Agenda - Planning Commission - 06/04/2009

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i: Ii \i Ii ; II n.--' (- ) . '----' I I I I I I I II I I '1 Ii' (), I! '__.___' ! I i I I /i Ii Ii rl Ii I' II l. 'I II I. I I I lJ Ii Ii' Zoning Bulletin May 10, 2009 I Volume 3 I No.9 The trial court issued summary judgment in favor of the township. It found that the Ordinance was a "reasonable time, place, and manner re- striction, was content :neutral, and served a substantial governmental in- terest while allowing reasonable alternative avenues of communication." The Bertmos appealed. They argued that the trial court erred in find- ing the Ordinance was constitutional. DECISION: Reversed and remanded. The Superior Court of New Jersey, Appellate Division first determined that the Ordinance was a content-neutral, time, place, and manner regu- lation. This was because the Ordinance: was aimed not at the content of the items. in the store, but rather at the secondary effects that the adult stores would have on the surrounding community; and did not ban all adult entertainment, but only prohibited such establishments within specified zones. The court explained that as a content-neutral, time, place, and man- ner regulation, the Ordinance would be upheld as constitutional if it was designed to: (1) serve a substantial governmental interest; and (2) did riot unr.easonablylimit alternative avenues of communication. Whether the Ordinance served a substantial governmental interest depended on whether the operation of an adult entertainment establish- ment would have a secondary negative effect on the community. In find- ing the Ordinance served a substantial governmental interest, the trial court had relied on "common sense," concluding that: such "an adult novelty store... [would] have an impact on the morals, maintenance of property values and character of the surrounding neighborhood... ." The Bertinos argued that this "common sense" reliance was nbt enough. The court agreed with the Bertinos that a "generalized invocation of 'common sense' was not sufficient to meet the burden of establishing that the Ordi- nance promoted a substantial governmental interest." The court said this was because "not all businesses with an adult theme necessarily" could be characterized as causing negative side effects on the community. For example, noted the court, it could be argued that adult novelty stores ca- tered to a different consumer than did adult book stores or movie theaters showing filius with strong sexual content. The court said that the adverse secondarY effects would vary, depending on the particular business activ- ity engaged in by the sexually oriented business. The court further agreed with the Bertinos that the township had to prove its claim that the store would have a secondary negative effect on the surrounding community through: competent evidence that established a link between the store and any alleged harmful effect to the surrounding community. . The court also found that the trial court had erred in concluding that the Ordinance was consti_tutional since the Bertinos were left with a suf- ficient number of alternative suitable sites where their business could op- erate. The appellate court said that the trial court could not reach such a . @ 2009 Thomson Reuters 5 J 75