Petition for Writ of Certiorari — Chez Sez III Corp. v. Township of Union
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
= CV) r tue |
Sl-1102 DEC 19 1991
OFFICE GF THE CLERK
No. 4 iiiicmmaiuaiedeaail
In The
Supreme Court of the United States
—
October Term, 1991
CHEZ SEZ III CORP., a corporation of the State of New Jersey,
and JACK CHESNER,
Petitioners,
VS.
TOWNSHIP OF UNION, a political subdivision of the State of
New Jersey, and SALVATORE J. MAURO, Construction Official
of the Township of Union, in his official capacity,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
LEWIS H. ROBERTSON
c= VANS, OSBORNE & KREIZMAN
Attorneys for Petitioners
180 White Road
Little Si!tver, New Jersey 07739
(908) 741-9550
1442
Jntx *NJ (908) 257-6850(800) 2 APPEAL *NY (212) 840-4640°MA (€17) 542-1114
AUPrinter DC (202) 783-7288*PA (215) 925-6500°USA (800) 5 APPEAL
rinters,iuc.
QUESTION PRESENTED FOR REVIEW
Whether the unreviewed administrative interpretation of an
ambiguous provision of a municipality’s zoning ordinance by the
municipality’s Zoning Board of Adjustment is sufficient te ‘‘settle’’
an issue of state law for Pullman abstention purposes where the
Zoning Board of Adjustment has been specifically delegated
responsibility for giving authoritative interpretations of local
zoning Ordinances by the New Jersey Legislature. That is, whether,
in these circumstances, an administrative interpretation of a facially
ambiguous ordinance will remove the ambiguity for Pullman
purposes.
i
TABLE OF CONTENTS
Page
Question Presented for Review .............c.cccee08, i
Vemie OF COMRUIRS ois ive csv ckeeenee eee eee ii
Vanes Of CRMIOM . is ciaccd eee ee ii
Opensoms TORO. ...s 6-005 ence ee ee ee ees 2
statement Of JuieGiGliORh. osc iieynce ssc cuss ueeeunan 2
Statutes and Ordinances Involved ..................... 2
Statement of the Case i... 0220 cnet ee deen ee 4
A. Nature of the Action and Jurisdiction........... 4
B. The Video Viewing Booth Dispute.............. 4
C. The Reins BEGG. cc.) s45 eee 7
Reasons for Grawting the WEE... i565 cs ccne aes eeees 9
Conclusion ..... 66 60k0s00 0b eee ee 23
TABLE OF CITATIONS
Cases Cited:
—
Anderson v. Babb, 632 F.2d 300 (4th Cir. 1980) ........ 23
ul
Contents
Page
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. ___.,
oles eeu eye ka ee ene 21
Batterton v. Francis, 432 U.S. 416 (1977).......... 14, 19, 20
Beigenwald v. Fauver, 882 F.2d 748 (3rd Cir. 1989)..... 4
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
EE BE RE 9 2 Re 15, 16, 17
Chez Sez III Corp. v. Township of Union, et al., 945 F.2d
a a and ig ay kk Oa ea 2
Cherney v. Zoning Bd. of Adj., 221 N.J. Super. 141 (App.
a Se Ge a em 18, 20
Dick v. New York Life Ins. Co., 359 U.S. 437 (1959)
(ts ta aT eR 10
East Wind Realty, Ltd. v. Board of Adjustment of Township
of Wall, 218 N.J. Super. 412 (App. Div. 1987) ..... 8
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ........ 11
Georgevich v. Strauss, 772 F.2d 1078 (3rd Cir. 1985).... 23
Gibson v. Berryhill, 411 U.S. 564 (1973)............... 22
es eee, ee Ose. SO CIDR E) ow ice tee ew 11, 12
Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480
EE Oe he 17
iv
Contents
Page
Ivan Allen Co. v. United States, 422 U.S. 617 (1975)
CORRS LON BRN ee PLT Oe Cry Sk Pere 10
Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S.
Se sc ay a eee a Va ea ass Vee ew ane 12
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..... 12
Martin v. Occupational Safety and Health Review Comm’n,
comin MEU cacumnae AEE tee Es RET GEES c cece ies 14, 15
Middlesex County Ethics Comm. v. Garden State Bar Ass’n,
— RSS MG.) ee eae rey re 21, 22
National Labor Relations Bd. v. United Food and
Commercial Union Workers, 484 U.S. 112 (1987)
Fe See er aoe CT EE Ck MS EE a ee 17
National City Lines, Inc. v. LLC Corp., 687 F.2d 1122 (8th
Ce SE On Coe re cece Cees ee eh e CTR KES A Tee ree 23
Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc.,
ET Gey ee EE CUE aR Ge eer hes eee oe Oe 21
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496,
Ge 5. Ch Ges. Ge hc es Te CRE bch ose wows eaen
Someeag MEP Note lea i re og geen LO Rea laetgr 8, 9, 10, 11, 19, 22, 23
Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909)
Contents
Terminiello v. Chicago, 337 U.S. 1 (1948).............. 1]
United Services Auto. Ass’n v. Muir, 792 F.2d 356 (3rd Cir.
University of Tennessee v. Elliott, 478 U.S. 788 (1986)
er rer ee er 20, 21, 22
chine wap ek a Rae e4 DUES £4000 eee ae een eee 19, 20
bed dcala nace nkee apse CONV Ss ae Sea een 15, 16, 17
Statutes Cited:
S$ U.S. © Fb CRM ooo eve nwa eeces peng kee sentences 13
p Bie tome Be. |) ner reer rer rr re tr 2
y Bik tem Br. |) weere rrr fey 4
28 U.S.C. § 1360eNd) ae 4). nw. ce ee cv cceter enue ay
G2 VB POE oc cs ccc secede shan sae oe 4
Administrative Procedure Act, ch. 324, 60 Stat. 237, Section
NGG CIDGD 0. g cn cvcwescsccaveledersssser eee 13, 14
Federal Food, Drug and Cosmetic Act, Section 346 ....16, 17
Immigration and Naturalization Act, Section 243(h)..... 17
vi
Contents
Page
Refugee Act of 1980, Section 208(a)................... 17
6.5.5. ai, CORSE og sik ca belek ek OE ees 2
ee eS rere reer Tr Tere er 2, 6, 19
United States Constitution Cited:
eS eee eee te er re ere 7
Rules Cited:
Supsethe Coutt Tah OE Ce 6 6.5 i a ieee eee 10
New Jersey’s Rules Governing Civil Practice Rule 4:69-6(b)(3)
Tere ee Se ee a ee ee ee oe ae et we ee ee he et ol Se Se ye el me oe Ne Oe ee es at OT Sg
Other Authorities:
Address of Chief Justice Vincent before American Bar
Association, Sept. 7, 1949, 69 S. Ct. v, vi..........
Restatement (Second) of Judgments § 83, p. 269 (1982)
reese RP oe RE KEE SHSE KCABRABRE EDA SKE SGAAR SSDS EI OE SS EOS Ee eS
4K. Davis, Administrative Law Treatise Section 21.9, p. 78
CS Te. SO okie cc can cone cenawee vias eee
Township of Union Land Development Ordinance, § 200
eo PET ee eer ee Tee ee reer ee
Township of Union Land Development Ordinance, § 605
ae ee se se ee ee ee ee ee ee et oe ee ee ee ee ee St ee ee ey ee ee
19
10
21
—
21
vil
Contents
Page
Township of Union Land Development Ordinance, § 613.1!
an ee ae a a a a a ee ee oe ee ek ee Re ee
APPENDIX
Appendix A — Opinion, Chez Sez III Corp., et al. v.
Township of Union, Etc., et al., 945 F.2d 628 (3rd Cir.
SUED bu Ku Se ne Resa n enh aeed eee vakaneweavecen te ees
Appendix B — Opinion, Chez Sez III Corp., et al. v.
Township of Union, Etc., et al., Civil No. 90-3882,
October 17, 1990 (Unpublished)................. pop
Appendix C — Resolution of Interpretation of Board of
Adjustment of the Township of Union, In Re: Chez Sez
III Corp., for an Interpretation to Interpret Whether
Viewing Booths Constitute a Change from Retail, on
Premises Located at 1521 Route 22, Block 1806, Lot 10,
Union, New Jersey, Calendar No. 2475, September 5,
19a
No.
In The
Supreme Court of the United States
October Term, 1991
CHEZ SEZ III CORP., a corporation of the State of New Jersey,
and JACK CHESNER,
Petitioners,
VS.
TOWNSHIP OF UNION, a political subdivision of the State of
New Jersey, and SALVATORE J. MAURO, Construction Official
of the Township of Union, in his official capacity,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
To the Honorable, the Chief Justice and Associate Justices of
the Supreme Court of the United States:
Chez Sez III Corp. and Jack Chesner, the petitioners herein,
pray that a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Third Circuit entered in
tN
the above-entitled case on September 24, 1991.
OPINIONS BELOW
The September 24, 1991 opinion of the court cf appeals,
whose judgment is here sought to be reviewed, is reported at 945
F.2d 628 (3rd Cir. 1991) and is reprinted in the Appendix to this
Petition at page la. The prior opinion of the United States District
Court for the District of New Jersey is unreported. The district
court’s oral opinion of October 17, 1990, is reprinted in the
Appendix at page 19a.
STATEMENT OF JURISDICTION
The judgment of the court of appeals was entered on
September 24, 1991. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1).
STATUTES AND ORDINANCES INVOLVED
This case involves provisions of New Jersey’s Municipal Land
Use Law and of a Land Development Ordinance promulgated
according to its authority.
N.J.S.A. 40:55D-69 provides, in pertinent part:
Upon the adoption of a zoning ordinance, the-_
governing body shall create, by ordinance, a zoning
board of adjustment...
N.J.S.A. 40:55D-70 provides, in pertinent part:
The board of adjustment shall have the power to:
b. Hear and decide requests for interpretation
of the zoning map or ordinance... .
Township of Union Land Development Ordinance
Definitions provides, in pertinent part:
SHOP, RETAIL A building or part thereof
in which or from which a service is rendered
directly to the ultimate consumer... .
STORE, RETAIL A building or part thereof
in which or from which merchandise is sold directly
to the ultimate consumer.
Any word or term not defined herein shall
be used with the meaning of standard usage... .
Township of Union Land Development Ordinance
provides, in pertinent part:
The schedule entitled, ‘‘Schedule of Limitations,
Land Development Ordinance, Township of
Union, Union County, New Jersey,’’ is hereby
made a part of this ordinance.
605 SCHEDULE OF LIMITATIONS, LAND
DEVELOPMENT ORDINANCE, TOWNSHIP
OF UNION, UNION COUNTY, NEW JERSEY
... BB & BC BUSINESS
2. Stores & Shops for Retail Sales of Goods &
Services .
5. Motion Picture Theaters . .
§
S
200
605
Township of Union Land Development Ordinance § 613.1.
provides, in pertinent part:
Prohibited Uses. All uses not expressly permitted
by this Ordinance are prohibited ....
STATEMENT OF THE CASE
A. Nature of the Action and Jurisdiction
Chez Sez III Corp. and Jack Chesner, its shareholder, have
brought this action pursuant to 42 U.S.C. § 1983, to obtain a
determination with respect to the constitutional validity of certain
provisions of the Township of Union Land Development
Ordinance as they have been interpreted by its Zoning Board of
Adjustment and applied to them, and for related relief. Jurisdiction
in the trial court was founded on 28 U.S.C. § 1343(a)(3) and (4).
Jurisdiction in the circuit court was founded on 28 U.S.C.
