Amicus Brief — Schad v. Mount Ephraim

No. 79-1640

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

James F. Schad 613 Corporation

and Juliette Ann DiLuciano,

Petitioners,

V.

Borough of Mount Ephraim,

Respondent.

ON APPEAL FROM THE

SUPREME COURT OF NEW JERSEY

BRIEF OF MORALITY IN MEDIA, INC.

AS AMICUS CURIAE

Anthony H. Atlas

261 Madison Avenue

New York, New York 10016

Counsel for

Morality in Media, Inc.

Amicus Curiae

Paul J. McGeady

Terence Carroll

475 Riverside Drive

New York, New York 10115

(212) 870-3232

of

Counsel

SUBJECT INDEX

Page

Deere OC AMLGCE. 1 www. cece ee 1

Summary of Argument........... 4

a ee 7

o THE ORDINANCE OF THE

BOROUGH OF MOUNT EPHRAIM IS

A REASONABLE AND

CONSTITUTIONAL EXERCISE OF

THe POLICE POWER. .........4- 7

II. THE BOROUGH OF MOUNT

EPHRAIM'S ZONING ORDINANCE

IS A TIME, PLACE AND MANNER

pg 1 0 hile Ct). FESR 19

A SI ae ae 24

TABLE OF AUTHORITIES CITED

CASES

Agins v. City of Tiburon, _U.S._,

65 L.Ed.2d 106 (1980)...... 10,19

Berman v. Parker, 348 U.S. 26

es a wh A eb sO ee Wee et 8,9

Cadoux v. Planning & Zoning Commission,

162 Conn. 425, cert. denied,

ei. SEW CASTE) ss.4 00 000 es 15

nite

Page

Euclid v. Ambler Realty Co.,

272.0:6.: Sew the eei ese 7, 10.11.38.

Kaplan v. California, 413 U.S.

Gh. Beet Fy p Pere ere arya ae 3

Lamar v. Micou, 114 U.S. 218

CR ee ee ee ee ee ee 16

McDermott v. Village of Calverton

Park, 454 S.W.2d 577

BPO) sos 6 oS he keer sks 13

Paris Adult Theatre I v. Slaton,-:

BLS 0B. GR. CAFS) + ove tees 3

Police Department of Chicago v.

Mosley, 408 U.S. 92

a: phy ee rea Tre ee Jee ee 20

Reynolds v. Barrett, 12 Cal. 2d

EU: | Peer ere re res 14

Valley View Village v. Proffet,

221 F.2d 412, (ota Cir.

jh) 3 rere ee aa ee a 12,16

Village of Belle Terre v. Boraas,

BiG Ui8i 2h CLR oe cee 9,16,18

Young v. American Mini Theatres,

427 U.S. 50 (1976).......; 6,8,9,22,23

-iii-

STATUTES

Page

Mount Ephraim Zoning

Ordinance 99-15B............ 7,8,19,21,24

1926 New Jersey Laws,

CRI yy hee es see ae 16

MISCELLANEOUS

Hill-Link Minority Report of

the Presidential Commission

on Obscenity and Pornography

th.) ae pa ee tebe ew

Petitioner's Brief for

CN oe uN wees ar

The Law of Zoning and Planning

i.e ee: re err re 21

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-1640

James F. Schad 613 Corporation

and Juliette Ann DiLuciano

Petitioners,

i

Borough of Mount Ephrain,

Respondent

ON APPEAL FROM THE

SUPREME COURT OF NEW JERSEY

BRIEF OF MORALITY IN MEDIA, INC.

AS

AMICUS CURIAE

INTEREST OF AMICI

Morality In Media, Inc. as Amicus

Curiae, files this brief in this case

2

which is before this honorable Court

on the merits, under the provisions

of Rule 36.2.

