Reargued En Banc September 19, 1996.
Argued Dec. 8, 1995
Before: STAPLETON, SAROKIN,
Reargued En Banc Sept. 19, 1996
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and ROSENN, Circuit Judges.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellants planned to open an adult book and video store, "X-Tasy", in the Borough of Keyport, New Jersey. Over a ten month period, they sought the necessary zoning and construction permits. Their applications were ultimately denied on the basis of an
I. The Factual Background
In early 1992, George Phillips and Philip Vitale spotted an abandoned one-story building on Route 36 in the Borough of Keyport, a 1.5-square-mile community in Monmouth County, New Jersey. After visiting the site, they became interested in the property as a potential location for an adult video and book store. After checking zoning and land use regulations, they met with the owner to negotiate a lease of the property. The parties agreed that, if Phillips and Vitale could obtain a zoning permit for the intended use of the property, they would execute a lease.
Phillips contacted Vic Rhodes, construction official and zoning officer of the Borough, and asked him to perform an unofficial inspection of the property to advise plaintiffs as to what they would need in order to obtain a certificate of occupancy. He did so on February 18th, and informed Phillips and Vitale that they would have to comply with various requirements regarding designation of parking places. A week later, Phillips and Vitale submitted to Rhodes an application for a zoning permit to "operate a retail book store w/ novelties — amusements & videos." App. at 29. The address listed on the application was "# 65 Hwy. 36." Id. The line below the address specified, "Block 103, Lot 59." Id. Attached to the application was a survey of "Lots 59 & 61, Block 103 of the Official Tax Map of the Borough of Keyport." App. at 30.
The property that Phillips and Vitale eventually leased — and that Rhodes inspected — is actually located on Lot 61. While Lots 59 and 61 are contiguous, they are situated in different zoning areas. Lot 59 is located in a district zoned as "residential." Lot 61 is situated in a "highway commercial" district. The survey clearly indicated which land was Lot 59 and which was Lot 61.
A few days later, Rhodes telephoned Vitale and requested that he clarify the nature of plaintiffs' intended use of the property. Vitale complied by describing the intended use in writing as "(1) video sales & rentals"; "(2) amusements — adult video arcade"; and "(3) no one under 21 years of age admitted." App. at 31. There was at that time no zoning restriction specifically pertaining to commercial establishments selling, renting or exhibiting sexually explicit material. On March 9th, Rhodes issued to plaintiffs a zoning permit for Block 103, Lot 59.
On March 13th, Phillips and Vitale entered into a five-year lease for "[t]hat portion of the premises known as Block 103, Lot 59 also known as 65 Highway 36." App. at 32. The lease specified that the premises were to be used for "video sales and rental, amusements and adult video arcade" and as "a retail adult book store with novelties and gifts," and that "[n]o one under 21 years of age [would be] admitted to the premises." The lessees agreed to "obtain any and all necessary government permits and approvals to conduct the business as deemed necessary by such governmental entities."
On March 18th, Rhodes issued plaintiffs three construction permits under their zoning permit. Plaintiffs allege that they thereafter expended substantial sums of money to repair and renovate the property for their intended use.
By this time, however, word of the plans for an adult book store had spread around the Borough and had generated significant opposition. Charles Barreca, who lives directly behind the property at issue, stated at a Borough Council meeting on March 23rd that he would do all he could to stop plaintiffs from opening their proposed store and that he had begun to circulate a petition in the area to that end. At the same meeting, the Borough attorney explained that the Zoning Board of Adjustment could review and overturn Rhodes's decision to issue the zoning permit. Other local leaders, including the
On April 14th, Phillips and Vitale filed a second application for a zoning permit, this time with the proper address of the location. The application stated that their intention was "to operate a retail bookstore w/ novelties, amusements & videos, adult video arcade, video sales & rentals (no one under 21 years of age admitted)." App. at 42.
On April 20th, the Board of Adjustment held its hearing on the first application. Barreca attended, along with another resident, to urge reversal. Phillips and Vitale were represented by counsel, who admitted that the permit had been issued for Block 103, Lot 59, that this location was in a residential district, and that his clients' intended use was not permitted in such a district. Barreca and his supporter submitted eight photographs purporting to show that the present condition of the plaintiffs' proposed building and site differed from the conditions represented on the old survey attached to their application for the zoning permit. On the basis of this evidence, the Board granted the appeal and reversed Rhodes's decision to issue the initial zoning permit.
Eight days later, Rhodes advised plaintiffs that their second application for a zoning permit had been denied due to (1) inaccuracies in the survey they had submitted with the application, (2) the need to replace a fence pursuant to Ordinance 25:1-14.6.B, and (3) reports from a previous tenant that the sewer line servicing the building did not operate. Phillips and Vitale undertook to correct the problems and, on June 16th, submitted a third application for a zoning permit, together with a revised survey and receipts for sewer line repairs.
A week later, while the plaintiffs' third application was pending, members of the Borough Council introduced at a Council meeting two ordinances targeted at establishments involved in so-called adult entertainment. Ordinance No. 30-92, entitled "Public Indecency," would prohibit female topless and bottomless exhibitions and male bottomless exhibitions. It was patterned after the Indiana statute upheld by the Supreme Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Ordinance No. 31-92, entitled "Adult Entertainment Uses," ("the Ordinance" or "Ordinance 31-92") would restrict adult entertainment uses to industrial districts and prohibit them within 1000 feet of residential zones, schools, churches, and public playgrounds, swimming pools, parks and libraries. Under the proposed scheme, Phillips and Vitale would need a use variance to open their store, because they were located in a highway commercial district. The Council referred the second ordinance to the Borough Planning Board for review. In connection with the ordinances, Mayor John J. Merla stated to the Asbury Park Press correspondent:
App. at 14-15.
On July 23rd, the Borough Planning Board held a public meeting to consider proposed Ordinance No. 31-92. The Board had earlier solicited and reviewed a legal opinion concerning the Ordinance, and at the hearing, it heard an oral presentation by an engineering expert. It recommended that the Council pass the proposed ordinance, but suggested three changes, the most significant of which was to reduce the "buffer zone" from 1000 to 500 feet.
At the Council meeting on July 28th, the Council adopted Ordinance No. 31-92 as amended in light of the Planning Board's suggestions. The minutes of the meeting indicate that, although the meeting was open to the public for comments, the sole comment on Ordinance No. 31-92 was made by the Borough counsel, reporting the Planning
App. at 59 (codified at Keyport, N.J., Rev. Gen Code, ch. XXV, § 25:1-15.15 (1992)).