§ 1292(a)(1) and upon Biegenwald v. Fauver, 882 F.2d 748 (3rd
Cir. 1989).
B. The Video Viewing Booth Dispute
For some time since before 1985, the property now occupied
by Chez Sez in Union Township, New Jersey, has been located
in a business zone as defined by the Township’s Land Development
Ordinance. According to that same ordinance, stores and shops
for retail sales of goods for the rendition of retail services are
uses specifically permitted in a business zone. For retail uses, the
ordinance requires one off-street parking space for each 200 square
feet of gross floor area. Because of the size and configuration
of the property and the size and location of the building on it,
it is impossible to provide parking spaces which comply in number,
dimension and configuration as required by the ordinance.
However, the improvements on the property have existed and have
been used continuously for retail uses since before the effective
date of the ordinance provisions regarding required numbers and
configuration of off-street parking. Accordingly, the use of the
property for retail sales and services is allowed, notwithstanding
its nonconformity with respect to requirements for off-street
parking.
Chez Sez leased the property from its owner for a term
beginning on February 2, 1986. At the time it entered into that
lease, it intended to utilize some or all of the space for the retail
sale and rental of video cassettes, video playback and video
recording equipment and to offer, in addition, brief, individual
viewings of video presentations in coin-operated, free-standing,
booth-type facilities. It also intended to sell books, magazines
and novelties.
After making some modifications to the interior and receiving
a Certificate of Occupancy from the Township’s Construction
Official, Salvatore J. Mauro, Chez Sez assembled a total of eleven
(11) pre-fabricated booths in a room on the first floor of its leased
premises, equipped them (or most of them) with coin-operated
television monitors, and, on about September 1, 1986, commenced
‘to do business. The videos able to be viewed in the booths were
the same as those offered for sale or rental.
Shortly, a dispute arose between the Township — specifically
Mr. Mauro and Chez Sez. The Township took the position that
the use of a portion of the premises for the exhibition of videos
in booths constituted that portion of the premises as something
other than a retail sales or service use requiring a separate
application for a Certificate of Occupancy. Chez Sez’s position
was that the exhibition of videos in its booths was simply a specie
of a retail service according to the expansive definition of ‘‘retail
shop’’ found in the Land Development Ordinance. Ultimately,
Chez Sez made application under protest for a Certificate of
Occupancy for the use of a portion of its premises for the
exhibition of videos in its booth-type facilities. Mauro denied the
application, giving as his reason that the use constitutes ‘‘. . .
a change of use due to booth-type facility from retail sales to
place of amusement with insufficient parking... .”’ (*‘Place of
amusement”’ is not a use defined or mentioned in the Township’s
Land Development Ordinance.)
Chez Sez filed an appeal from Mauro’s determination with
the Township’s Zoning Board of Adjustment, as well as an
application for an interpretation of certain provisions of the
Township’s Land Development Ordinance. The appeal and
application for interpretation were filed with the Board of
Adjustment according to the authority of N.J.S.A. 40:55D-70(a)
and (b). On August 1, 1990, Chez Sez appeared with counsel to
prosecute its appeal and application for an interpretation.
Following the introduction of Chesner’s sworn testimony and the
proffer of several documents in evidence, and after hearing
argument by Chez Sez’ counsel, counsel for the Board advised
as follows:
. . . [W)hile the sale, service and rental of tapes
and equipment does meet the criteria of a retail
sales service use in Our judgment, the addition of
video booths renders the use violative of the
Township’s Zoning Ordinance.
First, the video booth ‘‘use’’, which is distinct
from the store sales, rental and service functions,
does not fall within any use category set forth in
the Code as permitted within the Business C Zone
in which the subject use is located.
In this regard, any use not expressly permitted
by our ordinance is prohibited, and I refer you
to section 613-I.
Upon the conclusion of the proceedings, the Board
unanimously approved a motion in which it adopted the
interpretation of its counsel.
At the next regular meeting of the Board — on September
5. 1990 — it unanimously approved a formal resolution in which
it adopted the interpretation of its counsel. On September 17,
1990, Mauro subscribed to an order addressed to the Chief of
Police mandating action to require the use and operation of the
video booths on Chez Sez’ premises to cease and desist. Without
notice to Chez Sez, later that day, Mauro and several members
of the Township’s poiice force visited Chez Sez’ premises. They
removed several patrons from the booths and constructed a
plywood wall at the entrance of the video-viewing room to prevent
the further use of the booths. From and after that date, Chez
Sez has discontinued the use of that portion of its premises in
the booths themselves.
C. The Rulings Below
Chez Sez and Chesner filed a complaint in the District Court
of New Jersey on September 28, 1990, seeking to have the court
declare the Board’s interpretation of the Land Development
Ordinance and its application to Chez Sez unconstitutional and
seeking related relief. The district court determined, sua sponte
and without benefit of briefs or argument, to abstain. It found
that a prohibition against all showing of video films in private
booths in any part of the Township would, indeed, be
unconstitutional and a violation of Chez Sez’ First Amendment
rights. As the circuit court noted:
_. . the district court also concluded the Board’s
interpretation of the [Land Development]
Ordinance lacked rationality. It predicted that a
New Jersey court would most likely interpret the
{Land Development] Ordinance to find that video
booths are a ‘‘theater use’’ under the Ordinance.
Although theaters are not permitted on this
particular property, because it is not large enough
to include the requisite number of off-street
parking spaces for theater uses, the video booths
would, if classified as a theater use, be permitted
elsewhere in the Township. The district court thus
concluded that Chez Sez’s First Amendment claim
would be eliminated if the booths were found to
be a ‘‘theater use’’ under the Ordinance.
Since the district court found that the [Land
Development] Ordinance was amenabie io a
construction by the state courts which would
obviate the need for federal adjudication of a
constitutional issue, it decided to abstain pursuant
to the doctrine articulated in Railroad Comm’n
of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct.
643, 8S L.Ed. 971 (1941), in order to allow the
state court to rule in the first instance upon the
proper interpretation of the [Land Development]
Ordinance.
Appendix at page 5a-6a. Accordingly, Chez Sez’ action was
administratively dismissed. '
|. The district court’s conciusion that the Board’s interpretation lacked
rationality because of its prediction that a New Jersey court would most likely
interpret the Land Development Ordinance to find that the video booths are
a theater use does not square with applicable New Jersey law. The precise issue
was considered in East Wind Realty, Ltd. v. Board of Adjustment of Township
of Wall, 218 N.J. Super. 412, 416 (App. Div. 1987), where the cour: said:
Although no definition of indoor theater is provided in the
Chez Sez appealed to the court of appeals. Noting that three
special circumstances are generally prerequisite to the application
of the Pullman abstention doctrine, Chez Sez urged that all three
were absent. With specific reference to the first of the three, Chez
Sez urged that there are no uncertain issues of state law underlying
the federal constitutional claim brought in federal court as the
interpretation of the Township’s Land Development Ordinance
by its Board of Adjustment is an authoritative construction.
The circuit court agreed, though, with the district court, that
all three of the ‘‘special circumstances’’ were present and that
the case thus fell within the general ambit of Pul/man. The circuit
court found, and Chez Sez agrees, that the language of the
ordinance is ambiguous on its face. The circuit court acknowledged
that if an otherwise ambiguous statute has been authoritatively
construed by the state courts, abstention would not be appropriate.
It held, though, that notwithstanding the definitive interpretation
by the Board of Adjustment, an administrative interpretation of
a facially ambiguous statute will not remove the ambiguity for
Pullman purposes. The circuit court concluded, therefore, that
the first requisite for consideration of Pul/man abstention was
present — an unsettled issue of state law.
REASONS FOR GRANTING THE WRIT
The circuit court, in finding that the three Pullman **special
circumstances’’ existed in this case, said:
If an otherwise ambiguous statute has been
authoritatively construed by the state courts,
(Cont'd)
Ordinance, a coin-operated movie machine is not. by any
reasonable construction of the ordinance, an indoor theater
for the audience’s viewing.
10
abstention would not be appropriate. [citation
omitted] The sections of the Union Township
[Land Development] Ordinance here at issue have
never been interpreted by the New Jersey courts.
Although the Board of Adjustment has made a
definitive ruling interpreting these sections of the
Ordinance, ‘‘an administrative interpretation of
a facially ambiguous statute will not remove the
ambiguity for Pullman purposes.’’ [citation
omitted] We therefore conclude that the [Land
Development] Ordinance presents unsettled issues
of state law, and that the first of the three Pul//man
factors has thus been met.
Appendix at page 10a-1la.
While no court has yet held that an administrative
interpretation may ‘‘settle’’ an issue of state law for Pullman
purposes, the determination of the circuit court is inconsistent
with the decisions of this Court which has, increasingly, treated
administrative determinations, in proper circumstances, as
equivalent to determinations made in the course of judicial
proceedings. A determination by this Court that an administrative
interpretation of an ambiguous law will, in appropriate
circumstances, settle state law for Pullman purposes, ‘‘will have
importance far beyond the particular facts and parties involved
here.’’ See, e.g., Address of Chief Justice Vincent before American
Bar Association, September 7, 1949, 69S. Ct. v, vi; Dick v. New
York Life Ins. Co., 359 U.S. 437, 452-454 (1959) (Frankfurter,
J., dissenting). The question decided by the circuit court was
decided in a way in conflict with the principles esiablished by
applicable decisions of this Court and is an important question
of federal law which has not been, but should be, settled by this
court. Supreme Court Rule 10 1.(c). See /van Allen Co. v. United
States, 422 U.S. 617, 623-624 (1975) (certiorari granted on claimed
‘conflict in principle’’ and ‘‘because of the importance of the
issue’),
At one time, federal courts looked to the state’s highest court
tor determinative interpretations of state law. See Siler v. Louisville
& Nashville R.R. Co., 213 U.S. 175 (1909) (in absence of ruling
trom state’s highest court, federal court may, in exercise of its
pendent jurisdiction, ignore decision of a state administrative
agency and make its own ruling on proper interpretation of a
state statute). Subsequently, in Erie R.R. Co. vy. Tompkins, 304
U.S. 64 (1938), the Supreme Court mandated that a federal court
look further than a state’s highest court for guidance as to the
proper construction of a state statute. Within ten (10) years of
the decision in Erie, it became clear that even the interpretation
of a trial court of a provision of state law is binding on a federal
court. See Terminiello v. Chicago, 337 U.S. | (1948) (construction
placed upon city ordinance in state court’s instructions to jury
in prosecution for its violation is a ruling on state law that is
binding on the Supreme Court of the United States as though
the precise words had been written in the ordinance itself).
The interpretation which this Court considered binding in
Terminiello was that of a court of limited jurisdiction — a
municipal court of the City of Chicago. The municipal court’s
jury instructions had been reviewed and approved by an Illinois
appellate court. However, this Court has made plain that review
by an appellate court of a trial court’s interpretation of state law
is unnecessary for that interpretation to be binding on federal
courts. In Houston v. Hill, 482 U.S. 45] (1987), this Court
reviewed the constitutionality of a municipal ordinance making
it unlawful to interrupt police officers in the performance of their
duties. The City urged that Pul/man abstention was appropriate,
as there were limiting constructions readily available to the state
courts that would eliminate the ordinance’s claimed overbreadth.
In ruling on the City’s contention that the state courts had not
12
had an opportunity to construe the ordinance, this Court first
noted that it did not consider the ordinance ambiguous. The Court
added that, in any event, only the state appellate courts appeared
to have lacked an opportunity to construe the ordinance and
It is undisputed that Houston’s Municipal Courts,
which have been courts of record in Texas since
1976, have had numerous opportunities to narrow
the scope of the ordinance. [footnote omitted]
There is no evidence that they have done so.
