03-09-09 Township of Cinnaminson and Edward M. Schaeffer,
Construction Official for the Township of Cinnaminson
v. Robert and Deana Bertino and FHG, INC. t/a Fantasy
Gifts and Rheta F. Cheskin and Bruce S. Cheskin
A-2074-07T1
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. The
Township must make this determination in the context of the
restrictions imposed by N.J.S.A. 2C:34-7(a).