On September 9th, Rhodes informed Phillips and Vitale by letter that their third application for a zoning permit was denied because: (1) they lacked "ample parking," (2) a site plan was required, and (3) issuance of the permit sought would be inconsistent with "31-92 Section 2 25:1-15.15.b Adult Entertainment Uses." App. at 70. Phillips and Vitale appealed the denial, and the Board of Adjustment held public hearings on the appeal. On December 21st, a unanimous Board voted to deny the appeal, finding that plaintiffs' proposed use fell within the definition of Adult Entertainment Uses and that such uses were prohibited in a highway commercial district, where plaintiffs' site was located. The Board also found that plaintiffs had failed to demonstrate that Rhodes erred regarding the issues of inadequate parking and the need for a site plan. Phillips and Vitale then instituted this suit.
II. The Issues On Appeal And The District Court Process
In this appeal, Phillips and Vitale advance four arguments: (1) Ordinance No. 31-92 violates their right of free expression because it is not narrowly tailored to achieve a substantial, content-neutral governmental interest and because it does not leave adequate alternative channels of communication; (2) the Borough violated their right to substantive due process by revoking their original permits, by delaying action on their two subsequent applications, and by denying their third application based on Ordinance No. 31-92; (3) they are "prevailing parties" entitled to attorneys' fees and costs pursuant to 42 U.S.C. § 1988; and (4) the Borough is equitably estopped from revoking their original permits.
In response to the complaint, Rhodes and the Borough filed a motion to dismiss rather than an answer.
The district court thereafter entertained the plaintiffs' motion for summary judgment on their challenge to Ordinance No. 31-92 and their motion for a preliminary injunction barring enforcement of that Ordinance. On June 15, 1994, the district court conducted an evidentiary hearing on the issue of whether Ordinance 31-92 left alternative channels available for adult entertainment. A second evidentiary hearing was held two days later to receive evidence on the equitable estoppel issue. At the beginning of this hearing, defense counsel announced that the Borough Council had met in special session on the
Both motions were ultimately denied. The district court viewed the record as establishing that the Ordinance, as amended to reduce the buffer zone to 300 feet, afforded a constitutionally sufficient opportunity for adult entertainment expression. This finding, together with the conclusions reached in deciding the motion to dismiss, meant that Ordinance No. 31-92 was constitutional and that plaintiffs could not demonstrate a likelihood of success on this claim. The court expressed no view regarding the constitutionality of the 500 foot buffer version of the Ordinance.
The district court's third and final order came in response to the plaintiffs' motion for summary judgment on their equitable estoppel and § 1988 claims. The district court first ruled that the undisputed record facts established a lack of reasonable reliance by the plaintiffs. The district court then found that the plaintiffs were not "prevailing parties" within the meaning of § 1988. The resulting order denied plaintiffs' motion for summary judgment and concluded as follows:
Order of Feb. 14, 1994, App. at 247.
III. The Challenge to Ordinance No. 31-92
Speech, be it in the form of film, live presentations, or printed matter, that is sexually explicit in content but not "obscene" is protected under the First Amendment. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2189-81, 68 L.Ed.2d 671 (1981); Mitchell v. Comm'n on Adult Entertainment Establishments, 10 F.3d 123, 130 (3d Cir.1993). The Fourteenth Amendment extends this protection to the state and local levels. 44 Liquormart, Inc. v. Rhode Island, ___ U.S. ___, ___, 116 S.Ct. 1495, 1514, 134 L.Ed.2d 711 (1996). However, not every regulation of protected speech violates the First Amendment; nor is every form of speech regulation subject to the same degree of scrutiny when challenged in court. As the Supreme Court explained in Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994) (citations omitted):
State regulations of speech that are not regarded as content neutral will be sustained only if they are shown to serve a compelling state interest in a manner which involves the least possible burden on expression. Regulations of speech that are regarded as content neutral, however, receive "intermediate" rather than this "exacting" or "strict" scrutiny. This includes regulations that restrict the time, place and manner of expression in order to ameliorate undesirable secondary effects of sexually explicit expression. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (zoning ordinances designed to combat the undesirable secondary effects of businesses that purvey sexually explicit material are to be reviewed under the standards applicable to "content-neutral" time, place, and manner regulations). We articulated the "intermediate scrutiny" standard applicable to such measures in Mitchell v. Comm'n on Adult Entertainment Establishments, 10 F.3d 123, 130 (3d Cir.1993):
Thus, when a legislative body acts to regulate speech, it has the burden, when
A. Content Neutrality And Narrow Tailoring
The district court concluded, on the basis of the legislative findings contained in Ordinance No. 31-92, that the Ordinance is an effort to suppress the secondary effects of sexually explicit expression and not sexually explicit expression itself. Apparently, it further tacitly concluded, without explanation, that Ordinance No. 31-92 was narrowly tailored to achieve that objective. We conclude that the district court was simply not in a position to make these findings.
These findings were made by the district court when the case was in an unusual procedural posture. It sustained the constitutionality of an ordinance substantially burdening the exercise of protected speech (1) without an answer from the defendants identifying the secondary effects alleged to justify the burden on expression, and (2) without a record supporting the reasonableness of any legislative expectations regarding the likelihood of these secondary effects and the ameliorative effect of the ordinance.
The complaint alleges that the plaintiffs wished to disseminate adult entertainment and that the defendants "applied an unconstitutional ordinance to [them] with a purpose to restrain their sale, rental, exchange and exhibition of adult-theme videos, as well as adult books, magazines and the like because of their content." ¶ 60. It further alleges, inter alia, that the ordinance burdens only adult entertainment expression, "is not rationally related to a valid governmental purpose," "is not intended to further any substantial or compelling governmental purpose," "significantly restricts access to protect[ed] speech," "is not supported by a reasoned or significant basis," "is not narrowly tailored," and "is a subterfuge for the suppression of expression protected by the First Amendment." ¶ 61.
When an ordinance burdening speech is thus challenged, it must be "justified" by the state. Renton, 475 U.S. at 48, 106 S.Ct. at 929. However, because the Borough filed no answer in this case, we do not yet know how the Borough will seek to justify the Ordinance. There is no articulation by the state of what it perceives its relevant interests to be and how it thinks they will be served. This is particularly troublesome in a case, like this, where the legislative findings speak in terms of "serious objectionable operational characteristics," "deleterious effects," and "the deterioration of the community" without identifying in any way those "characteristics," those "effects," or that "deterioration."