[footnote omitted] In fact, the city’s primary
position throughout this litigation has been ‘‘to
insis[t] on the validity of the ordinance as literally
read.’’ [citation omitted]... .
Houston v. Hill, 482 U.S. 451, 469-70 (1987).
It seems a very short step from the acceptance of the
unreviewed interpretation of a municipal ordinance by a municipal
court to the acceptance of the unreviewed interpretation of an
ordinance or regulation by an administrative body, in proper
circumstances, charged with enforcing the ordir:ance or regulation
in question. That an administrative interpretation should be
accepted as settling an ambiguous ordinance or regulatory
provision seems all the more logical when one considers the
development of the law concerning judicial review of agency
interpretations.
Before the evolution of administrative agencies, the
interpretation of a statute was considered to present a question
of law, and it was exclusively and ‘‘*. . . emphatically the...
duty of the judicial department to say what the law is.’’ Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).* Much has
5
2. And see Japan Whaling Ass'n v. American Cetacean Soc’y, 478 U.S.
221 (1986).
13
happened since 1803. Administrative agencies have been created
and the importance of their roles has grown steadily. Because,
of course, they were created to administer statutory schemes, they
must regularly interpret provisions of those statutes, as well as
regulations promulgated according to the authority of those
statutes. Agency interpretations of statutes and their own
regulations are frequently subject to judicial review. While,
originally, the standard for review may have been plenary, the
judiciary has shown greater and greater deference to agency
interpretations. For example, this Court, in Skidmore v. Swift
& Co., 323 U.S. 134 (1944), held that the views of the
Administrator of the United States Department of Labor’s Wage
and Hour Division were deemed to provide guidance to the courts
and to have power to persuade. While the Administrator’s
construction of a statute was not to have controlling effect on
the courts, neither did the courts write on the clean slate that
would exist without the prior construction and that might be
expected in plenary review.
Skidmore was succeeded two years later by the enactment
of the Administrative Procedure Act. In Section 10(e) of the
Original Act, Congress provided that:
So far as necessary to decision and where presented
the reviewing court shall decide all relevant
questions of law, interpret constitutional and
statutory provisions, and determine the meaning
or applicability of the terms of any agency action.’
3. Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946). For a current
version of the Administrative Procedure Act, see 5 U.S.C. § 706 (1982) (‘To
the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action.’’).
14
While it may have appeared that the evolving doctrine of
deference enunciated in Skidmore was displaced by the
Administrative Procedure Act, it subsequently became clear that
this Court was still inclined to defer to administrative
interpretations. In Batterton v. Francis, 432 U.S. 416 (1977), the
Court considered an interpretation by the Secretary of Health,
Education and Welfare of a provision of the Social Security Act.
The precise question was whether a person was ‘‘unemployed’’
if he was out of work as a result of a labor dispute. This Court
noted that Congress had expressly delegated to the Secretary the
power to determine what constitutes unemployment. It said, in
language which is particularly pertinent to the issue presented by
this Petition:
In a situation of this kind, Congress entrusts to
the Secretary, rather than to the courts, the primary
responsibility for interpreting the statutory term.
In exercising that responsibility, the Secretary
adopts regulations with legislative effect. A
reviewing court is not free to set aside those
regulations simply because it could have interpreted
the statute in a different manner.
The regulation at issue in this case is therefore
entitled to more than mere deference or weight,
it can be set aside only if the Secretary exceeded
his statutory authority or if the regulation is
‘*arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”’
Batterton v. Francis, 432 U.S. 416, 425-26 (1977) (citations
omitted).*
4. And see Martin v. Occupational Safety and Health Review Comm'n,
(Cont'd)
15
Seven years later, this Court eroded even further the court’s
authority to displace an agency’s construction of statutory
provisions with its own. In Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), this Court
considered whether the statutory term ‘‘stationary source’’ could
be construed to include an entire industrial plant — a construction
placed on the term by the Environmental Protection Agency. This
Court granted the Agency view controlling weight — not mere
deference — and did so without finding an explicit delegation
to the Agency of authority to construe the statute. Instead, it
noted the need for administrative agencies to fill the gaps left
in statutes, left either implicitly or explicitly by Congress. Where
gaps were left explicitly, the Agency was expressly delegated the
authority to construe, and the construction would be given
controlling weight. Gaps could also be left implicitly. In such a
case, this Court held, ‘‘. . . a court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.’’ Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 844 (1984) (footnote omitted).
This Court made administrative interpretations even less
vulnerable to review in Young v. Community Nutrition Inst., 476
(Cont'd)
US. ___, 113 L. Ed. 2d 117 (1991). In Martin, the Court considered
the question of which of two conflicting but reasonable administrative
interpretations of a facially amgiguous OSHA regulation was to be preferred.
This Court held that a reviewing court may not prefer the reasonable
interpretations of the OSHRC to the Secretary of Labor. Many of the reasons
given for deference to the Secretary’s interpretation — the Secretary is legislatively
vested with the power to authoritatively interpret the regulations; the Secretary
is in the best position to reconstruct the purpose of the regulations; the Secretary
routinely comes into greater contact with regulatory problems and applications
of the regulations — are sound reasons for according deference to the reasonable
interpretation of the Board of Adjustment.
16
U.S. 974 (1986). In Young, the Court considered a provision found
in the Federal Food, Drug, and Cosmetic Act. Section 346 of
the Act provided that when a poisonous or deleterious substance
required in the production of food or which could not be avoided
by good manufacturing practice, ‘‘... the Secretary shall
promulgate regulations limiting the quantity therein or thereon
to such extent as he finds necessary for the protection of public
health.’’ The issue was whether, when poisonous or deleterious
substance was unavoidable in food, Section 346 required the
Secretary to promulgate regulations in every such case, or to
promulgate regulations only if he found them necessary for the
protection of public health. The FDA construed the regulation
to mean that the Secretary was to make a determination as to
whether it would require limiting regulations. If the Secretary
decided the regulations were necessary, the Secretary would then
set tolerances. That is, the provision did not require regulations
in every instance where poisonous or deleterious substances in
food were unavoidable. This Court, although agreeing with the
Court of Appeals that Community Nutrition Institute’s contrary
reading of the statutory provision was more logical, determined
that the FDA’s construction was a permissible reading. It noted
that, according to Chevron:
. if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency’s answer is based on
a permissible construction of the statute... . [A]
court may not substitute its own construction of
a Statutory provision for a reasonable
interpretation made by the administrator of an
agency. [citation omitted]
Young v. Community Nutrition Inst., 476 U.S. 974, 980 (1986),
quoting Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-844 (1984). The Young Court
17
found the FDA’s interpretation of Section 346 to be sufficiently
rational to preclude it from substituting its own judgment for
that of the Secretary.
It should be noted that Young is to be distinguished from
Chevron. In Chevron, the resolution of the ambiguity required
the Agency’s technical expertise and a need to resolve conflicting
policies. In Young, the ambiguity by no means involved the
interpretation or the application of some technical term requiring
the expertise of an administrative agency to provide the proper
construction. Rather, the question presented in Young was one
of pure statutory construction requiring no arcane expertise.
Accordingly, the Young Court found an implicit delegation to
the Agency to construe provisions of an enabling act involving
a technical ambiguity or need to resolve a policy conflict. The
net effect of Young seems to be something close to a grant of
controlling weight to any agency interpretation of a statute that
it administers.‘ It would appear that the New Jersey courts,
5. Neither /mmigration & Naturalization Serv. v. Cardoza-Fonseca, 480
U.S. 421 (1987), nor National Labor Relations Bd. v. United Food and
Commercial Workers Union, 484 U.S. 112 (1987), are to the contrary. In
Cardoza-Fonseca, the INS had interpreted two provisions according to which
an otherwise deportable alien can seek relief. According to Section 243(h) of
the Immigration and Naturalization Act, an alien is relieved from deportation
if he can show that his ‘‘life or freedom would be threatened.’* Section 208(a)
ot the Refugee Act of 1980 provides discretion to the Attorney General to grant
asylum to an alien who will not or cannot return home ‘‘because of persecution
or a well- founded fear of persecution . . . .’ The INS interpreted two provisions
to be equivalent. This Court observed that the question of whether two standards
are the same is a quite different one from the question of interpretation that
arises in each case in which the agency applies either of those standards to a
particular set of facts. It held the question of whether the Congress intended
the two criteria to be identical to be a pure question of statutory construction
for the courts to decide. In United Food and Commercial Workers Union, the
Court reiterated that pure questions of statutory construction are for the courts
(Cont'd)
a
18
although they express it differently, have much the same view
of their role in reviewing agency determinations. As one New
Jersey appellate court said in the context of a review of an
interpretation of a municipality’s Board of Adjustment:
A threshold issue is the standard of review
appropriate to test the Board’s determination... .
There were no disputed facts, and the Board’s
determination was not reached upon a choice
between factual contentions. For that reason, the
rule that we uphold the factual determinations of
an administrative agency if they are supported by
sufficient credible evidence is not apposite. Cf.
Rowatti v. Gonchar, 101 N.J. 46, 51 (1985). Also,
what we are reviewing is not an exercise of the
Board’s expert discretionary judgment, as in the
case of the grant or denial of a variance, see
Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268
(1965), but rather its reading of an ordinance and
its application to an undisputed state of facts. See
Jantusch v. Borough of Verona, 41 N.J/.Super. 89,
196 (Law Div. 1956), aff'd 24 N.J. 326 (1957).
Thus, we are guided by the traditional rule that
the interpretation of legislative enactments is a
judicial function, and not a matter of
administrative expertise. Mayflower Securities v.
Bureau of Securities, 64 N.J. 85, 93 (1973)... .”’
Cherney v. Zoning Bd. of Adj., 221 N.J. Super. 141, 144-145
(Cont'd)
and that where the interpretation question involves the application of a standards
to a particular set of facts, the courts must respect the interpretation of the
agency.
19
(App. Div. 1987). And see Urban v. Planning Bd., 238 N.J. Super.
105 (App. Div. 1990).
At issue in the trial court below was the meaning of several
provisions of Union Township’s Land Development Ordinance
as applied to an array of facts. The New Jersey Legislature,
according to N.J.S.A. 40:55D-70(b), specifically delegated the
responsibility to the Township’s Board of Adjustment to hear
and decide requests for interpretarion of the Township’s Zoning
Ordinances. In the exercise of that authority, the Board, at a public
hearing, took testimony from Chez Sez’ representative and received
and considered documentary evidence. Chez Sez, represented by
its counsel, commented for the benefit of the Board on the
application of the relevant provisions of the Land Development
Ordinance to the facts as they were established by the evidence
before the Board. The Board received on the record in the same
proceeding the opinion of its counsel and after some brief
discussion resolved to adopt its counsel’s opinion. In a subsequent
proceeding, the Board’s action was memorialized by a formal
written resolution read to and adopted by the Board. A verbatim
record of both proceedings was made. New Jersey’s Rules
Governing Civil Practice Rule 4:69-6(b)(3) allows judicial review
of the Board’s actiou on the record made by the Board by means
of an action in lieu of prerogative writ brought within forty-five
(45) days from the date of publication of notice of that action.
