“Common Sense” Is Not Enough for Municipalities to Restrict the Location of Adult Book and Novelty Stores
The Appellate Division decided the case of Township of Cinnaminson v. Bertino today and held that a court’s reliance on “common sense” as the sole evidence that a township ordinance restricting the location of an adult book and novelty store was not enough to establish that the ordinance was constitutional. The Court further held that “although evidence of a substantial governmental interest need not be based on empirical studies, such evidence must nonetheless provide a rational, objective basis from which to ascertain the existence of a substantial governmental interest underpinning the legislation.” A New Jersey zoning and land use attorney can be helpful in determining whether zoning restrictions imposed by a municipality may violate the US Constitution, the New Jersey State Constitution, or any other applicable laws.
In this case, the Bertinos wanted to open a retail store in Cinnaminson, NJ that would sell “risqué” adult books and novelty items, such as lingerie, greeting cards, games, videos, and explicit “how to manuals.” However, the store would not contain video booths or peep shows, and would not carry adult magazines such as Hustler or Playboy. The Bertinos wanted to locate the store within a redevelopment zone in Cinnaminson. After writing to the Township about their intent to open the store, the Township responded that the store would violate a local zoning ordinance that prohibited adult book stores in that redevelopment zone.
The Bertinos challenged the constitutionality of the ordinance in a lawsuit filed in the Superior Court. The Bertinos argued that the ordinance violated the Free Speech Clause of the First Amendment of the United States Constitution. Our courts have held that governmental regulations that are not based on the content of the speech are constitutional only if they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. By contrast, governmental regulations that are based on the content of the speech or constitutional only if they are narrowly tailored to promote a compelling governmental interest. However, our courts have also held that government regulations that limit the location of businesses that sell sexually explicit materials should be analyzed under the same standard as content-neutral regulations of speech because these regulations are designed to combat the undesirable secondary effects of such businesses (e.g., promoting juvenile delinquency, contributing to an overall increase in crime, creating an environment that leads to the general deterioration of neighborhoods, and lowering property values).
In defending the ordinance, the Township of Cinnaminson argued that the ordinance advanced a legitimate governmental interest by preserving the integrity and character of the redevelopment zone. However, the Township did not present any evidence to substantiate its position. The Superior Court judge who heard the case agreed with the Township. The Judge decided that the Township did not need to substantiate its position that the town ordinance was directed towards the negative secondary effects of adult bookstores because the negative secondary effects in this case were “obvious.” The judge also found that the ordinance served a substantial governmental interest, in spite of the fact that the Township presented no evidence on this issue, because it was “common sense” that the adult bookstore would have a negative impact on the morals of the community.
The Appellate Division reversed the lower court and held that some evidence is necessary to substantiate that the ordinance was designed to serve a governmental interest. The Appellate Division noted that the Township could meet its burden of proof in several ways: it could present testimony from realtors that the adult bookstore would have a negative impact on property values, it could present information gathered from chambers of commerce or other civic organizations about the potential negative effects these businesses have on similar communities, or it could present accounts from law enforcement officers that, based on their experience and training, these types of establishments draw crime to the area.
Ultimately, the Court concluded that because these types of businesses are unpopular, any court that reviews ordinances designed to prohibit such businesses must be vigilant and guard against the use of zoning power that serves only to pander to mere prejudice. It may be helpful for business owners to contact a New Jersey zoning and land use lawyer to analyze any alleged violations of municipal ordinances.