On remand, the Borough must be required to articulate the governmental interests on the basis of which it seeks to justify the ordinance. It should then have to shoulder the burden of building an evidentiary record that will support a finding that it reasonably believed those interests would be jeopardized in the absence of an ordinance and that this ordinance is reasonably tailored to promote those interests. It is the Borough that carries the burdens of production and persuasion here, not the plaintiffs. Renton, 475 U.S. 41, 106 S.Ct. 925; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Moreover, it is the district court, not the Borough, that must make the findings necessary to determine whether the ordinance is consistent with the First Amendment. See id.; Renton, 475 U.S. 41, 106 S.Ct. 925.
The Renton Court did not sustain the constitutionality of the ordinance before it based solely on legislative findings there recited. The city justified the ordinance by placing the Seattle studies in the record and the Court concluded that these studies could reasonably be believed relevant to the problem that the city was facing. Here, the district court had no way of knowing what problem or problems the Borough thought it was facing and there is no study or other evidence in the record concerning the secondary effects of "adult entertainment uses." Moreover, because the problem or problems that the Borough believes it was facing have not been identified, the district court was in no position to determine whether Ordinance 31-92 was "narrowly tailored" to effectively ameliorate the interest or interests the Borough sought to serve. While the requirement of narrow tailoring does not mean that the ordinance must be the least restrictive means of serving the Borough's substantial interests, "[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989). Accordingly, the issue of narrow tailoring cannot be determined without knowing the undesirable secondary effects the Borough relies upon to justify its ordinance and more about the effect of Ordinance 31-92 in the context of the Borough of Keyport.
Renton does not signal an abandonment of the elements of the intermediate scrutiny standard that the Supreme Court has traditionally applied to content neutral regulation of speech. See, e.g., Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In Turner Broadcasting, the Supreme Court held that a summary judgment upholding the constitutionality of the FCC's "must carry" provisions for cable stations was improperly granted. The Court was divided on whether the challenged provisions were content neutral and, accordingly, on the level of scrutiny that should be applied. A majority agreed, however, that the challenged provisions would not survive intermediate scrutiny and emphasized the importance of applying the traditional elements of intermediate scrutiny in a realistic manner. Justice Kennedy, joined by the Chief Justice, Blackmun, J., and Souter, J., found the intermediate scrutiny standard articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)
Turner, 512 U.S. at 665, 114 S.Ct. at 2470. Justice O'Connor, joined by Scalia, J., and Ginsburg, J., found that the "must carry" rules were not content neutral but agreed that they "fail[ed even] content neutral scrutiny" because:
Turner, 512 U.S. at 682, 114 S.Ct. at 2479.
It may well be that the defendants here, by pointing to studies from other towns and to other evidence of legislative facts, will be able to carry their burden of showing that the ordinance is reasonably designed to address the reasonably foreseeable secondary effect problems. Nevertheless, our First Amendment jurisprudence requires that the Borough identify the justifying secondary effects with some particularity, that they offer some record support for the existence of those effects and for the Ordinance's amelioration thereof, and that the plaintiffs be afforded some opportunity to offer evidence in support of the allegations of their complaint. To insist on less is to reduce the First Amendment to a charade in this area.
B. The Adequacy of Alternative Channels
Ordinance 31-92, as originally proposed by the Borough Council, prohibited adult entertainment uses located on any land not zoned industrial or in a "buffer zone" — i.e., less than 1000 feet from a residence or residential zone, school, church, etc. As a result of advice from the Planning Board's engineer that a 1000 foot buffer would leave no land available for an adult bookstore, the Ordinance, as ultimately adopted, called for a 500 foot buffer zone.
At the September 15, 1993, evidentiary hearing, the plaintiffs' expert land use planner, George A. VanSant, testified that the 500 foot version of the ordinance prohibited an adult video store anywhere in the Borough. He tendered a map that depicted the portions of Keyport zoned industrial with superimposed arcs marking 500 feet from each residential property in Keyport and adjacent areas. With respect to the buffers associated with residential properties in adjacent areas, VanSant explained that the Borough's zoning plan had been coordinated with the zoning plans of the contiguous townships and that the buffer provisions of the Ordinance, interpreted in the context of the Borough's zoning ordinance, had to be applied to residential property in contiguous areas.
In response to this testimony, the defendants called the Borough's Planning Board engineer, Paul M. Sterbenz. He testified that the intent of the 500 foot ordinance was to leave four lots in the industrial zone available for an adult bookstore. He acknowledged, however, that when he reviewed the 500 foot version for the Planning Board he had inadvertently failed to take into account a residential area in adjacent Hazlet Township. He further acknowledged that when this error was corrected only a portion of two lots were available for an adult bookstore. Finally, on cross-examination, Sterbenz agreed with VanSant's view that for zoning purposes in the Borough a lot takes on the character of the use to which any portion thereof is put.
Despite this last concession, the defendants' counsel continued to insist that a portion of two lots could be used for an adult bookstore. In support of this position, they called Richard Maser, the Borough Engineer for the Borough of Keyport. He expressed the opinion that an adult bookstore could be constructed on the portion of the two lots that lay outside the 500 foot buffer so long as other set back requirements were met. He did not explain the basis for this opinion, however, and did not comment on VanSant's and Sterbenz's understanding of "use." In response to a question from defense counsel, Maser expressed the further opinion that the Council's original intention of leaving four lots available for an adult bookstore could be accomplished by reducing the buffer zone to 250 feet.
On the evening of June 15th, after the close of the hearing, the Borough Council held a special meeting and adopted a resolution declaring its intention to reduce the buffer zone to 300 feet. It recognized that it could not legally effect the change before the scheduled hearing on September 17th but authorized counsel to advise the court of its intent and to indicate that it considered itself bound to effectuate the change.