Under these circumstances, and given the limited scope of
the New Jersey court’s review of the Board’s interpretation, there
would seem to be no point in requiring the New Jersey courts
to place their impramatur on the Board’s interpretation in order
to ‘‘settle’’ the otherwise ambiguous ordinance for Puliman
purposes. Indeed, were the action taken by the Board that of a
federal agency, Batterton would allow the Board’s interpretation
to be set aside only if the court found that it exceeded the Board’s
Statutory authority for its acts or its interpretation was ‘‘arbitrary,
20
capricious, an abuse of discretion or otherwise not in accordance
with law.’’ Batterton v. Francis, 432 U.S. 416, 425-26 (1977).
There was ample reason to believe that the New Jersey courts
would treat the Board’s interpretation in the same fashion. See,
e.g., Cherney v. Zoning Bd. of Adjustment, 221 N.J. Super. 441
(App. Div. 1987). And see Urban v. Planning Bd., 238 N.J. Super.
105 (App. Div. 1990).
Indeed, this Court has held in other circumstances that
administrative determinations and proceedings are sometimes
entitled to be considered on the same footing as judicial
determinations and proceedings. A strong analogy may be drawn
between this case and University of Tennessee v. Elliott, 478 U.S.
788 (1986). There, the Court held that when a state agency acting
in a judicial capacity resolves disputed issues of fact properly before
it which the parties have had an adequate opportunity to litigate,
federal courts must give that agency’s fact finding the same
preclusive effect to which it would be entitled in the state’s courts
(with certain exceptions not relevant here). Such a policy, this
Court said:
. . serves the value underlying general principles
of collateral estoppel: enforcing repose. [footnote
omitted] This value, which encompasses both the
parties’ interest in avoiding the cost and vexation
of repetitive litigation and the public’s interest in
conserving judicial resources [citation omitted] is
equally implicated whether fact finding is done by
a federal or state agency.
Having federal courts give preclusive effect
to the fact finding of state administrative tribunals
also serves the value of federalism.
[T]his [value] is served by giving
21
-
preclusive effect to state administrative fact-finding
rather than leaving the courts of a second forum,
state or federal, free to reach conflicting results.
[footnote omitted] ....
University of Tennessee v. Elliott, 478 U.S. 788, 798-799 (1986).
And see Astoria Federal Savings & Loan Ass’n v. Solimino, 501
U.S. ___, 115 L. Ed. 2d 96 at 104 (1991).
It has been said that:
To the extent that administrative adjudications
resemble courts’ decisions — a very great extent
— the law worked out for courts does and should
apply to agencies.
4+K. Davis, Administrative Law Treatise, Section 21.9, p. 78 (2d
Ed. 1983), quoted in University of Tennessee v. Elliott, 478 U.S.
788, 798 n.6 (1986). According to the Restatement (Second) of
Judgments § 83, p. 269 (1982):
Where an administrative forum has the essential
procedural characteristics of a court, ... its
determinations should be accorded the same
finality that is accorded the judgment of a court.
The importance of bringing a legal controversy to
conclusion is generally no less when the tribunal
is an administrative tribunal than when it is a court.
Id. And see Ohio Civil Rights Comm’n v. Dayton Christian
Schools, Inc., 477 U.S. 619, 627 (1986) (Younger v. Harris
abstention doctrine held to apply where school brought federal
suit to enjoin proceeding by state agency investigating alleged sex
discrimination in school’s hiring and termination decisions);
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457
22
U.S. 423 (1982) (administrative proceedings to discipline lawyer
initiated by state ethics committee were ‘‘judicial in nature’’ and
would not be enjoined by federal courts); Gibson v. Berryhill,
411 U.S. 564, 576-77 (1973) (administrative proceedings looking
toward the revocation of a license to practice medicine may, in
proper circumstances, command the respect due to court
proceedings).
Chez Sez clearly had ‘‘an adequate opportunity to litigate’’
its interpretation question before the Board of Adjustment. The
issues were framed by a formal written request for an
interpretation, just as issues in judicial proceedings are framed
by pleadings. Chez Sez was allowed to present testimony and
documentary evidence and was subject to cross-examination by
members of the Board. Both Chez Sez and the Board were
represented by counsel. The Board made factual findings after
hearing argument by Chez Sez’ counsel, applied legal principles
to the facts arrayed by the evidence and rendered its decision in
a subsequent forma! proceeding. A verbatim record of both
proceedings was made and Chez Sez was entitled to appeal from
the Board’s determination. As noted earlier, the Board’s rendition
of its interpretation was done according to an express statutory
grant of jurisdiction. The Board’s interpretation, then, was
distinctly court-like behavior. There is no reason why, under the
circumstances, its unreviewed interpretation should not be entitled
to the same deference as unreviewed findings of fact made by
the administrative law judge in University of Tennessee v. Elliott.°
6. Petitioner’s research reveals no federal court decision which is in conflict
with the conclusion it reaches here. Compare United Services Auto. Ass’n v.
Muir, 792 F.2d 356 (3rd Cir. 1986). In Muir, the court found the relevant
provisions of the Pennsylvania insurance Act to be ambiguous. Although they
had been interpreted by the Commissioner, the court found the Commissioner’s
administrative interpretation insufficient to remove ambiguity for Pullman
purposes. The interpretation did not arise, however, in the context of an
(Cont'd)
23
Accordingly, petitioners urge that, to promote repose and
the principles of federalism, where an independent administrative
agency acting according to a statutory grant of authority in a
judicial or quasi-judicial capacity provides an interpretation of
state law and that construction leaves no ambiguity, even though
its determination is unreviewed, that provision of state law should
be considered ‘‘settled’’ for Pu//man abstention purposes.
CONCLUSION
Wherefore, petitioners respectfully pray that a writ of
certiorari be granted to review the judgment of the United States
Court of Appeals for the Third Circuit filed in this action on
September 24, 1991. In the event that the petition is granted,
petitioners pray that the judgment of the court below be reversed,
that the cause be remanded and that the court below be directed
to enter an order reversing the determination of the district court
(Cont'd)
administrative hearing in which United Services Auto Ass’n had a ‘“‘full and
fair opportunity’’ to influence the outcome. In Georgevich v. Strauss, 772 F.2d
1078 (3rd Cir. 1985), the court was influenced in declining to abstain on Pullman
grounds by the fact that counsel for the defendant state court judges had
conceded an interpretation of the statute in question which would obviate the
need for decision of federal constitutional questions attempted to be presented
by the plaintiffs. In National City Lines, Inc. v. LLC Corp., 687 F.2d 1122
(8 Cir. 1982), the court found Pul/man abstention inappropriate as no unsettled
question of state law was presented. Accordingly, the Director’s and the
Commissioner’s interpretation of the Insurance and Takeover Acts, as well as
the Williams Act, was irrelevant. In Anderson v. Babb, 632 F.2d 300 (4th Cir.
1980), the court acknowledged that, ‘‘Indeed, there may be circumstances in
which a federal court would be bound by the administrative interpretation of
a state agency.’’ The court found, however, that the statutory provision in
question was utterly ambiguous and had been given conflicting interpretations
by the administrative agency charged with enforcing it and the agency’s own
Executive Secretary-Director. Accordingly, the court found the circumstances
inappropriate for resort to an administrative interpretation.
24
to abstain and to administratively dismiss, to remand the cause
to the district court for a decision on the petitioners’ preliminary
injunction application, and for such other and further proceedings
as may be taken consistent with this Court’s opinion.
Respectfully submitted,
LEWIS H. ROBERTSON
EVANS, OSBORNE &
KREIZMAN
Attorneys for Petitioners
Dated: December 11, 199]
la
APPENDIX A — OPINION, CHEZ SEZ III CORP., ET AL.
V. TOWNSHIP OF UNION, ETC., ET AL., 945 F.2d 628
(3rd Cir. 1991)
Filed September 24, 1991
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 90-5912
CHEZ SEZ II] CORP.. a corporation of the
State of New Jersey: JACK CHESNER,
Appellants
vs.
TOWNSHIP OF UNION, a political sub-division
of the State of New Jersey: SALVATORE J.
MAURO, Construction Offictai of the Township
of Union. in his official capacity,
Appellees
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 90-3882)
Argued April 3, 1991
Before: MANSMANN and HUTCHINSON.
Circutt Judges, and
O'NEILL, District Judge.*
Filed September 24, 1991
* Honorable Thomas N. O'Neill. Jr. of the United States
District Court for the Eastern District of Pennsylvania, sitting
by designation.
a — :
2a
Appendix A
Lewis H. Robertson, Esq. (ARGUED)
Evans. Osborne & Kreizman
180 White Road
Little Silver, New Jersey 07739
COUNSEL FOR APPELLANTS
David B. Zurav, Esq. (ARGUED)
1460 Morris Avenue
P.O. Box 1471
Union, New Jersey 07208
COUNSEL FOR APPELLEES
OPINION OF THE COURT
O'NEILL, District Judge
Chez Sez III Corp. and its shareholder Jack
Chesner appeal from an interlocutory order of the
district court denying their motion for a
preliminary injunction and administratively
terminating their federal lawsuit pending the
resolution of state law questions by the New Jersey
state court. We find that abstention was proper
and that appellants are unlikely to prevail on the
merits of their suit. We will therefore affirm the
decision of the district court.
I.
The facts of this case are not in dispute.
Appellant Chez Sez III Corp. (“Chez Sez”) operates
an adult book and videotape store in Union
Township, New Jersey. Chez Sez sells adult books
and magazines, sundries, adult games and
novelties, adult videotapes, and videotape players.
In addition, it offers videotape player repair
3a
Appendix A
services and rentals of adult videotapes and
portable video cameras. Until September 17, 1990,
Chez Sez also provided private video presentations
in eight individual coin-operated booths. A
customer could enter one of the booths and, for
each quarter inserted, view one 90-second segment
of video film taken from Chez Sez’s stock of
videotapes. It is Union Township's termination of
the use of these booths which gives rise to this
dispute.
The property leased by Chez Sez for its retail
store is located in a “Business B” zoning district
as defined by the Union Township Land
Development Ordinance (“Zoning Ordinance” or
“Ordinance’). The Zoning Ordinance requires
varving numbers of off-street parking spaces
depending upon the use of the property. For retail
uses, one off-street parking space for each 200
square feet of gross floor area must be provided.
For theater uses, one space for every three seats
is required. The configuration of the property on
which Chez Sez is located makes it impossible to
provide the requisite number of parking spaces for
either of these uses. However, since the property's
use as a retail establishment predates the effective
date of the Zoning Ordinance provisions regarding
off-street parking, the use of the property for retail
sales and _ services has been allowed as a
nonconforming use with respect to the off-street
parking requirements.
Union Township has taken the position that the
video viewing booths installed by Chez Sez
constitute a new, non-retail use of the property.
On August 1, 1990, the Union Township Board of
Adjustment (the “Board”) held a hearing pursuant
to an application by Chez Sez and its shareholder
4a
Appendix A
Jack Chesner seeking an interpretation of the
Zoning Ordinance. The Board found that the video
booths did not constitute a retail use of the
property. Since customers could come in. view a
number of tapes and leave the premises without
purchasing or renting any merchandise from the
store, the Board found the video booths to be
separate and distinct from the store's sales, rental
and service functions. It concluded that the video
booths were more in the nature of an amusement
or movie theater use and thus were not permitted
as a retail use under the Zoning Ordinance.
The Board then went on to find that the video
booths did not constitute a theater use under the
Ordinance either, since the provisions of the
Zoning Ordinance dealing with theaters seemed to
contemplate only large, auditorium-type uses
rather than small private areas where individuals
could observe videos in complete privacy. The
Zoning Ordinance provides that any use not
specifically permitted under the Ordinance is
prohibited. The Board thus concluded that since
video booths are not a valid retail use or theater
use, the video booths operated by Chez Sez are
prohibited in all of Union Township.
