On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2014-07.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Chambers.
The central issue in this appeal concerns the constitutionality of a zoning ordinance adopted by the Township of Cinnaminson that restricts the location where commercial establishments that sell adult videos and novelty items can operate. The trial court rejected defendants' constitutional challenge, finding that the ordinance constituted a reasonable time, place, and manner restriction, was content neutral, and served a substantial governmental interest while allowing reasonable alternative avenues of communication.
We reverse. We hold that the trial court misapplied the holding in Hamilton Amusement Center v. Verniero, 156 N.J. 254 (1998), when it relied on a generalized notion of "common sense" to find that the ordinance served a substantial governmental interest. Although evidence of a substantial governmental interest need not be based on empirical studies, such evidence must nevertheless provide a rational, objective basis from which to ascertain the existence of a substantial governmental interest underpinning the legislation.
We also hold that under Township of Saddle Brook v. A.B. Family Center, 156 N.J. 587 (1999), the Township of Cinnaminson has the burden of showing the availability of alternative suitable sites where the restricted business may operate. Here, in determining that the ordinance allowed reasonable alternative avenues of communication, the trial court failed to consider the impact the municipal restrictions have on defendants' ability to operate the business, in the context of the restrictions imposed by N.J.S.A. 2C:34-7(a).
Defendants Robert and Deana Bertino and GHG, Inc. own and operate three retail stores in New Jersey that sell merchandise they describe as "risqué," consisting mostly of adult novelty items such as lingerie, greeting cards, games, and videos, intended for "offsite use." According to Robert Bertino, the store premises do not contain video booths or peep shows. Although they sell "how-to manuals" containing explicit sexual content in the form of advice or suggestions on how couples can enhance their intimacy, they do not sell adult magazines such as Hustler or Playboy.
On April 10, 2007, Robert Bertino contacted John Marshall, the Zoning Officer for the Township of Cinnaminson, expressing his interest in opening such a novelty store in the Township. In response to Marshall's request for a "written narrative," Bertino wrote a letter to Marshall that same day specifically identifying the location of the proposed store. The letter also included a schematic layout of the premises, and described the nature of the merchandise offered for sale.*fn2
The store, to be called "Fantasy Gifts," would be part of the Pep Boys Plaza, a strip mall located in an area designated by the Township as a Building Development (BD) Redevelopment Zone. The BD Zone is less than one square mile in scope, and within 1000 feet of a residential neighborhood, a recreational park, and a church. The mall accommodates a variety of small retail businesses including a dental office, a Subway sandwich shop, a bakery, a nail salon, a dry cleaners, and a thrift store called "Dollar Emporium."
After reviewing the letter, Marshall informed Bertino that the store would not comply with the applicable municipal zoning ordinance. Approximately forty-five days later, in late May or early June 2007, Marshall left a message on Bertino's answering machine stating that the store's location was likely improper under the local zoning ordinance and directed him to get an interpretation of the ordinance from the Zoning Board of Adjustment. Bertino denies receiving these calls from Marshall.
According to Marshall's deposition testimony, on Friday June 29, 2007, he received a complaint from a representative of the dental business operating in the mall, that Bertino was moving forward with the proposed adult novelty store. Marshall decided to investigate the complaint by visiting the site. Upon arriving at the scene, Marshall saw Mr. and Mrs. Bertino and their two small children inside the proposed store. When Marshall walked inside, he saw that "a number of items had been hung up on the walls, and there had been construction." This caused Marshall to emphasize again that no activities should take place to prepare for the opening of the store without first obtaining the required approvals from the municipal Zoning Board of Adjustment. Marshall's admonition went unheeded.
On July 18, 2007, defendants began operating the store under the name "Fantasy Gifts." According to the Township's records, when the store opened for business the Bertinos did not have: (1) site plan approval or a zoning permit; (2) the required construction permits under the Uniform Construction Code; and (3) the sprinkler system required under the Uniform Fire Code. In response, the Township filed an Order to Show Cause and obtained temporary injunctive relief shutting down defendants' business operations. That same day, Bertino filed an application for a zoning permit with Marshall's office.
On July 27, 2007, Marshall denied defendants' application for a zoning permit because the proposed use was not permitted under §411-8C(1) of the Township Code which prohibited "adult entertainment (bookstores, video stores, theaters, exotic dancing)" in the BD redevelopment zone. On July 30, 2007, defendants filed an Answer to the Township's Verified Complaint and counterclaim challenging the constitutionality of the ordinances relied upon by the Township. Defendants also moved to vacate the temporary restraints previously granted by the court.
On August 1, 2007, two days after the parties' joinder of issue, the Township introduced an amendment to §411-8C(1) of the Township Code. Two weeks later, the municipal governing body adopted the amendment on final reading. ...