At the beginning of the June 17th hearing on the equitable estoppel issue, defense counsel advised the court of the Council's resolution and declared that the amendment would make three lots in their entirety available for an adult entertainment use. He further indicated that a portion of a fourth lot would be available. The resolution was marked as an exhibit. Although the transcript does not affirmatively indicate whether it was formally admitted into evidence, the court and counsel explored the effect of the new ordinance on the map exhibits. The court clearly indicated that it was considering the resolution as a part of the evidence in the case and that it considered the Borough bound by it. Counsel for Phillips and Vitale did not at any time object to consideration of the resolution by the court and concluded his closing argument on the issue of alternative access with the following comments concerning three "available" lots:
Tr. at 203.
As we have indicated, the district court upheld the constitutionality of the 300 foot Ordinance. It did not comment upon the constitutionality of the 500 foot Ordinance. In this appeal, Phillips and Vitale do not argue that the 300 foot ordinance fails to provide constitutionally sufficient alternative channels of expression for adult entertainment. They do insist that the district court erred in failing to rule upon the constitutionality of the 500 foot Ordinance. They also contend that the 300 foot Ordinance was not properly before the district court and, alternatively, that it violates the First Amendment, even assuming that it leaves constitutionally sufficient alternative channels of expression for adult entertainment.
We agree with Phillips and Vitale that the district court erred in failing to adjudicate their § 1983 claim that the 500 foot version of Ordinance 31-92 violated their First Amendment rights. As we have pointed out, the defendants have not tendered record justification for the Ordinance tending to establish that it is narrowly tailored to serve a substantial state interest and the evidence from the June 15, 1993, hearing would provide ample basis for concluding that this version of the Ordinance leaves no alternative channel open for adult entertainment expression. Contrary to the defendants' suggestion, the issue of the constitutionality of this version of the Ordinance is not moot. Phillips and Vitale have a § 1983 damage claim based on the 500 foot version of the Ordinance. They seek damages for defendants' refusal to permit them to operate an adult bookstore on Lot 61 from July 28, 1992, when Ordinance 31-92 was first adopted, to the date in the fall of 1993 on which the 300 foot version of the Ordinance was adopted. If the 500 foot Ordinance is unconstitutional, Phillips and Vitale are entitled to any damages they can establish to have been occasioned by it.
As Renton, 475 U.S. 41, 53-54, 106 S.Ct. 925, 931-32, and Mitchell, 10 F.3d 123, 139, 144, indicate, the existence of adequate alternative channels for adult entertainment expression is an essential element for the state to satisfy when it relies upon its authority to adopt time, place, and manner regulations.
Turning to the 300 foot Ordinance, we agree with the defendants that Phillips and Vitale waived their right to complain about the district court's considering that version of the Ordinance. The record of the June 17th hearing clearly establishes that the district court considered the defendants bound by Council's September 15th resolution and that it intended to consider the 300 foot version of the statute in connection with the plaintiffs' request for injunctive relief. Plaintiffs' counsel not only failed to object to consideration of that Ordinance, but also assisted the court in understanding its effect on the evidence produced at the September 15th hearing and made a closing argument premised on its adoption.
On remand, the district court will be required to adjudicate the constitutionality of the 300 foot version of the Ordinance in order to determine Phillips' and Vitale's entitlement to an injunction and to damages arising after its adoption. Since Phillips and Vitale chose not to appeal from the district court's determination that this version leaves adequate alternative channels for adult expression,
C. The Necessity of the Presentation of Pre-Enactment Evidence
While we thus agree with appellants that they are entitled to a reversal of the judgment against them on their First Amendment claim, we reject their argument that they are entitled to a mandate requiring the entry of a judgment in their favor on this claim. Phillips and Vitale read Renton and our decision in Mitchell as endorsing a per se rule that any governmental regulation of speech is invalid if the adopting entity did not have before it, at the time of adoption, evidence supporting the constitutionality of the action taken. Thus, in appellants' view, a governmental entity may successfully defend a First Amendment challenge of the kind here mounted only if it can show that it was exposed, before taking action, to evidence from which one could reasonably conclude that undesirable secondary effects would occur in the absence of legislative action and that the particular action taken was narrowly tailored to ameliorate those secondary effects. We find no such rule in Renton, Mitchell, or any other governing precedent.
There is a significant difference between the requirement that there be a factual basis for a legislative judgment presented in court when that judgment is challenged and a requirement that such a factual basis have been submitted to the legislative body prior to the enactment of the legislative measure. We have always required the former; we have never required the latter. Whatever level of scrutiny we have applied in a given case, we have always found it acceptable for individual legislators to base their judgments on their own study of the subject matter of the legislation, their communications with constituents, and their own life experience and common sense so long as they come forward with the required showing in the courtroom once a challenge is raised. In reliance on this approach, most municipal and county councils throughout the land and some state legislatures do not hold hearings and compile legislative records before acting on proposed legislative measures. We perceive no justification in policy or doctrine for abandoning our traditional approach. Moreover, we believe that insistence on the creation of a legislative record is an unwarranted intrusion into the internal affairs of the legislative branch of governments.
If a legislative body can produce in court whatever justification is required of it under the applicable constitutional doctrine, we perceive little to be gained by incurring the expense, effort, and delay involved in requiring it to reenact the legislative measure after parading its evidence through its legislative chamber. A record like that presented to the town council in Renton can be easily and quickly assembled, and a requirement that this be done is unlikely to deter any municipal body bent on regulating or curbing speech. While we agree with appellants that the creation of a legislative record can have probative value on what the lawmakers had in mind when they acted, we do not understand why its absence should be controlling when the court is otherwise satisfied that the legislative measure has a content-neutral target.
The Supreme Court's Renton case and our Mitchell case sustained the constitutionality of the ordinances before them. Renton, 475 U.S. at 54-55, 106 S.Ct. at 932-33; Mitchell, 10 F.3d at 144. Thus, they clearly cannot stand for the proposition that a legislative record is a constitutional prerequisite to validity.
The only case we have been able to find in which an argument has been made similar to the one appellants here advance is Contractors Association v. City of Philadelphia, 6 F.3d 990 (3d Cir.1993). That case involved a constitutional challenge to an affirmative action ordinance favoring minorities, women, and disabled persons in the award of city construction contracts. The governing law required that the provisions of the ordinance that drew lines on the basis of race be subjected to strict scrutiny. Id. at 1000. Thus, the city was required to show that it had a compelling state interest and that the ordinance was the least restrictive means of serving that interest. This meant that the city had the burden of producing a strong evidentiary basis for concluding that there had been preexisting discrimination against minorities in which the city had played a role and that the ordinance was necessary to remedy the continuing effects of that discrimination. Id. at 1001-02.