On September 17, 1990, following the decision
of the Board, Union Township Construction Official
Salvatore Mauro and several police officers entered
the Chez Sez premises, evicted severa! patrons
from the video booths, and erected a plywood wall
at the entrance to the video viewing room to
prevent its further use. The video booths and the
portion of the store where they are located have
not been used since that time.
Sa
Appendix A
Il.
Chez Sez and Chesner filed a complaint in the
District Court of New Jersey on September 28,
1990, seeking to have the court: (1) declare the
Board's interpretation of the Zoning Ordinance
unconstitutional; (2) enjoin the Township from
enforcing the Ordinance (as interpreted by the
Board) against them; and (3) require Construction
Official Mauro to issue a certificate of occupancy
allowing Chez Sez to operate video viewing booths
on its current premises.
The district court found that a_ prohibition
against all showing of video films in private booths
in any part of the Township would be a violation
of Chez Sez's First Amendment rights. However,
the district court also concluded the Board's
interpretation of the Zoning Ordinance lacked
rationality. It predicted that a New Jersey court
would most likely interpret the Zoning Ordinance
to find that video booths are a “theater use” under
the Ordinance. Although theaters are not
permitted on this particular property, because it
is not large enough to include the requisite
number of off-street parking spaces for theater
uses, the video booths would, if classified as a
theater use, be permitted elsewhere in the
Township. The district court thus concluded that
Chez Sez's First Amendment claim would be
eliminated if the booths were found to be a
“theater use” under the Ordinance.
Since the district court found that the Zoning
Ordinance was amenable to a construction by the
state courts which would obviate the need for
federal adjudication of a constitutional issue, it
decided to abstain pursuant to the doctrine
6a
Appendix A
articulated in Railroad Comm'n of Texas v. Pullman
Co.. 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971
(1941), in order to allow the state court to rule in
the first instance upon the proper interpretation
of the Zoning Ordinance.
The district court also denied appellants’ request
for preliminary injunctive relief based on its
prediction that the Zoning Ordinance would be
interpreted to find that video booths were a
“theater use” under the Ordinance. Since Chez Sez
could constitutionally be prohibited from operating
a “theater” in this particular location, the district
court denied Chez Sez’s request for injunctive relief
and administratively terminated its lawsuit. Chez
Sez and Chesner then filed suit in the Superior
Court of New Jersey on October 26, 1990.
We have jurisdiction over the appeal from an
order administratively terminating a_ lawsuit
pending the resolution of state court proceedings.
28 U.S.C. § 1291; Biegenwald v. Fauver, 882 F.2d
748, 750 (3d Cir. 1989). In addition, we have
jurisdiction over the appeal from an interlocutory
order denying a preliminary injunction pursuant
to 28 U.S.C. § 1292({a)(1).
Ill.
In general. federal courts are bound to
adjudicate all controversies which are properly
before them. New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 491 U.S. 350, 109 S.Ct.
2506, 2512-13, 105 L.Ed.2d 298 (1989).
Abstention from the exercise of federal jurisdiction
is appropriate only under certain limited
circumstances, for abstention is “the exception,
not the rule.” Hawaii Housing Authority v. Midkiff.
467 U.S. 229, 236, 104 S.Ct. 2321, 2327. 81
7a
Appendix A
L.Ed.2d 186 (1984) (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800.
813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)).
However, when a federal court is presented with
both a federal constitutional issue and = an
unsettled issue of state law whose resolution might
narrow or eliminate the federal constitutional
question, abstention may be justified under
principles of comity in order to avoid “needless
friction with state policies.” Railroad Comm'n of
Texas v. Pullman, 312 U.S. at 500. This doctrine
is commonly referred to as “Pullman abstention.”
The first step in the Pullman analysis is to
determine whether three special circumstances
exist:
(1) Uncertain issues of state law underlying the
federal constitutional claims brought in federal
court:
(2) State law issues amenable to a state court
interpretation that would obviate the need for. or
substantially marrow, the scope of adjudication
of the constitutional claims:
(3) A federal court's erroneous construction of
state law would be disruptive of important state
policies.
D'lorio v. County of Delaware, 592 F.2d 681, 686
(3d Cir. 1978), overruled on other grounds,
Kershner v. Mazurkiewicz, 670 F.2d 440, 448 (3d
Cir. 1982) (in banc).
If the district court finds that all three of the
“special circumstances” are present, it must then
make a discretionary determination as to whether
abstention is in fact appropriate under the
circumstances of the particular case, based on the
8a
Appendix A
weight of these criteria and other relevant factors.
Id.
In reviewing a= district court's abstention
decision, we apply two separate standards of
review. The district court's determinations as to
the first two “special circumstances”, that is,
whether state law is uncertain and whether state
law is amenable to a construction that would
obviate or narrow the constitutional issues
presented, are essentially legal decisions which are
to be reviewed de novo by this court. Id. However,
the district court's appraisal of the third factor,
that is, whether an erroneous decision of state law
by the federal court would disrupt important state
policies, is more discretionary in nature and thus.
if it ts adequately explained, will be accorded
greater deference by the appellate court. Id.
If we agree with the district court that all three
of the “special circumstances” are present and that
the case thus falls within the general ambit of
Pullman, “the remaining question is whether the
trial judge abused his discretion in weighing the
advantages and disadvantages of abstention and
deciding to invoke the Pullman doctrine.” Id.
(quoting Frederick L. v. Thomas, 578 F.2d 513, 517
(3d Cir. 1978)).
IV.
With these general principles in mind, we will
now consider the applicability of the Pullman
abstention doctrine to the circumstances of this
particular case. ,
The federal constitutional claim made by
appellants here is that the Zoning Ordinance, as
construed by the Board, totally prohibits private
video viewing booths from all parts of Union
9a
Appendix A
Township and thus impermissibly infringes on
appellants’ constitutional right to freedom of
expression under the First Amendment.' See, e.g.,
Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101
S.Ct. 2176, 68 L.Ed.2d 671 (1981). On its face,
the Union Township Zoning Ordinance does not
specifically prohibit video viewing booths from the
Township. The Ordinance instead sets forth the
types of uses which are permitted in the various
zoning districts of Union Township, then states
that “[ajll uses not expressly permitted by this
ordinance are prohibited.” Ord. Sec. 613.1. Since
the Board found that video viewing booths did not
constitute a permitted use under the Ordinance,
it concluded that such booths were prohibited in
all districts of Union Township.
There are only two classifications of uses
permitted in Union Township into which the video
viewing booths could conceivably fall: (1) “Stores
and Shops for Retail Sales of Goods and Services’,
and (2) “Motion Picture Theaters”. Ord. Sec. 605.
A “Retail Store” is defined under the Ordinance as
“[a] building or part thereof in which or from which
merchandise is sold directly to the ultimate
consumer.” Ord. Sec. 200. Similarly, a “Retail
Shop” is defined as “{a] building or part thereof in
which or from which a service is rendered directly
to the ultimate consumer.” Ord. Sec. 200. Motion
picture theaters are not defined under the
Ordinance.
1. In applying the Pullman doctrine, we need not reach the
issue of whether such a prohibition would, in fact, constitute
a violation of Chez Sez’s First Amendment rights.
10a
Appendix A
A. Uncertainty of State Law
For Pullman to apply, the state or local law
underlying the federal constitutional issue must be
uncertain. D’Iorio, 592 F.2d at 686. Our initial
inquiry focuses on whether the language of the
Ordinance is “clear and unmistakable.” Hughes v.
Lipscher, 906 F.2d 961, 965 (3d Cir. 1990). Chez
Sez takes the position that a ‘retail shop” (as
defined by Ord. Sec. 200) can include video
viewing booths since they provide “a service...
directly to the ultimate consumer.” However, the
Board found, and the district court agreed, that
since customers could come in and view several
videotapes without ever purchasing or renting any
merchandise from the store, the video booths were
separate and distinct from the store's sales, rental
and service functions, and thus did not constitute
a retail use of the property. Since we find that
either interpretation constitutes a _ plausible
construction of the Ordinance, the language of the
Ordinance is ambiguous on its face.
Similarly, since the term ‘motion picture
theater” is not defined under the Ordinance at all.
it is unclear whether the term encompasses only
large, auditorium-style uses, as the Board found,
or whether it could instead be read more broadly
to also include private video viewing booths of the
type involved here. The term “motion picture
theater”, as it is used in the Ordinance, is also
ambiguous on its face.
If an otherwise ambiguous statute has been
authoritatively construed by the state courts,
abstention would not be appropriate. United Servs.
Auto. Ass'n v. Muir, 792 F.2d 356, 361 (3d Cir.
1986), cert. denied, 479 U.S. 1031 (1987). The
lla
Appendix A
sections of the Union Township Zoning Ordinance
here at issue have never been interpreted bv the
New Jersey courts. Although the Board of
Adjustment has made a_ definitive ruling
interpreting these sections of the Ordinance, “an
administrative interpretation of a _ facially
ambiguous statute will not remove the ambiguity,
for Pullman purposes.” Id. at 362. We therefore
conclude that the Zoning Ordinance presents
unsettled issues of state law, and that the first of
the three Pullman factors has thus been met.
B. Effect of State Law on the Constitutional Claim
The second factor to be considered in the
Pullman analysis is whether the Ordinance is
amenable to an interpretation by the state courts
that would obviate the need for or substantially
narrow the scope of the constitutionai issues.
D'Iorio, 592 F.2d at 686. We are not concerned
with whether there is “a bare, though unlikely,
possibility that state courts might render
adjudication of the federal question unnecessary’,
but rather whether the Ordinance is “obviously
susceptible of a limiting construction”. Hawaii
Housing, 467 U.S. at 237 (emphasis in original).
Appellants’ constitutional claim is that the
Zoning Ordinance. as construed by the Board,
totally prohibits video viewing booths in all parts
of Union Township in violation of appellants’ First
Amendment right to freedom of expression.
However, the state court might conclude that
private video viewing booths constitute a “motion
picture theater” use under the Zoning Ordinance.
If so, Chez Sez could operate its video viewing
booths in any district of Union Township where
l2a
Appendix A
theaters are permitted. and the basis for its
constitutional claim would be eliminated.”
This case presents exactly the type of state law
question that usually triggers Pullman abstention,
where “the unsettled issue of state law principally
concern(|s|] the applicability of the challenged
statute to a certain person or a defined course of
conduct, whose resolution in a particular matter
would eliminate the constitutional issue and
terminate the litigation.” Baggett v. Bullitt, 377
U.S. 360, 376-77, 84 S.Ct. 1316, 1325, 12 L.Ed.2d
377 (1964). The second Pullman factor has thus
been met.
C. Effect of an Erroneous Federal Court Decision of
State Law
In evaluating the third Pullman factor, whether
an erroneous decision by the federal court would
be disruptive of important state policies, this court
will generally defer to the district court's appraisal
if it is “adequately explained.” D'Iorto, 592 F.2d at
686. The district court found that “zoning
regulations implicate important state policies” and
that an “erroneous(|] constru([ction of] the Zoning
Ordinance in this case .. . would be disruptive of
those policies.” App. at 112. We agree. Land use
issues are an area of particularly local concern
which involve questions of both state and
municipal law. As Justice Marshall stated in
Village of Belle Terre v. Boraas, 416 U.S. 1, 94
2. Appellants make no claim that Union Township could not
constitutionally restrict the location of video viewing booths
(and other “theaters”) within the Township, but only that a
complete ban on this medium of expression throughout the
Township would violate their First Amendment rights.
