

O'NEILL, District Judge

Chez Sez III Corp. and its shareholder Jack Chesner appeal from an interlocutory order of the district court denying their motion for a preliminary injunction and administratively terminating their federal lawsuit pending the resolution of state law questions by the New Jersey state court. We find that abstention was proper and that appellants are unlikely to prevail on the merits of their suit. We will therefore affirm the decision of the district court.

I.

The facts of this case are not in dispute. Appellant Chez Sez III Corp. ("Chez Sez") operates an adult book and videotape store in Union Township, New Jersey. Chez Sez sells adult books and magazines, sundries, adult games and novelties, adult videotapes, and videotape players. In addition, it offers videotape player repair services and rentals of adult videotapes and portable video cameras. Until September 17, 1990, Chez Sez also provided private video presentations in eight individual coin-operated booths. A customer could enter one of the booths and, for each quarter inserted, view one 90-second segment of video film taken from Chez Sez's stock of videotapes. It is Union Township's termination of the use of these booths which gives rise to this dispute.

The property leased by Chez Sez for its retail store is located in a "Business B" zoning district as defined by the Union Township Land Development Ordinance ("Zoning Ordinance" or "Ordinance"). The Zoning Ordinance requires varying numbers of off-street parking spaces depending upon the use of the property. For retail uses, one off-street parking space for each 200 square feet of gross floor area must be provided. For theater uses, one space for every three seats is required. The configuration of the property on which Chez Sez is located makes it impossible to provide the requisite number of parking spaces for either of these uses. However, since the property's use as a retail establishment predates the effective date of the Zoning Ordinance provisions regarding off-street parking, the use of the property for retail sales and services has been allowed as a nonconforming use with respect to the off-street parking requirements.

Union Township has taken the position that the video viewing booths installed by Chez Sez constitute a new, non-retail use of the property. On August 1, 1990, the Union Township Board of Adjustment (the "Board") held a hearing pursuant to an application by Chez Sez and its shareholder Jack Chesner seeking an interpretation of the Zoning Ordinance. The Board found that the video booths did not constitute a retail use of the property. Since customers could come in, view a number of tapes and leave the premises without purchasing or renting any merchandise from the store, the Board found the video booths to be separate and distinct from the store's sales, rental and service functions. It concluded that the video booths were more in the nature of an amusement or movie theater use and thus were not permitted as a retail use under the Zoning Ordinance.

The Board then went on to find that the video booths did not constitute a theater use under the Ordinance either, since the provisions of the Zoning Ordinance dealing with theaters seemed to contemplate only large, auditorium-type uses rather than small private areas where individuals could observe videos in complete privacy. The Zoning Ordinance provides that any use not specifically permitted under the Ordinance is prohibited. The Board thus concluded that since video booths are not a valid retail use or theater use, the video booths operated by Chez Sez are prohibited in all of Union Township.

On September 17, 1990, following the decision of the Board, Union Township Construction Official Salvatore Mauro and several police officers entered the Chez Sez premises, evicted several patrons from the video booths, and erected a plywood wall at the entrance to the video viewing room to prevent its further use. The video booths and the portion of the store where they are located have not been used since that time.

II.

Chez Sez and Chesner filed a complaint in the District Court of New Jersey on September 28, 1990, seeking to have the court: (1) declare the Board's interpretation of the Zoning Ordinance unconstitutional; (2) enjoin the Township from enforcing the Ordinance (as interpreted by the Board) against them; and (3) require Construction Official Mauro to issue a certificate of occupancy allowing Chez Sez to operate video viewing booths on its current premises.

The district court found that a prohibition against all showing of video films in private booths in any part of the Township would be a violation of Chez Sez's First Amendment rights. However, the district court also concluded the Board's interpretation of the Zoning Ordinance lacked rationality. It predicted that a New Jersey court would most likely interpret the Zoning Ordinance to find that video booths are a "theater use" under the Ordinance. Although theaters are not permitted on this particular property, because it is not large enough to include the requisite number of off-street parking spaces for theater uses, the video booths would, if classified as a theater use, be permitted elsewhere in the Township. The district court thus concluded that Chez Sez's First Amendment claim would be eliminated if the booths were found to be a "theater use" under the Ordinance.

Since the district court found that the Zoning Ordinance was amenable to a construction by the state courts which would obviate the need for federal adjudication of a constitutional issue, it decided to abstain pursuant to the doctrine articulated in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), in order to allow the state court to rule in the first instance upon the proper interpretation of the Zoning Ordinance.

The district court also denied appellants' request for preliminary injunctive relief based on its prediction that the Zoning Ordinance would be interpreted to find that video booths were a "theater use" under the Ordinance. Since Chez Sez could constitutionally be prohibited from operating a "theater" in this particular location, the district court denied Chez Sez's request for injunctive relief and administratively terminated its lawsuit. Chez Sez and Chesner then filed suit in the Superior Court of New Jersey on October 26, 1990.

We have jurisdiction over the appeal from an order administratively terminating a lawsuit pending the resolution of state court proceedings. 28 U.S.C. ยง 1291; Biegenwald v. Fauver, 882 F.2d 748, 750 (3d Cir. 1989). In addition, we have jurisdiction over the appeal from an interlocutory ...


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