The plaintiffs in Contractors urged this court to hold that the ordinance was unconstitutional if the City Council did not have before it at the time of the enactment of the ordinance the required evidentiary basis. We rejected that argument. While we acknowledged that the City Council did not have the required strong evidentiary basis before it at the time it acted, we held that the ordinance could be justified on the basis of evidence acquired thereafter. Id. at 1003-04.
If we do not insist on a legislative record when we are required to subject a legislative measure to the highest scrutiny, we would be hard-pressed to rationalize insistence on a legislative record when we are, as here, applying a lesser, more deferential standard of constitutionality.
IV. The Challenge to the Permit Decisions
Appellants contend that their right to substantive due process was violated when their initial permit applications were revoked, when Rhodes, in connection with their subsequent applications, imposed requirements he had not imposed previously, and when Rhodes simply refused to act even after those requirements were met. The actions and delay were allegedly the result of a conspiracy entered into by Rhodes, the Board of Adjustment and the Mayor because of their dislike of the content of the materials appellants intended to sell. The reason given for the revocations (i.e., the erroneous lot numbers) and the new requirements, according to appellants, were simply pretexts to mask a motivation that was wholly unrelated to the merit of their applications. The actions and delay allegedly afforded the Borough an opportunity to adopt Ordinance 31-92, which was then advanced as a reason for the denial of the last application. The district court dismissed the substantive due process count of the complaint for failure to state a claim.
In the course of evaluating these claims, the district court observed that "where there is an explicit textual constitutional provision addressing the alleged wrongs — as there is here in the form of the First Amendment — it must be the guide for liability rather than `the more generalized notion of substantive due process.'" App. at 137. The court did not explain, however, why the allegations of the complaint concerning the period prior to the adoption of Ordinance 31-92 failed to state a claim under First Amendment standards.
The analysis of the district court, as far as it goes, is accurate. It does not follow, however, that these allegations of the complaint fail to state a substantive due process claim upon which relief could be granted.
The right to substantive due process conferred by the Fourteenth Amendment includes the right to be free from state and local government interference with certain
In Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32 (1st Cir.1992), the
We conclude that Phillips and Vitale have alleged facts that, if proven, could serve as a predicate for a recovery on their claim involving permit denial, delay and revocation. Contrary to the defendants' argument, it seems clear to us from the face of the Borough's zoning ordinance at the time of their first application that the proposed use of Lot 61 was a permitted use in a commercial zone. While the revocation of Phillips' and Vitale's permits purported to rest on the fact that the authority conferred by the permits was for Lot 59, which was in a residential zone, the complaint alleges that everyone had a common understanding that Lot 61 was the lot in question and that, but for their dislike of the content of the proposed adult entertainment expression, Rhodes or the Board of Adjustment would have corrected the lot number on the permits and affirmed the authority which Rhodes intended to grant. Similarly, the complaint alleges that Rhodes and the Mayor interfered with the processing of the second and third applications solely because of their antipathy toward the content of the materials Phillips and Vitale intended to market.
Under these circumstances, we conclude that the district court was in error when it granted the motions to dismiss the permit claim and that the case must be remanded for further proceedings on that claim.
We offer one additional observation to assist the district court in the further proceedings on this claim. We find nothing improper in a good-faith decision by an authorized public official to delay action on all applications for authority that would be affected by a proposed amendment to the governing ordinance in order to allow a reasonable time for a legislative body to consider and vote on the proposal. Thus, if a public official authorized by local law to impose a moratorium on the issuance of permits imposed such a moratorium for the purpose of allowing the municipality a reasonable opportunity to consider whether the secondary effects of adult entertainment uses required additional zoning regulation, any resulting delay could not constitute a substantive due process violation. It is by no means clear, however, that this is what happened here. As the record develops, it may be that the trier of fact will reasonably conclude that the delay occasioned by Rhodes or the Mayor was occasioned not by concern for what the Borough Council might determine to be undesirable secondary effects, but rather by distaste for the sexually explicit material, as Phillips and Vitale allege. The crucial difference in the two situations is the propriety of the motivation of the official causing the delay.
V. The Claim for Litigation Expenses under 42 U.S.C. § 1988
It follows from the foregoing discussion that Phillips and Vitale may prevail on some or all of their federal claims. To the extent they prevail on those claims, they will be entitled to an award of reasonable costs and counsel fees under 42 U.S.C. § 1988.
VI. The Equitable Estoppel Claim
Finally, Phillips and Vitale argue that the Borough is equitably estopped under New Jersey law from revoking the zoning permit issued by Rhodes on March 9, 1992, and the construction permits issued on March 18th. Specifically, they contend that they reasonably relied on those permits to their detriment by entering into the lease and by "beg[inning] to renovate the property in order to prepare it for their contemplated use" after receiving construction, electrical, and plumbing permits. Appellants' Brief at 38. Without the zoning permit, they allege, they would have done neither.
The district court rejected this argument in the course of denying Phillips' and Vitale's motion for summary judgment. It concluded that, under Lizak v. Faria, 96 N.J. 482, 476 A.2d 1189 (1984), Phillips and Vitale could not demonstrate good faith reliance on the initial zoning permits and, accordingly, were not entitled to assert a claim of equitable estoppel. On appeal, Phillips and Vitale argue, inter alia, that Lizak is distinguishable and that they did rely in good faith on Rhodes' initial determination.
The doctrine of equitable estoppel is well established in New Jersey.
Miller v. Miller, 97 N.J. 154, 478 A.2d 351, 355 (1984); see Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 403 A.2d 880, 882-83 (1979). "A prerequisite of equitable estoppel" is that such reliance be in "good faith." Lizak, 476 A.2d at 1198. "The doctrine of equitable estoppel is applied `only in very compelling circumstances,' `where the interests of justice, morality and common fairness clearly dictate that course.'" Palatine I v. Planning Bd. of Township of Montville, 133 N.J. 546, 628 A.2d 321, 328 (1993) (citations omitted). In particular, "equitable estoppel is rarely invoked against public entities, although it may be invoked to prevent manifest injustice." W.V. Pangborne & Co., Inc. v. New Jersey Dep't of Transportation, 116 N.J. 543, 562 A.2d 222, 227 (1989); see O'Malley v. Dep't of Energy, 109 N.J. 309, 537 A.2d 647, 650-51 (1987).