Morality in Media, Inc., is a

New York not for profit inter-faith

charitable Corporation, organized in

1968 for the purpose of combatting the

distribution of obscene material in the

United States. This organization, now

national in scope, has affiliates in

seven states. It corresponds eight

times a year with over 30,000 recipients

of its newsletter located in every state

of the United States. Its Board of

Directors and National Advisory Board

are composed of prominent businessmen,

clergy and civic leaders. Its national

headquarters is located at 475 Riverside

Drive, New York, New York 10115.

The President of Morality in Media,

3

Inc., is Reverend Morton A. Hill, S.J.

In 1968 Father Hill was appointed to the

Presidential Commission on Obscenity and

Pornography. He, along with Doctor

Winfrey C. Link, produced the "Hill-Link

Minority Report of the Presidential

Commission on Obscenity and Pornography".

Morality in Media files this brief

supporting the position of the Borough

of Mount Ephraim because it believes that

the decision in this matter will have a

significant impact upon the quality of

life in small suburban and rural

communities throughout the United States.*

1. The "Hill-Link Minority Report" was

. cited by this honorable Court in

Kaplan v. California, 413 U.S. 115,

at 120 n.4 (1973); Paris Adult

Theatre I. v. Slaton, 413 U.S. 49,

at 59 n.7 and n.8 (1973).

/ oth, parties are orwarding lerters con-

B £ .

aeaetly to the ating © _

*

4

SUMMARY OF ARGUMENT

te

Amicus initially argues that the

police power is the constitutional

source for the ordinance - that this

power is a broad one in the Zoning

Area and extends to many values

deserving of protection including

family values, youth values, morals

and the prevention of neighborhood

deterioration, all of which affect

the "Quality of Life" in the community.

It then goes on to show that certain

types of exclusionary zoning have been

upheld by this Court and that many courts

have held that not all commercial uses

need be accommodated in a community if

the ones accommodated at locations within

the community are reasonably related to

the immediate needs of its inhabitants,

are not arbitrary, and the other important

-_—

5

needs of the residents can be accommodated

in the neighboring communities or areas,

viz., the so called "Community at Large”.

Amicus opines that the appellant should

have the burden of proving that these

other needs are not substantially met in

that Community at Large. Finally, Amicus

points out that the trier of the fact has

determined at the trial level that the

ordinance is a valid exercise of the

police power.

oe

Amicus further contends that the

restraint here is a content neutral time,

place, and manner restraint. As such, it

does not Violate the First heandneint.

While at first blush the ordinance does

not appear to deal with time, place, and

manner, the effect is such when we

examine its restrictions in relation to

6

the "Community at Large’. Amicus

concludes that under such circumstances

the rationale of Young v. American Mini

Theatres is dispositive of arguments

based on infringement of First Amendment

rights.

7

ARGUMENT

Be

THE ORDINANCE OF THE BOROUGH OF

MOUNT EPHRAIM IS A REASONABLE

AND CONSTITUTIONAL EXERCISE OF

THE POLICE POWER.

A. The police power is the

constitutional source

for Mount Ephraim’ s

consng Ordinance Section

Zoning ordinances, to be valid,

"Must find their justification

in some aspect of the police

power, asgerted for the public

welfare."

B. The police power utilizing

zoning is broad; it

includes various values

summed’ up in the phrase

“Quality of Life™.

The concept of the police power is

broad. As Justice Powell has noted:

"One-half century ago this

Court broadly sustained the

Za Euclid v. Ambler Rea Co. .

8

power of local municipalities

to utilize the then relatively

novel concept of land-use

regulation in order to meet

effectively the increasing

apon the quality of tite of"

elr citizens."3

The United States Supreme Court has

often noted the broad reach of the police

power:

"An attempt to define its

reach or trace its outer limits

is fruitless, for each case must

turn on its Own facts...

"Public safety, public health,

morality, peace and quiet, law

and order - these are some of

the more conspicuous examples

of the traditional application

of the police power to

municipal affairs. Yet they

merely illustrate the scope of

the power and do not delimit

| eek

"It is within the power of

the legislature to determine

that the community should be

beautiful as well as healthy,

spacious as well as clean,

well-balanced as well as

3. Young v. American Mini Theatres,

427 i S. 50, 73 (1976), concurring

opinion of Justice Powell.