13a
Appendix A
S.Ct. 1536, 39 L.Ed.2d 797 (2974) (dissenting on
other grounds):
I am in full agreement with the majority that
zoning is a complex and important function of
the State. It may indeed be the most essential
function performed by local government, for it is
one of the primary means by which we protect
that sometimes difficult to define concept of
quality of life . . . Our role is not and should
not be to sit as a zoning board of appeals.
416 U.S. at 13. Since we find that there is an
adequate basis for the district court’s conclusion
that land use issues implicate the type of important
state policies for which Pullman abstention is
appropriate, the third Pullman prerequisite has also
been met.°
D. Equitable Considerations
Having found that all three of the “special
circumstances” necessary to invoke the Pullman
doctrine are present in this case, the only question
remaining is whether the district court abused its
discretion by abstaining in this case. We have held
that “absent significant reasons to the contrary,
abstention is generally proper once it [has been]
ascertained that the threshold ‘special
3. Our decision in Heritage Farms, Inc. v. Solebury Township.
671 F.2d 743 (3d Cir.). cert. denied, 456 U.S. 990 (1982). is
not to the contrary. Heritage Farms was a civil rights action
involving allegations of conspiracy on the part of local zoning
officials. In that case, we found that the “mere presence of
land use issues” was not enough to “trigger a mechanical
decision to abstain”, id. at 748, where there were no unsettled
issues of state law to be resolved. Here, however, we are
clearly presented with an unsettled issue of land use law.
l4a
Appendix A
circumstances’ have been fulfilled.” D’Iorio, 592
F.2d at 691-92.
Chez Sez argues that the potential deprivation
of its First Amendment rights during the pendency
of the state court adjudication is of such
importance as to render abstention inappropriate
in this case. However, while the Supreme Court
has been “particularly reluctant to abstain in cases
involving (facial challenges to the _ First
Amendment,” City of Houston v. Hill, 482 U.S. 451,
468, 107 S.Ct. 2502, 2513, 96 L.Ed.2d 398 (1987)
(emphasis added), an “as applied” challenge
presents different considerations. When a facial
challenge is involved. abstention is generally not
appropriate because “extensive adjudications,
under a variety of factual situations, [would be
required to bring the statute] within the bounds
of permissible constitutional certainty.” Baggett v.
Bullitt. 377 U.S. 360, 378, 84 S.Ct. 1316. 12
L.Ed.2d 377 (1964), a result which would be “quite
costly where the vagueness of a state statute may
inhibit the exercise of First Amendment freedoms.”
Id. at 379.
Such concerns, however, are not implicated
where an “as applied” challenge to the First
Amendment is made. We are presently faced with
a challenge that the Union Township Zoning
Ordinance is unconstitutional. not on its face, but
only as it was interpreted by the Union Township
Board of Adjustment and applied to the appellants.
Where the state courts can, in a single proceeding.
determine the bounds of the state statute by
choosing between one or_ several alternative
meanings of the statute. abstention has been held
proper even where a First Amendment challenge
is concerned. See, e.g.. Babbitt v. United Farm
15a
Appendix A
Workers, 442 U.S. 289. 308, 99 S.Ct. 2301. 2314,
60 L.Ed.2d 895 (1979). The mere fact that the
Ordinance is being challenged on First Amendment
grounds is not enough to automatically render
Pullman abstention inappropriate in this case.
In sum, we find that the district court did not
abuse its discretion in abstaining pursuant to the
Pullman doctrine. We will therefore affirm the
district court’s decision to abstain in this case.
IV.
In addition to abstaining in this action, the
district court denied appellants’ motion for
injunctive relief... We review the denial of a
preliminary injunction for an abuse of discretion,
error in applying the law, or a clear mistake in
considering the proof. Instant Air Freight Co: v.
C.F. Air Freight, Inc., 882 F.2d 797, 799 (3d Cir.
1989).
A preliminary injunction is an “extraordinary
remedy~ which will be granted only if the moving
party can demonstrate:
(1) the reasonable probability of eventual success
in the litigation and (2) that the movant will be
irreparably injured pendente lite if relief is not
granted. Moreover, while the burden rests upon
the moving party to make these two requisite
showings, the district court “should take into
account, when they are relevant, (3) the
4. Although the district court decided to abstain in this
action. it was still obliged to consider appellants’ request for
preliminary relief. New Jersey-Philadelphia Presbytery of the
Bible Presbyterian Church v. New Jersey State Board of Higher
Education, 654 F.2d 868. 887 (3d Cir. 1981).
l6a
Appendix A
possibility of harm to other interested persons
from the grant or denial of the injunction, and
(4) the public interest.”
Instant Atr Freight Co. v. C.F. Air Freight, Inc., 882
F.2d at 800 (quoting In re Arthur Treacher's
Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.
1982)). In applying this standard, the district court
concluded that a preliminary injunction was not
warranted in this case because appellants were
unlikely to succeed on the merits of their suit.
We agree. The Board concluded, and the district
court agreed, that the video booths installed by
Chez Sez were not a retail use of its property. Even
though Chez Sez’s premises could not conform
with the parking requirements of the Ordinance,
appellants had been permitted to continue using
the property for retail purposes because the
property was used for retail purposes before the
parking requirements were enacted. See N.J.S.A.
40:55D-68. However, under New Jersey law, a
nonconforming use cannot be expanded to include
other types of uses:
our courts have held that an_ existing
nonconforming use will be permitted to continue
only if it is a continuance of substantially the
same kind of use as that to which the premises
were devoted at the time of the passage of the
zoning ordinance. In that regard nonconforming
uses may not be enlarged as of right except
where the change is so negligible or insubstantial
that it does not warrant judicial or administrative
interference. Where there is doubt as to whether
an enlargement or change is substantial rather
than insubstantial, the courts have consistently
17a
Appendix A
declared that it is to be resolved against the
enlargement or change.
Belleville v. Parrillo’s, Inc., 83 N.J. 309. 316, 416
A.2d 388, 391-92 (1980) (citations omitted). Thus,
Chez Sez may not use the property for any use
other than retail sales and services. Since the
district court found that video booths were not a
retail use, it concluded that appellants were
prohibited, under New Jersey law, from operating
video booths on this particular property.
Appellants argue that their constitutional rights
have been violated because the Board interpreted
the Ordinance as prohibiting video booths in all of
Union Township. The district court, however,
found the more plausible interpretation of the
Ordinance to be that video booths are permitted
in any zone where theaters are permitted. Under
this interpretation, while Chez Sez could not
operate a “theater” in its present location, since
that would be an expansion of a nonconforming
use, it could operate such theaters elsewhere in
the Township.
Appellants, however, are not seeking to operate
elsewhere in Union Township. The only relief they
seek is to be able to operate video booths on this
particular property. Appellants never attempted to
operate video booths at another location nor did
they ever express any intent to do so. Thus, even
if the state court were to find that video booths
are permitted elsewhere in Union Township, as the
district court predicts, appellants would not be
entitled to the relief they are seeking.
In sum, the district court found that video
booths are likely to be permitted elsewhere in
Union Township. The district court also found that
18a
Appendix A
Chez Sez was prohibited from operating video
booths on this particular property because New
Jersey law prohibits the expansion of a
nonconforming use. Under such circumstances,
the district court's refusal to grant a preliminary
injunction allowing appellants to operate video
booths in their present location was neither an
abuse of discretion nor an error of law. We will
therefore affirm the order of the district court
denying appellants’ motion for a _ preliminary
injunction.
V.
We conclude that the district court properly
abstained pursuant to the Pullman doctrine, and
that the district court properly denied appellants’
motion for a preliminary injunction. We will
therefore affirm the decision of the district court.
A True Copy:
Teste:
Clerk of the United States Cot of Appeals
for the Third Circuit
19a
APPENDIX B — OPINION, CHEZ SEZ III CORP., ET AL.
V. TOWNSHIP OF UNION, ETC., ET AL., CIVIL NO. 90-3882,
OCTOBER 17, 1990 (UNPUBLISHED)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
Civil No. 90-3882
CHEZ SEZ III CORP., et al.,
Plainiffs,
TOWNSHIP OF UNION, etc., et al.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
OPINION
Newark, New Jersey
October 17, 1990
BEFORE: HONORABLE DICKINSON R. DEBEVOISE,
UNITED STATES DISTRICT JUDGE
APPEARANCES:
EVANS, OSBORNE & KREIZMAN,
BY: LEWIS H. ROBERTSON,
Attorneys for the Plaintiff
20a
Appendix B
DAVID B. ZURAV,
Attorney for the Defendants
Pursuant to Section 753 Title 28 United States Code, the
following transcript is certified to be an accurate record as taken
stenographically in the above entitled proceedings.
HOWARD A. PAPPAPORT
Official Court Reporter
[2] THE COURT: I’m going to put an opinion on the record
and I’m going to ask the opportunity to review it after it is
Originally transcribed, make any corrections that will be necessary,
and it can be filed and distributed.
Plaintiffs, Chez Sez III Corp. and its shareholder Jack
Chesner, seek an order preliminarily enjoining defendants
Township of Union and its Construction Official Salvatore J.
Mauro from enforcing the Township’s Land Development
Ordinance to the extent that it prohibits plaintiffs from the private
exhibition of videos to rental patrons in booth type, coin operated
facilities contained in plaintiff’s retail store located at 1521 Route
22, Union, New Jersey.
Findings of Fact
The facts are not in dispute.
Since before 1985, William Untracht has been the owner of
the premises in question. The property is located in a B zone
as defined by the Union Township Land Development Ordinance
2la
Appendix B
(herein referred to as the ‘‘Zoning Ordinance’ or the
‘‘Ordinance’’). Stores and shops for retail sales of goods and
services are permitted uses.
For such retail uses the Ordinance requires one off — street
parking space for each 200 square feet of floor area; for assembly
hall use the Ordinance requires one off-street parking space for
each 100 square feet of gross fioor area; for a theater use the
Ordinance requires one off-street parking [3] space for each three
seats.
Because of the size and configuration of the property and
the location of the improvements on it, it is impossible for the
premises in question to provide parking spaces-which meet the
requirements of the Ordinance. However, improvements on the
property have existed and have been used continuously for retail
Sales and service since before the effective date of the parking
requirements of the Ordinance, and consequently such use may
continue as a nonconforming use notwithstanding the failure to
meet the requirements.
On January 25, 1985 Untracht applied to the Township’s
Construction Official for a permit to alter its building in order
to divide an open space into three offices for sales units with toilets
for retail sales according to plans drawn by John P. DePalma.
Upon completion of construction an inspection was made and
a certificate of occupancy was issued on March 5, 1986.
In the meantime, on November 17, 1985 Untracht leased the
pertinent portion of the building to Chez Sez for a term
commencing February 8, 1986. According to plaintiffs it was Chez
Sez’ intent to use the premises for the retail sales of general interest
and adult books and magazines, sundries such as lotions, gels
22a
Appendix B
and the like, and adult games and novelties. In addition, according
to plaintiffs, Chez Sez intended to use some of the space for the
retail sales and rental of video cassettes [4] and video playback
and recording equipment and to offer to its customers brief
individual viewings of video presentations in coin-operated, free
standing, booth-type facilities.
The plans which had been submitted to the Township for
approval on January 25, 1985, did not disclose the free-standing
booths, and when Mauro inspected the premises prior to the
issuance of a certificate of occupancy on March 5, 1986 no booths
had been erected.