In Lizak, the Farias had applied for a zoning variance. 476 A.2d at 1191-93. After opposition from nearby residents, the Woodbridge Township Board of Adjustment denied the variance. Id. at 1191. However, the board failed to record its determination in writing. As a result the Farias, under New Jersey law, were entitled to an automatic grant of the variance. Id. at 1192. A day after the Woodbridge Municipal Clerk certified the grant of the variance, the Farias obtained a building permit, and ten days later they began construction. Within a month, the exterior of the building was completed at an estimated expense of $60,000, almost one-half of the estimated cost of the project. When a nearby resident realized what was happening, she filed an appeal to the Township Council seeking revocation of the variance and the permit and an order directing the removal of the construction. The Farias responded that they had relied on the issuance of a valid building permit in proceeding with the construction and that the municipality was equitably estopped from ordering the removal of the existing structure. Id. at 1193.
The New Jersey Supreme Court rejected the Farias' argument. Id. at 1198-99. After noting that good faith reliance is a prerequisite
Id. at 1198 (citation omitted).
Phillips and Vitale, in this appeal, urge that there is a world of difference between their circumstances and those of the Farias. However, we reject appellants' effort to limit Lizak to its admittedly egregious facts. The driving force in that case was that parties who proceed with construction while their permits are still appealable "[take] their chances." Id. As the trial court in Lizak explained,
To sustain appellants' position here would eviscerate the appellate process in land use applications. It would encourage recipients of zoning permits to launch into large-scale construction or renovation so as to present municipal authorities with a fait accompli before other affected parties have exhausted their opportunities to challenge the permit. We believe these considerations support the clear mandate of the highest court in New Jersey in Lizak.
The judgment of the district court will be reversed and the case will be remanded for further proceedings consistent with this opinion.
ALITO, Circuit Judge, concurring and dissenting, with whom Judge GREENBERG, joined.
I join all but part IV of the opinion of the court. As I read the plaintiffs' complaint, it asserts a substantive due process claim under a line of panel decisions that stems from Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488 U.S. 851 and 868, 109 S.Ct. 134 and 176, 102 L.Ed.2d 107 and 145 (1988). See also Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 268 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 303, 133 L.Ed.2d 208 (1995); DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592, 599-601 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 352, 133 L.Ed.2d 247 (1995); Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 683 (3d Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1668, 118 L.Ed.2d 389 (1992). Bello and the subsequent panel decisions — which followed Bello, as was of course required — seem to hold that substantive due process is violated whenever a government official who harbors "some improper motive," Midnight Sessions, Ltd., 945 F.2d at 683, deprives a person of certain property rights, apparently including the unrestricted use of the person's real estate. See DeBlasio, 53 F.3d at 600-01.
Under these decisions, the plaintiffs could prevail on remand by showing simply that the defendants deprived them of a protected property interest for some "improper motive"; a motive that is violative of the First Amendment would not have to be shown. As the plaintiffs stated in their brief, under Bello, "[i]n the land use context, ... [w]here there is a deliberate and arbitrary abuse of
Rather than applying (and thus reaffirming) Bello and its progeny, the majority has transformed the plaintiffs' Bello claim into what is in essence a First Amendment claim,
Since the plaintiffs have asserted a Bello claim, I think that the in banc court should confront the question whether Bello remains good law. If it does, the full court should not be hesitant to reaffirm it. But if — as the court's approach here signals — the in banc majority is uncertain about Bello's validity, the court should not skirt the issue. The question is properly before us; Bello and its progeny are important decisions that are invoked with some frequency; and a resolution of the validity of these precedents as components of circuit law would be useful to the district courts and the bar. The majority's approach, which leaves these decisions in limbo, may lead to much wasted litigation before the district courts and before panels of this court, which are of course bound by Bello until it is overruled by the in banc court or by the Supreme Court.
As I have previously suggested, see Homar v. Gilbert, 89 F.3d 1009, 1029-30 (3d Cir.1996) (Alito, J., concurring in part and dissenting in part), cert. granted on other issue, ___ U.S. ___, 117 S.Ct. 678, 136 L.Ed.2d 604 (1997), I think that Bello was wrong and was based on a misreading of Supreme Court precedent. In Bello, the plaintiffs claimed that certain municipal officials had "improperly interfered with the process by which the municipality issued building permits, and that they did so for partisan political or personal reasons unrelated to the merits of the application for the permits." 840 F.2d at 1129. The panel held that "[t]hese actions ... if proven, are sufficient to establish a substantive due process violation...." Id. at 1129-30. The panel wrote:
840 F.2d at 1128-29.
In my view, this analysis is clearly flawed. In the first place, neither Daniels v. Williams, supra, nor Davidson v. Cannon, supra, provides much guidance on substantive due process since neither was a substantive due process case. Instead, both concerned procedural due process. In Daniels, the plaintiff was an inmate who alleged that he had slipped and fallen on a pillow that had been left on the stairs by a correctional deputy. The Supreme Court summarized his constitutional claim as follows:
474 U.S. at 328, 106 S.Ct. at 663.
This was plainly a procedural, not a substantive, due process claim. Substantive due process bars certain government actions irrespective of the fairness of the procedures used to implement them, Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068-69, 117 L.Ed.2d 261 (1992), and the plaintiff in Daniels was not arguing that his due process rights would have been violated even if fair procedures had been available (i.e., even if he had been able to obtain a complete recovery for his damages) under state law. Rather, he was contending that the deprivation of his liberty interest was "without due process of law" because the state did not provide adequate post-deprivation procedures.
Similarly, the plaintiff in Davidson asserted a procedural, not a substantive, due process claim. In that case, the plaintiff was an inmate who claimed that prison officials had negligently failed to protect him from a fellow inmate who attacked him. The Court wrote:
474 U.S. at 348, 106 S.Ct. at 670 (emphasis added).
Justice Stevens' concurrence also emphasized that the claims in both Daniels and Davidson concerned procedural, not substantive, due process. He wrote:
474 U.S. at 340 & n. 16, 106 S.Ct. at 679 & n. 16. Thus, it seems clear that neither Daniels nor Davidson was a substantive due process case. Moreover, neither Daniels nor Davidson provided any extended or novel discussion of substantive due process. Daniels
Despite the fact that Daniels and Davidson were not substantive due process cases and had little to say about substantive due process, Bello used them as the basis for an important substantive due process holding. From them, Bello extracted the unremarkable proposition that the constitutional guarantee of due process was intended to protect the individual against the arbitrary exercise of government power, and Bello then reasoned that "the deliberate and arbitrary abuse of government power violates an individual's right to substantive due process." 840 F.2d at 1129. This reasoning overlooked the fact that the primary means by which due process protects against the arbitrary exercise of power by government officials is by requiring fair procedures, i.e., by requiring adherence to principles of procedural due process. Only in extreme circumstances is it proper to invoke substantive due process.