9

carefully patrolled.''4

It has also noted that the police power

"Is not confined to elimination of

filth, stench, and unhealthy places.

It is ample to lay out zones where

family values, youth values, and the

blessings of quiet seclusion and

clean air make the area a sanctuary

for people."5

An additional rationale for the

application of the police power was

given in the concurring opinion of

Justice Powell in Young v. American

Mini Theatres®:

"The purpose of preventing the

deterioration of commercial neigh-

borhoods was certainly within the

concept of the public welfare that

defines the limits of the police

power."

In addition, Justice Stevens stated

for the majority in Young v. American

4. Berman v. Parker, 348 U.S. 26, 32-33 (1954).

5. Village of Belle Terre v. Boraas,

: ae © 4).

6. 427 U.S. 50, 75 (1976).

10

Mini Theatres’:

"The city's interest in

attempting to preserve the

quality of urban life is one that

must be accorded high respect."

In Agins v. City of Tiburon,® this

Court, in upholding a residential

zoning restriction challenged as an

unconstitutional taking in violation

of the Fifth and Fourteenth Amendments

said:

"The specific zoning regulations

at issue are exercises of the

city's police power to protect

the residents of Tiburon from

the ill-effects of urbanization.

Such governmental purposes

long have been recognized as

legitimate,"

Finally, in Euclid v. Ambler Realty

Co.,2 the Court made the foilowing

comments on the right of the community

#0 427 U.S. 50, 71 (1976).

8. U.S. _, 65 L.Ed. 2d 106, 112

(1980).

9. 272 U.S. 365, 386-387 (1926).

ll

to preserve its own character:

"With the great increase and

concentration of population,

problems have developed, and

constantly are developing,

which require, and will

continue to require, additional

restrictions in respect of the

use and occupation of private

lands in urban communities."

C. Certain types of exclusionary

zoning have been upheld

previously by the Supreme

Court.

In Euclid v. Ambler Realty Co.,

supra, a zoning ordinance was upheld

by the United States Supreme Court which

excluded from certain zones all industrial

establishments. The Court said

"The exclusion is in general

terms of all industrial

establishments...The

restrictive provisions of the

ordinance in this particular

may be sustained upon the

principles applicable to the

broader exclusion from

residential districts of all

business and trade structures...

"(Euclid's] governing

authorities, presumably

representing a majority of its

12

inhabitants and voicing their

will, have determined, not that

industrial development shall

cease at its boundaries, but

that the course of such

development shall proceed

within definitely fixed lines.''10

D. Many courts have held

that not all commercial

uses need be accommodated

at localities within the

community if the ones

accommodated are

reasonably related to

the immediate needs of

the inhabitants and

other needs may be

accessible in the

"community at large."

In Valley View Village v. Proffet, +1

the Sixth Circuit upheld a single use

type zoning ordinance, saying:

"Traditional concepts of

zoning envision a municipality

as a self-contained community

with its own residential,

business and industrial areas.

It is obvious that Valley View,

Ohio, on the periphery of a

10. 272 U.S. 365, 388-389 (1926).

ll. 221 F.2d 412, 418 (6th Cir. 1955).

13

large metropolitan center,is

not such a self-contained

community, but only an

adventitious fragment of the

economic and social whole. We

cannot conclude as a matter

of law that an ordinance which

places all of the area of such

a villageinto a residential

district is per se arbitrary

and unreasonable, with no

substantial relation to the

public health, safety, morals

or general welfare. It would

appear contrary to the very

purposes of municipal planning

to require a village such as

Valley View to designate some

of its area for business or

industrial purposes without

regard to the public need for

business or industrial uses.

The council of such a village

should not be required to

shut its eyes to the pattern

of community life beyond the

borders of the village itself.

