On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4250-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 20, 2010 - Decided: Before Judges Axelrad, R. B. Coleman and Lihotz.
In this declaratory judgment and prerogative writs action, defendant Township of Mt. Laurel (Township) appeals from a March 9, 2010 judgment of the Law Division compelling the Township to adopt an ordinance declaring plaintiff's property a "recognized amusement park" under the Amusement Games Licensing Law, N.J.S.A. 5:8-l00 to -130 (the Act) for licensure purposes, and an April l9, 2010 order denying reconsideration. We affirm as modified.
The facts and procedure of this case are not in dispute. On November 3, 1959, Township voters approved by referendum the public question authorizing the Act to become operative in the Township and thereby approving of the municipality's authority to grant licenses thereunder. See N.J.S.A. 5:8-116 (requiring approval by public referendum for the Act "authorizing the conducting, operating and playing of certain amusement games, whether of chance or skill, or both, where the prizes or awards to be given shall be of merchandise only" to become operative in the municipality); N.J.S.A. 5:8-115 (stating the action of the voters of the municipality "shall be deemed to be an approval of the authority to the municipality to grant licenses" under the Act, and such approval cannot be repealed except by means of another referendum).
The Act provides for a two-step, joint municipal and state procedure for licensing. See N.J.A.C. l3:3-2.1. Licensees must first file a state-prescribed application with the municipal clerk but municipal approval of a license does not become effective unless and until a state license certificate is issued by the Legalized Games of Chance Control Commission (Commission). Ibid.; N.J.S.A. l3:3-1.1.
Plaintiff owns and operates a twenty-five acre indoor and outdoor amusement facility on Route 38 known as "The Funplex." The Funplex is located in the Township's "I-Industrial" zone, which permits "recreation[al] structures and uses" under Section l54-56(C)(11) of the zoning code.*fn1 Outdoors there is a food concession, a miniature golf course, a sixteen-tee driving range, batting cages, a swimming pool, and eight amusement rides plus a "pad" for a replacement ride on a site that contained a ferris wheel. Indoors there is an arcade with about fifty or more video and other mechanical redemption games of chance which are not dependent upon result, a food concession, a sixteen-lane bowling alley, and six amusement rides.
All of the Funplex amusement rides are licensed by the New Jersey Department of Community Affairs under the Carnival Amusement Rides Act (CARSA), N.J.S.A. 5:3-31 to -59. CARSA requires State licensure for amusement rides located in an "amusement area or park." N.J.S.A. 5:3-32a.
In 2003, plaintiff filed a complaint against the Township in Superior Court seeking a declaratory judgment that CARSA preempted the Township's site plan jurisdiction in ride safety regulation. At that time, the Township's zoning code did not forbid outdoor amusement parks. On June 20, 2003, Judge Sweeney granted judgment in favor of plaintiff, reversing the Township's refusal to permit plaintiff's operation of a ferris wheel. In his findings, the judge found the Funplex facility was an amusement park under CARSA.*fn2
On December l5, 2003, the Township passed Ordinance 2003-20 prohibiting outdoor amusement facilities*fn3 anywhere within its borders. See Township Zoning Code § l54-77(K). By letter of December 4, 2007, the Township zoning officer recognized the Funplex site as a "pre-existing non-conforming" use.
In 2009, plaintiff desired to replace about fifty of its existing indoor games of chance, which it represented do not require State licensure under the Act, with skill-based redemption games, which require a State license under the Act.*fn4
Plaintiff represented that the new games would not exceed the number of games they were replacing and, in most cases, would require only a modification of software. Following lengthy discussions between plaintiff's and the Township's representatives, plaintiff's counsel requested the Township Council enact whatever ordinance it deemed necessary for plaintiff to obtain a municipal license for the new skill-based redemption games pursuant to N.J.A.C. l3:3-1.5.*fn5
When unsuccessful, plaintiff filed a formal application with the Township for the game licenses. The application was denied on December l8, 2009. Plaintiff then filed a complaint and order to show cause against the Township, alternatively seeking the following declaratory judgment and prerogative writs relief: (1) a declaration that the Act is operative and in effect in the Township; (2) an order compelling the Township to grant plaintiff a hearing pursuant to N.J.S.A. 5:8-104; (3) a declaration that plaintiff's property is a recognized amusement park within the meaning of the Act; and (4) an order compelling the Township to implement the Act and adopt an ordinance permitting skill-based redemption games at the Funplex.*fn6
Following oral argument, the trial court issued a written opinion on March 2, 2010, requiring the Township to adopt an ordinance declaring Funplex to be a "recognized amusement park" and stating that Funplex would then have the right to apply to the Township for a license to replace the games. A memorializing judgment was entered on March 9, 2010. On April l6, 20l0, the trial court denied the Township's motion ...