In addition to Daniels and Davidson, Bello cited, in support of its substantive due process analysis, one other Supreme Court case, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977), and one Third Circuit case, Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1034-35 (3d Cir.), cert. denied, 482 U.S. 906, 107 S.Ct. 2482, 96 L.Ed.2d 375, reh'g denied, 483 U.S. 1040, 108 S.Ct. 10, 97 L.Ed.2d 800 (1987). However, Bello seems to have misinterpreted these decisions in an important respect. Arlington Heights and Pace Resources stand for the principle that a zoning ordinance violates substantive due process if the zoning authority could not have had a rational basis for adopting it. As Pace explained, "`federal judicial interference with a state zoning board's quasi-legislative decisions, like invalidation of legislation for "irrationality" or "arbitrariness," is proper only if the governmental body could have had no legitimate reason for its decision.'" 808 F.2d at 1034 (citation omitted) (emphasis added in Pace). Pace did not suggest that a plaintiff could state a valid substantive due process claim merely by alleging that an ill-motivated government official had interfered with the plaintiff's use of his or her real estate. On the contrary, Pace held that the challenged government actions in that case did not violate substantive due process even though a state court had found them to be "`arbitrary and unjustifiably discriminatory.'" Id. at 1028, 1034 (citation omitted). Furthermore, Pace quoted with approval a First Circuit case, Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982), which stated that a "conventional planning dispute," "regardless of ... defendants' alleged mental states," does not implicate substantive due process, "at least when not tainted with fundamental procedural irregularity, racial animus, or the like." Id. at 833 (emphasis added).
Bello, however, took the highly deferential, objective test set out in Arlington Heights and Pace — whether the zoning authority could have had a rational basis for its action — and turned it into a subjective test of good faith, i.e., whether municipal officials' actions in connection with land use matters were taken for "partisan political or personal reasons unrelated to the merits of the application for the permits." 840 F.2d at 1129. This was a significant step, see 2 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 15.4 at 415 n.60 (1992 & 1996 Supp.), and the Bello court did not provide any explanation for it.
The Supreme Court has stated: "As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking are scarce and open-ended.... The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." Collins, 503 U.S. at 125, 112 S.Ct. at 1068. However, Bello broke new ground, without acknowledging that it was doing so, and I see nothing in Bello or the cases that have followed it that convinces me that every ill-motivated governmental action that restricts the use of real estate constitutes a violation of substantive due process. Most of the serious abuses that occur in this area, such as instances of invidious discrimination, can be redressed by other
Thus, while I would remand the plaintiffs' First Amendment claim, both with respect to the defendants' pre- and post-ordinance conduct, I would affirm the dismissal of the plaintiffs' substantive due process claim.
ROSENN, Circuit Judge, dissenting.
Although I agree with the majority's analysis of the facts and much of the law, I differ with them with respect to Part III(C), "The Necessity of the Presentation of Pre-Enactment Evidence." The majority concludes that a municipality may constitutionally enact an ordinance restricting the expression of speech without any legislative record before it justifying such restrictions. I believe that the Borough of Keyport's failure to articulate at the time of enactment any governmental interest justifying its Ordinance No. 31-92, designed to curb protected speech expression, is a fatal constitutional defect. The defect cannot be cured by allowing the municipality to structure a post hoc record more than four years later and then after judicial review by a trial and appellate court.
The majority and I agree that speech, whether in the form of film, print, or live presentations, though sexually explicit in content but not obscene, is protected under the First Amendment. Maj. op. at 172. We further agree that when a legislative body acts to regulate speech on the basis that its action serves a substantial, content-neutral state interest, as Keyport Borough did in this case, it must come forward with evidence of adverse social effects that justify reasonable time, place, and manner restrictions on speech or expressive conduct; the municipality must support its position "with a reasoned and substantial basis demonstrating the link between the regulation and the asserted governmental interest." Maj. op. at 173, quoting Mitchell v. Commission on Adult Entertainment, 10 F.3d 123, 132 (3d Cir.1993). It is undisputed that Keyport Borough failed this indispensable requirement. It is also undisputed that the district court sustained the constitutionality of the Keyport ordinance which substantially burdened the exercise of protected speech "without a record supporting the reasonableness of any legislative expectations" that warranted its findings
Maj. op. at 174.
Where we part company, however, is that the majority, in the face of a decision of the Supreme Court and decisions of a substantial number of United States courts of appeals to the contrary, holds today that a legislative body need have no record before it at the time of enactment justifying an ordinance regulating protected speech. Although I fully empathize with the efforts of the Borough of Keyport to preserve a wholesome quality of community life, I cannot lend my support to the majority's potentially dangerous disregard of an established safeguard in protection of cherished First Amendment rights, namely, a record at the time of enactment justifying the restrictive regulation of protected speech.
There is no question that local legislative bodies are to be afforded great deference when it comes to zoning matters. Rogin v. Bensalem Township, 616 F.2d 680, 698 (3d Cir.1980). The Supreme Court, however, has made clear that the latitude generally afforded legislatures may be narrowed when First Amendment concerns are at stake. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543-44, 56 L.Ed.2d 1 (1978). Although sexually oriented materials are due less protection than other forms of expression, Young v. American Mini Theatres, 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976), their regulation by zoning nonetheless triggers a heightened level of scrutiny. Courts have reconciled respect for local land regulation concerns with the protection of speech by requiring that municipalities impose restraints on adult entertainment establishments only where there is evidence that they have deleterious "secondary effects" upon the adjacent areas. Id. at 71 n. 34, 96 S.Ct. at 2452 n. 34.
Although adult entertainment establishments may provide a form of entertainment that is entitled to at least some First Amendment protection from municipal authority, see Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); American Mini Theatres, 427 U.S. at 61, 96 S.Ct. at 2448, the majority takes the position that the evidence may be developed at any time after the zoning enactment until challenged in court. This runs counter to the protective purpose of such an evidentiary requirement, which is the view taken by the Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and by virtually every other circuit in this country.