After occupying the premises and after issuance of a certificate
of occupancy, Chez Sez erected an eight feet high partition dividing
the western-most portion of the first floor of the leased premises
into two equal sections — a front and a rear section. In the rear
section Chez Sez assembled 11 prefabricated booths which were
not connected to the floor, ceilings or walls. Coin-operated
television monitors were placed in the eight western-most free-
Standing booths.
Chez Sez placed free-standing display racks and wall mounted
display racks and pegboards within the easternmost portion of
the first floor of the leased premises.
On or about September 1, 1986 Chez Sez commenced
business. It sold its adult products, and sold and rented a large
selection of adult videotapes. Customers were able to view adult
videos in eight of the free-standing booths. Each booth nad a
selection of offerings. Insertion of a quarter provided a customer
with a 90-second segment of a video film. [5] For eight quarters
a customer could enjoy a 12-minute segment.
23a
Appendix B
Mauro, as Construction Official, inspected the premises and
directed Chez Sez to remove the booths and to cease the viewing
operations. In essence his position was that the installation of
the booths did not conform with the certificate of occupancy and
in view of the expanded use of the premises the use was in violation
of the parking requirements of the Zoning Ordinance.
On December 8, 1986 Mauro signed a summons charging
Chesner with violating the Zoning Ordinance by adding a new
use with approval and for failure to obtain a certificate of
occupancy for a new use.
On March 8, 1987 the summons was dismissed by agreement
of the parties to permit plaintiffs to file a Superior Court action.
On July 28, 1987 plaintiffs filed a complaint in Superior Court
seeking a declaratory judgment that their challenged use of the
premises constitutes a retail use, or, alternatively, that the
exhibition of videos in the free-standing, booth-type facilities is
accessory to the sale, exchange and rental of video cassettes and
video playback and recording equipment and, in any event, their
use is not an assembly use. The complaint further alleged the
deprivation of plaintiffs’ civil rights and sought compensatory
damages pursuant to 42 U.S.C. Section 1983 and attorneys’ fees
pursuant [6] to 42 U.S.C. Section 1983.
On August 17, 1988 the parties to the state proceedings entered
into a ‘Stipulation of Dismissal of Plaintiffs’? Claims for
Compensatory Damages and Attorneys Fees pursuant to 42 U.S.C.
Section 1983 only and with prejudice as to same.’’
On November 18, 1988 the state court judge dismissed the
complaint for failure to exhaust administrative remedies.
24a
Appendix B
Specifically, he held that the two zoning questions which plaintiffs
raised should be decided in the first instance by the Board of
Adjustment pursuant to its statutory authority to hear and decide
appeals when it is alleged that an error has been made by the
officer charged with responsibility for enforcing a zoning
ordinance. N.J.S.A. 40:55D-70(a). On October 19, 1989 the
Appellate Division of the Superior Court affirmed the Law
Division decision.
Plaintiffs filed an appeal with the Union Township
Construction Board of Appeals. The appeal was heard on February
1, 1990. The Board held that plaintiffs were required to file an
application with the Board of Adjustment for a use variance, site
plan approval, interpretation of the Zoning Ordinance and/or
appeal from the decision of the Construction Official that there
was a change of use. The Construction Board of Appeals
confirmed fines in the amount of $7,500 which had been levied
against Chesner but agreed to withhold further fines upon the
plaintiffs completing an application and the filing to the [7] Board
of Adjustment.
In early February 1990 Chez Sez made application to the
Board of Adjustment pursuant to N.J.S.A. 40:55D-70a. The
application recited that Chez Sez had applied to the Construction
Official for a certificate of occupancy to use a portion of its
premises for exhibition of video presentations in free-standing
booths and that the Construction Official had declined to issue
the permit because: ‘‘Change of use to booth-type facility from
retail sales to place of amusement with insufficient parking under
707C1(1).”’
Chez Sez urged in its petition essentially that the proposed
use was a retail use within the meaning of the Zoning Ordinance
25a
Appendix B
and could be continued as a lawful non-conforming use.
Plaintiffs’ application was heard on August 1, 1990. On
September 5,1990 the Board of Adjustment rendered its decisions.
Its counsel, E. Robert Levy, Esquire, explained the rationale for
the Board’s action. He noted that the applicant’s attorney had
urged that viewing of the tapes was part and parcel of the retail
operations at Chez Sez. He siated that the Board had concluded:
‘*The video booth ‘use’ is in fact distinct from the store’s sales,
rental and service functions, and does not itself fall within any
use category set forth in the Land Use Ordinance as a permitted
use. In this regard, it should be noted that any use not expressly
permitted by our Ordinance is prohibited pursuant to Section
613-1."’
{8] To support its findings that the proposed use was not
retail in nature, Mr. Levy recited ‘‘The key fact here is patrons
can watch movies on the subject premises without purchasing or
renting a tape. They can watch as many of the videos as they
wish to without purchasing and there is no attempt whatsoever
to relate the observation or watching of a movie or a video to
its purchase or rental. There is no limitation in terms of the time
which the patron can spend watching a video or videos and there
is no control over that function. Therefore, patrons can come
into the subject premises, watch videos, and stay there virtually
for hours without being disturbed. This is clearly a movie or
amusement use and it is certainly not a retail sale or service use.
It is not an accessory use. It does not serve to assist the retail
sale. It is independent thereof and not permitted as indicated.’’
If Mr. Levy and the Board of Adjustment had stopped with
the finding that video booth facilities extended beyond normal
retail use as contemplated by the Zoning Ordinance, this case
26a
Appendix B
might not have arisen; or at least it would have less colorable
merit to it. Plaintiffs’ use of the premises for retail purposes does
not comply with the Zoning Ordinance because its parking facilities
are inadequate. Plaintiffs’ retail use is permissible only because
it is a non-conforming use predating the enactment of parking
requirements. It is hornbook law that a nonconforming use cannot
be expanded without [9] becoming subject to all the provisions
of the zoning law. In the present case there was an ample factual
record to support the Board’s conclusion that viewing videotapes
in booths erected in a retail store expands the retail use to an
entertainment use and thus constitutes an unlawful expansion of
a non-conforming use unless a variance were obtained. That was
ample grounds to affirm the decision of the Construction Official.
However, the Board, through Mr. Levy, went off on a
discussion of other provisions of the Zoning Ordinance. He
referred to provisions which permitted motion picture theaters
in Business B and Business C zones. As to parking provisions
he noted that the reference to parking for theaters classified them
with auditoriums, churches, arenas and similar uses, indicating
that the uses contemplated deal with large auditorium-type uses
where patrons sit together in public groupings. Mr. Levy stated
that ‘‘Plainly, video booths do not meet this type of criteria and
are, in truth, the antithesis of these types of uses since they are
small, very private areas for individuals to observe videos in
complete privacy. This use, therefore, in my judgment is, at the
very least, a form of motion picture use which is not permitted
in the Township because it does not fall in the movie picture or
motion picture use, that is, in fact, permitted.”’
Thus Mr. Levy and the Board of Adjustment have neatly
presented plaintiffs with the constitutional issue. They start with
the premise that what the Union Township Zoning [10] Ordinance
27a
Appendix B
does not permit it prohibits. There are only two permitted uses
which would fit plaintiffs video booth operation — i) retail use
and ii) theater use. The Board found that video booth operations
constituted entertainment use and therefore were not permitted
as a retail use. The Board found that video booth operations were
conducted on a small scale and in private and thus were not
permitted as theater use. The net effect of all this, plaintiffs
suggest, is to bar from all areas of Union Township video booth
entertainment since it is not specifically permitted by any provision
of the Zoning Ordinance.
To return to the unfolding of the events which led up to this
lawsuit: After the Board of Adjustment adopted the interpretation
of the Zoning Ordinance as expounded by its counsel on September
5, 1990 Construction Official Mauro ordered the Township’s
Police Chief to terminate the use and operation of plaintiffs’ video
booths. On September 17, 1990 Mauro and several police officers
evicted several patrons from the booths and constructed a plywood
wall at the entrance of the video viewing room to prevent its further
use.
The complaint states in a conclusory fashion: ‘‘The actions
taken by the Defendants Township of Union and Mauro were
[1 because of their distaste for adult fair (sic) and according to
a policy or custom of the Defendant Township of Union to limit,
discourage or foreclose altogether, within its jurisdiction, sexually
explicit communication expression.’’ At [11] the hearing on the
application for the preliminary injunction defendants’ attorney
alluded to undesirable sexual activity taking place in the booths.
However, no evidence has been submitted which would support
either the allegations in the complaint or the substance of defense
counsel’s comment. Thus I consider neither charge, since neither
has support in the record.
28a
Appendix B
This action was filed on October 1, 1990. A hearing was held
on October 11.
Conclusions of Law
The Court has jurisdiction of this action pursuant to 42
U.S.C. Section 1983.
Defendants’ arguments for dismissing the action have no
merit.
In an action brought pursuant to Section 1983 exhaustion
of administrative remedies is not required. Patsy v. Board of
Regents, 457 U.S. 496 (1982).
Plaintiffs are not collaterally estopped nor are they barred
by the doctrine of res judicata by reason of dismissal of the state
court damage claims on August 17, 1988. The events which are
the subject of the present action took place after August 17, 1988
and could not have been the subject of the earlier case.
To obtain preliminary injunctive relief a plaintiff must
establish a likelihood of success on the merits, that he [12] will
suffer irreparable injury if relief is denied, that countervailing
harm will not be inflicted upon the non-moving party and that
the interest of the public has been weighed and not found to
militate against the granting of the requested relief.
Here a First Amendment freedom of expression issue is
implicated. If in fact interference with First Amendment rights
has taken place or is threatened, irreparable harm is presumed.
Injunctive relief will prevent such injury. In the present case it
would not cause serious injury to defendants. There would simply
29a
Appendix B
continue a use which has not been shown to have had an adverse
effect during the past four years of its existence. Enforcement
of First Amendment rights is always in the public interest.
The principal question, therefore, is whether plaintiffs have
shown a likelihood of success on the merits. To summarize my
conclusion in that regard: i) Had the Board of Adjustment simply
held that the installation of video booths constituted an unlawful
expansion of a non-conforming use, plaintiffs’ First Amendment
rights would not be violated by a prohibition of video booths
in the Chez Sez premises. ii) However, as construed by the Board
of Adjustment, the Zoning Ordinance prohibition against all
showing of video films in private booths in any part of the
Township is an infringement upon First Amendment rights, since
no rational basis for such a [13] prohibition could have been
advanced. iii) Since I have grave doubts that the Board of
Adjustment’s interpretation of the Zoning Ordinance is
authoritative, Pu/iman abstention is appropriate in order to permit
the state court to rule in the first instance upon the proper
interpretation of the Zoning Ordinance. —
This case is governed by Schad v. Mt. Ephraim, 452 U.S.
68 (1991). There the Supreme Court passed upon an ordinance
which the highest court of New Jersey had construed to prohibit
nude dancing in any commercial zone in the municipality. The
Court held the municipality had failed to advance sufficient
justification, as required by the First Amendment, for the exclusion
of a broad category of expression long held to be within the
Amendment’s protection. Thus a conviction under the Ordinance
was found to be unconstitutional.
In Schad, the operators of an adult book store sold adult
books and films and provided booths in which a customer could
30a
Appendix B
sit, insert a coin and watch an adult film. In addition, there was
a coin-operated mechanism permitting the customer to watch a
live nude dancer performing behind a glass panel. Only the nude
dancer was the subject of the Schad case, but videotapes are no
less a form of expression entitled to First Amendment protection.