We think it is not clearly

arbitrary and unreasonable

for a residential village to

pass an ordinance preserving

its residential character, so

long as the business and

industrial needs of its

inhabitants are supplied by

other accessible areas in

the community at large."

Similarly, in McDermott v. Village

14

of Calverton Park, }2 a zoning ordinance

was challenged which did not (with minor

exceptions) provide for commercial uses

and limited the use of land to one-

family dwellings. The Court noted:

"There can be no doubt that

the desired rezoning would not

benefit any resident of the

village except plaintiff. This

for the reason that the

services likely to be offered

in the proposed shopping

center are already available

a short distance away."

In Reynolds v. Barrett, 13 the court

had before it a zoning ordinance of a

primarily residential community. In

ruling that the ordinance was generally

valid, the court said that the City of

Piedmont

"Ts entirely surrounded by

the City of Oakland in which

12. 454 S.W.2d 577, 583 (Mo. 1970).

13. 12 Cal. 2d 244, 249 (1938).

15

are located many business

houses which maintain frequent

and adequate delivery service

to all parts of Piedmont...

The people of the City of

Piedmont have shown a

determined effort to keep

their city a residential

city. This they have the

legal right within

constitutional limits, to do."

Finally, in Cadoux v. Planning &

Zoning Commission, 14 the Connecticut

Supreme Court upheld a zoning ordinance

limiting land use to residential and

farming uses throughout the municipality.

The Court said:

"The town of Weston is on

the periphery of other larger

metropolitan centers."

The situation of the Borough of

Mount Ephraim is similar to these cases

in which the challenge to the exclusionary

zoning ordinances of small communities

14. 162 Conn. 425, 429, cert. denied

408 U.S. 924 (1972).

16

were challenged. Mount Ephraim is a

community of limited size. 19 Nothing

indicates that live entertainment of

the type respondents seek to bring in

is not available in a neighboring

location. Mount Ephraim could exclude

all commercial uses but has chosen to

exclude only certain uses. It has

chosen to be less exclusive than the

ordinances upheld above.

Valley View and Belle Terre tell us

that Mount Ephraim has the right under

its police power to preserve its

residential character so long as the

business and industrial needs of its

inhabitants are supplied by other

15. The Court could and should take

judicial notice of the New Jersey

statute (1926 N.J. Laws Chapter 82),

setting forth the boundaries of

Mount Ephraim; cf. Lamar v. Micou,

114 U.S. 218, 223 (1885).

17

accessible areas in the community at large.

E. The trial court found

that Mount Ephraim's

zoning ordinance was

a reasonable exercise

of the zoning power.

Judge Deighan, in the trial de novo

in the Camden County Court, found that

the ordinance was a reasonable exercise

of the police power:

"There has been no distinction

without reason by the

Municipality and... the

permitted uses under the

Zoning Ordinance is a

reasonable exercise of

police power and .-- the

Zoning Ordinance is not

directed to any infringement

on the constitutionally

protected rights. Live

entertainment is simply not

a permitted use in any

establishment...."

The cases establish that the rule

of reasonableness is applied to land-use

restrictions:

16. Petitioner's Brief for Certiorari,

Appendix, 12a.

18

"If the validity of the

legislative classification

for zoning purposes be

fairly debatable, the

legislative judgment must

be allowed to control...

The reasons are sufficiently

cogent to preclude us from

saying, as it must be said

before the ordinance can be

declared unconstitutional,

that such provisions are

clearly arbitrary and

unreasonable, having no

substantial relation to

the public health, safety,

morals, or general welfare."1/

Examination of the uses permitted by

Section 99-15B of the ordinance shows

that these uses are reasonably related to

the normal needs of the inhabitants of

the Borough of Mount Ephraim and that

their delimitation is not arbitrary. The

ordinance satisfies the Borough's needs

while protecting its residents ''from the

17. Euclid v. Ambler Realty Co. ‘

272 U.S.365, 305 35571936); see also

Village of Belle Terre v. Boraas,

416 U.S. 1, & (1974).

19

ill-effects of urbanization," to use

this Court's phrase in Agins, supra.