We are not free to ignore the purpose of the requirement and the binding precedent. Thus, I find the majority view on this issue unacceptable. The majority makes several sweeping statements to the effect that this court has "never" required more of a municipality than that it make the required showing once a challenge to legislation is raised. It ignores the significance of the timing for the evidentiary record to justify the restrictive impositions of speech; if speech is to be so restricted, the justification should be stated at the time of enactment so that appropriate judicial scrutiny might be made. The majority offers no support whatsoever for its statements, and I do not believe such support exists in our precedents with respect to the regulation of protected speech.
Renton stands only for the proposition that a municipality need not conduct its own pre-enactment studies (i.e., that it may rely on studies conducted by other communities). The unavoidable inference from Renton is that the municipality must rely upon something at the time of enactment justifying its action limiting freedom of speech. The various courts of appeals, including our own in Mitchell, supra, have emphasized the Supreme Court's statement that
Renton, 475 U.S. at 51-52, 106 S.Ct. at 931 (emphasis added). Accordingly, not a single court of appeals has interpreted Renton as requiring absolutely no pre-enactment evidence.
The majority asserts that because Renton and Mitchell sustained the constitutionality of the ordinances before them, they cannot stand for the proposition that a legislative record is a constitutional prerequisite to validity. I strongly disagree. Both the Renton Court and the Mitchell court leave no doubt that pre-enactment evidence is indeed a constitutional requirement; the courts sustained the ordinance in question because they were satisfied that the enacting body had sufficient evidence before it. See Renton, 475 U.S. at 51-52, 106 S.Ct. at 930-31; Mitchell, 10 F.3d at 134-35.
The majority also maintains that in Mitchell, this court expressly reserved the issue of whether pre-enactment evidence is necessary. Again, I disagree. Mitchell plainly requires such evidence. The skillful use of ellipses ought not to allow us to circumvent binding precedent. The majority asserts that Mitchell says that it was "unnecessary ... to reach or decide ... whether a statute passed without any pre-enactment evidence of need or purpose" can be valid. The full quotation, sans ellipsis, makes quite a different point. It reads: "Here, it is unnecessary for us to reach or decide whether the doctrine of legislative notice of the incidental activities common to adult book stores can save a statute passed without any evidence of pre-enactment evidence of need and purpose." Mitchell, 10 F.3d at 136 (emphasis added).
We are thus bound by both Supreme Court precedent and the precedent of our own circuit to require at least some evidence at the time of adoption before we sustain a restrictive ordinance of the type currently before us. The majority is of the view that the legislative body need have no factual basis before it at the time of the enactment of the ordinance, and that such a requirement is only necessary when the legislative judgment is challenged in court. Maj. op. at 177-78. If we look to cases decided in our sister circuits, we also see that no other circuit in this country has espoused the extreme, and I believe incorrect, position taken by the majority. Cases similar to the one at bar have been decided in the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits.
The majority argues that most of the cases I cite from other circuits sustained the ordinance and "therefore cannot stand for the principle that the lack of a legislative record is a fatal constitutional defect." Maj. op. at 178, n. 6. Those ordinances that were sustained, however, did have legislative records at the time of their enactment. Those held constitutionally defective, Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987), or constitutionally suspect, Christy v. Ann Arbor, 824 F.2d 489 (6th Cir.1987). cert. denied, 484 U.S. 1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988), did not have legislative records.
The majority also looks for support to the decision by this court in Contractors Ass'n v. City of Philadelphia, 6 F.3d 990 (3d Cir. 1993). Aside from the fact that Contractors is inapposite in that it was an affirmative action case, principally sought injunctive relief, and did not involve free speech, it does not stand for the proposition that pre-enactment evidence is unnecessary. We simply stated in Contractors that the preenactment evidence considered by the Philadelphia City Council could be supplemented by post-enactment evidence at the time the case went to trial. Id. at 1003-04. Moreover, we were uncertain whether the supplemental evidence did not in fact constitute preenactment evidence because it was a study involving minimal risk of "insincerity associated with post-enactment evidence" for it consisted "essentially of an evaluation and re-ordering of preenactment evidence...." Finally, the court was strongly influenced in permitting the admission of the post-enactment study because "the principal relief sought, and the only relief granted by the district court, was an injunction." Id. at 1004.
At this juncture, the effects of adult entertainment establishments are so open and notorious that requiring legislative bodies to consult studies or other evidence confirming their deleterious impact may seem unnecessarily burdensome — just another hoop to jump through in the process of lawmaking. However, this requirement is not without purpose. It limits the risk that legislatures will impose restrictions on speech activities on the basis of supposed secondary effects that on closer scrutiny lack any evidentiary support, and it lends support to the representation that the content-neutral interest articulated by the lawmaking body was not merely pretextual and illicitly designed to suppress speech expression, even that constitutionally protected.
Accordingly, I believe that we must reverse the district court's grant of the defendants' motion to dismiss on the due process claims and reverse the district court's denial of plaintiffs' motion for summary judgment on the First Amendment challenge to the "adult entertainment uses" Ordinance No. 31-92. For the reasons stated above, I would hold that the ordinance does violate the First Amendment, strike it down, and remand the case to the district court to consider plaintiffs' request for damages. Finally, I would vacate the denial of attorney's fees and also remand this issue to the district court for further proceedings.
ADULT ENTERTAINMENT USES, INCLUDE: (1) ADULT BOOKSTORE — An establishment having as a substantial or significant portion of its stock in trade books, magazines, other periodicals, or any tangible items and objects, not necessarily of a reading or photographic nature, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, or an establishment with a segment or section devoted to the sale or display of such material.
(2) ADULT MOTION PICTURE THEATER — An enclosed building with a capacity of fifty (50) or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons therein.
(3) ADULT MINI MOTION PICTURE THEATER — An enclosed building with a capacity for less than fifty (50) persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons therein.
(4) CABARET — An establishment which features go-go dancers, exotic dancers, strippers, or similar entertainers.
App. at 57-58 (codified at Keyport, N.J., Rev. Gen.Code, ch. XXV, § 25:1-3(a) (1992)).
The only improper motivation alleged here is thus distaste for the content of the speech involved. Because this case involves only alleged infringements of the right to free expression, the standard of liability articulated in the above-cited cases is inapposite here.