F. Conclusion

The Borough of Mount Ephraim, in

permitting only certain uses, has acted

with due regard to the public needs and

with due regard for the lack of public

need for permitting the location of uses

not permitted within its limited

boundaries. The burden of proof that

these needs are not met in surrounding

communities should be on the appellant.

Zoning Ordinance Section 99-15B

represents a legitimate exercise of the

zoning power.

+e

THE BOROUGH OF MOUNT EPHRAIM

ZONING ORDINANCE IS A TIME,

PLACE, AND MANNER RESTRICTION.

It is also submitted that Mount

Ephraim's zoning ordinance is a content-

neutral, time, place, manner restriction

20

as was approved by the Court in Police

Department of Chicago v. Mosley, 18 in

the context of a picketing ordinance.

As such, it does not violate the Equal

Protection Clause of the Fourteenth

Amendment. Although the Mosley

ordinance was struck down, the Court

made the following comment on valid

time, place, and manner restrictions:

"We have continually

recognized that reasonable

"time, place and manner'

regulations of picketing

may be necessary to further

significant governmental

interests."

The Mosley Court has specified,

however, that such restrictions must

be content-neutral:

"But, above all else, the First

Amendment means that

government has no power to

18. 408 U.S. 92, 98 (1972).

21

restrict expression because

of its message, its ideas, its

subject matter, or its content...

Our people are guaranteed the right

to express any thought, free

from government censorship.

The essence of this forbidden

censorship is content control..."19

~The Mount Ephraim Zoning Ordinance,

Section 99-15B, is obviously from its

wording part of an overall planned

commercial land-use scheme. As such, it

is

"Not directed to the control

of specific land uses because

of their potentiality for

offense or harm, but toward

the location of land uses

within the community

regardless of their lack of

nuisance proclivities, based

upon the needs and gharacter

of the community."

The Borough of Mount Ephraim does

not discriminate on the basis of the

49.

20.

408 U.S. 92, 95-96 (1972).

A.H. Rathkopf, 2

The Law of Zonin

and Planning, Para. 17.02 (3]

(4th ed. 1980),

22

content of speech. It is directed to

land-use in a community of limited size.

Young v. American Mini Theatres2l

is directly applicable to the situation.

Substitute the "Community at Large"

concept for the City of Detroit and

"Live Nude Dancing" for "Adult Bookstore"

and one can readily say with Mr. Justice

Stevens that

"There is no claim that the

distributors or exhibitors of

adult films are denied access

to the market or, conversely,

that the viewing public is

unable to satisfy its

appetite for sexually explicit

fare. Viewed as an entity, the

market for this commodity is

essentially unrestrained."

The Young Court also points out that

the protection of such activities is less

important to society than the protection

afforded speech generally:

21. 427 U.S. 50, 62 (1976).

23

"What is ultimately at

stake is nothing more than

a limitation on the place

where adult films may be

exhibited. ''22

Justice Powell In Young summarizes

his position by saying:

"I view the case as presenting

an example of innovative land-

use regulation, implicating

First Amendment concerns only

incidentally andto a limited

extent.''23

22. 427 U.S. 50, 70-71 (1976).

Ze. Sar U8. BO, -73, 12976).

24

CONCLUSION

For the foregoing reasons, the

judgment below should be affirmed. The

Borough of Mount Ephraim Zoning Ordinance

Section 99-15B is a valid exercise of the

police power which does not violate the

First Amendment.

DATED: December 29, 1980

Respectfully submitted,

fem,

ia Re

Anthony H. Atlas

261 Madison Avenue

New York, N.Y. 10016

Counsel for

Morality in Media, Inc.

Paul J. McGeady

Terence Carroll

of Counsel