In view of their nature, privacy for many persons Is a necessary
condition for viewing adult films — thus the booths in which
they are exhibited.
[14] As interpreted by the Board of Adjustment in the present
case, viewing any kind of videotapes in booths is prohibited in
business zones. While it is much more likely that patrons will
wish to view adult fare in booths, under the Board of Adjustment’s
interpretation it would also be impermissible to use booths for
the observation of videotape segments of Bambi or Gone With
The Wind.
When a zoning law infringes upon a protected liberty, it must
be narrowly drawn and must further a sufficiently substantial
government interest. A court must assess the substantiality of the
justification offered for a regulation that significantly impinges
on freedom of speech. In the present case as in Schad, ‘‘The First
Amendment requires that there be sufficient justification for the
exclusion of a broad category of protected expression as one of
the permitted commercial uses in the (Township).’’ /d. at 67.
In the present case there is absolutely no justification for
the total exclusion of videotape booths throughout the Township
either on the face of its Zoning Ordinance or otherwise placed
into the record. instead, the Board of Adjustment relied on a
highly technical mechanistic interpretation of the Zoning
Ordinance which does not bear rational scrutiny.
3la
Appendix B
Without having to make a final determination of the question,
it would appear at first blush that the Board of [15] Adjustment’s
conclusion of plaintiffs’ operation of videotape booths goes beyond
retail use rests upon a supportable factual finding and constitutes
a reasonable legal conclusion. That being the case, Chez Sez’
operation of a significant number of such booths would be an
expansion of its operations, something which is not permitted
of a non-conforming use without a variance. N.J.S.A. 40:55D-70d.
Provided there were areas in the Township where videotape bvoths
could be operated, I see no constitutional infirmity in applying
zoning provisions which prevent a particular owner who cannot
meet the zoning requirements from operating such booths.
The Board of Adjustment concluded that Chez Sez’ booth
operation was too much like a theater or auditorium use to
constitute retail stores. However, to then conclude that such use
was not theater or auditorium use because it was too negligible
in scope is utterly lacking in rationality. From the perspective
of zoning considerations, such as parking, street access, signs,
traffic, the smaller scale video type operations have a much lesser
impact than theaters, and to permit the latter while prohibiting
the former would seem to be the ultimate in arbitrariness and
the denial of equal protection, e.g., City of Cleberne v. Cleberne
Living Center, Inc., 472 U.S. 432 (1985).
Were I convinced that the Board of Adjustment interpretation
of the Zoning Ordinance were correct, I would [16] have no choice
but to enjoin its enforcement. However, I have grave doubts that
its interpretation is correct.
On the one hand I note a piausible interpretation would justify
denying Chez Sez’ application to operate videotape booths without
impinging on constitutional rights. On the other hand I find that
32a =
Appendix B
the Board’s interpretation of the Ordinance which creates
constitutional problems may very well be an incorrect one.
Interpretation of the Ordinance is, of course, a question of State
law which may only be decided authoritatively by the State courts.
This is a classic situation for the application of the Pullman
abstention doctrine. Railroad Commission of Texas v. Pullman
Co., 312 U.S. 196 (1941). Three special circumstances must
generally be present before Pu//man abstention can be considered.
‘*First, there must be uncertain issues of state
Taw -underlying the federal constitutional claims
brought in federal court. Second, the state law
issues must be amenable to an interpretation by
the state courts that would obviate the need or
substantially narrow the scope of the adjudication
of the constitutional claims. And third, it must
appear that an erroneous decision of state law by
the federal court would be disruptive of important
State policies.’’
D’lorio v. County of Delaware, 582 F. 2d 681, 686 (3d Cir. 1978).
All three of these considerations are present in this case. There
is an uncertain interpretation of the Union Township Zoning
Ordinance. The Board of Adjustment’s conclusion [17] that
operation of videotape booths is prohibited in a zone which permits
theaters is debatable, to say the least. The state courts might well
hold that the operation of videotape booths is a permitted use
in a zone which permits theaters. If a state court did so hold,
plaintiffs’ attack on the Union Township Zoning Ordinance would
fail because this particular form of expressive activity would no
longer be totally barred from the Township. Finally, zoning
33a
Appendix B
regulations implicate important state policies. Where I to
erroneously construe the Zoning Ordinance in this case the effect
would be disruptive of those policies.
Having determined that the three special circumstances are
present, it is necessary to determine whether abstention is
appropriate in this case. Biegenwald v. Fauver, Docket No. 08-6002
(3d Cir. Aug. 11, 1989). I conclude that it is.
In the first place, it seems to me that it is unlikely that a
state court will interpret the Zoning Ordinance as did the Board
of Adjustment. If, as seems likely, it were held that videotape
booths are not prohibited in zones where theaters are permitted,
the constitutional objection to the Ordinance would fall.
Further, the record before the Board of Adjustment might
well support a finding that erection and operation of the videotape
booths constituted an expansion of a non-conforming use. Since
the premises did not meet the parking or perhaps other
requirements of the Zoning Ordinance, such expansion would [18]
be unlawful and could be terminated by the Township.
I cannot say with certainty that the facts and the applicable
New Jersey law would lead a New Jersey court to arrive at this
conclusion, but on the record before me it seems a likely result.
If so, the Township’s efforts to terminate the expanded use would
be lawful.
In these circumstances it is appropriate for plaintiffs to seek
a resolution of the state law questions in the state courts. If they
wish a federal court to decide the federal questions, if any, which
remain after disposition of the state issues, they may file an
England reservation in the state court. England v. Louisiana State
34a
Appendix B
Board of Medical Examiners, 375 U.S. 411 (1964).
Since I conclude that under the most reasonable interpretation
of the Zoning Ordinance it is likely that Chez Sez could be
prevented, without violating the Constitution, from operating
videotape booths, I do not think a preliminary injunction is
appropriate pending determination of the state law issues. | shall
stay proceedings in the present action and administratively
terminate it with the right of any party to move to reopen it upon
completion of the state law proceedings or otherwise.
I shall prepare and file an appropriate order.
[Colloquy between the Court and Counsel omitted.]
The order will read simply for the reasons set forth from
the Court’s bench opinion of even date, it is this 10th day of
October, 1990 ordered as follows: One, plaintiffs’ motion for
preliminary injunction is denied.
Two, this action is stayed pending a resolution of the state
law questions referred to in said opinion by the Court to the State
of New Jersey.
[21] Three, the action is administratively terminated with the
right of any party to move to reinstate the action on the actual
calendar upon completion of the state proceedings or otherwise
for good cause.
It is my opinion that this is an appealable order by the
plaintiffs because it is a denial of an applicaton for preliminary
injunction and by the defendant because I administratively
terminated it.
3Sa
APPENDIX C — RESOLUTION OF INTERPRETATION OF
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF UN ION,
IN RE; CHEZ SEZ III CORP., FOR AN INTERPRETATION
TO INTERPRET WHETHER VIEWING BOOTHS
CONSTITUTE A CHANGE FROM RETAIL, ON PREMISES
LOCATED AT 1521 ROUTE 22, BLOCK 1806, LOT 10,
UNION, NEW JERSEY, CALENDAR NO. 2475, SEPTEMBER
5, 1990
IN RE: CHEZ SEZ III CORP., FOR AN INTERPRETATION
TO INTERPRET WHETHER VIEWING BOOTHS
CONSTITUTE A CHANGE FROM RETAIL SALES, ON
PREMISES LOCATED 1521 ROUTE 22, BLOCK 1806, LOT
10, UNION, NEW JERSEY.
Union, New Jersey
September 5, 1990
BEFORE:
THE TOWNSHIP OF UNION BOARD OF ADJUSTMENT
ARTHUR RUSSO, Chairman
RONALD D. BUNDICK, Member, Absent
GEORGE PETKOV, Member
STARKS W. LEWIS, Member
GENNARO J. PETTI, Member
ALBERT L. KESSLER, Member
RONALD WINHOLD, Member
LULA YOUNG, Member
BARNEY CAPRIGLIONE, Member
SALVATORE J. MAURO, Building Inspector
APPEARANCES:
E. ROBERT LEVY, ESQ.
Attorney for the Board
. 36a
Appendix C
DAVID B. ZURAV, ESQ.
Attorney for the Township of Union
and Salvatore J. Mauro
[2] CHAIRMAN RUSSO: We will now continue with
Calender No. 2475, Chez Sez III Corporation, for a Resolution
of Interpretation. The Resolution of Interpretation is to interpret
whether viewing booths constitute a change from retail sales.
MRS. YOUNG: Mr. Chairman, let the record show that |
am stepping down from this case.
CHAIRMAN RUSSO: All mght. You may proceed, Mr.
Levy.
MR. LEVY: You will all have to listen to this resolution.
We have not been able to pass this one out because I didn’t have
the transcript unul today.
This is a request for an interpretation from Union Township’s
Land Development Ordinance. The matter was heard by the Board
on August 1, 1990 at which time the applicant, Chez Sez III
Corporation appeared through its counsel, Lewis Robertson, who
presented Jack B.Chesner, a principal and officer of the applicant,
[3] as his sole witness.
Mr. Chesner testified with regard to the subject use which
is located at 1521 Route 22 Westbound, which property is owned
by William Untract. The premises was previously utilized by Great
Bear and the western-most portion is now leased by the applicant.
The subject property is located in a Business B Zoning
District. The applicant has divided the lease hold into two sections;
Appendix C
one of which houses 12 video viewing booths, each approximately
40 inches deep by 30 inches wide. Each booth is approximately
eight feet high, is enclosed by a door and contains a seat. The
booths house a TV monitor which is utilized to show video tapes
obtained in the other section of the facility. The viewing is
accomplished by the payment through a coin box for the use of
the video screen.
The company also sells adult magazines, books, adult games,
adult novelties and lotions and video recorders [4] and cameras.
Adult video tapes are offered for sale and rental on the
premises. These video tapes can be ‘‘previewed’’ according to the
witness in the viewing booth for as long a period of time as the
patron is willing to pay for utilizing the coin box at a rate of
25 cents for a minute and a half of viewing. The customer can
view any one of 12 selections by switching channels on the TV
monitor. There is no requirement that the tape or tapes viewed
be purchased.
As the witness agreed, customers may come in, view a number
of tapes and leave the premises without purchasing any
merchandise or renting any merchandise whatsoever.
Counsel for the applicant argued that the viewing of tapes
was in conjunction with the sale of such tapes and was part and
parcel of the retail operation which is allowed in a Business B
District.
The Board has considered the sworn testimony of applicant’s
witness and [5] the arguments of its counsel. It has also considered
the advice of Board Counsel, E. Robert Levy, and makes the
following findings: In this regard, the Board is only considering
38a
Appendix C
a request for an interpretation as to whether the subject use needs
a D use variance and will not address at this time other issues
raised by counsel for the applicant, including the sufficiency of
parking at the subject site.
In reaching its decision, the Board has also considered the
written exhibits provided by applicant which include a factual
statement, a non-scaled floor plan, and a report provided by
Stephen Sussna, Ph.D., arguing that the subject use falls within
the allowed uses in the Business B Zone.
As indicated by counsel, a history of this application indicates
that Mr. Mauro had, at one time, refused to issue a Certificate
of Occupancy for the video booths. His reason was that the facility
would have changed the prior use to one [6] which he considered
an amusement use with inadequate parking under the Code. The
Township’s Zoning Ordinance incorporates a very comprehensive
scheme for the regulation of uses within the Township, and while
not a model of clarity, its various sections can usually give a clear
picture of which uses are or are not allowed within the
municipality. This is the case in the matter under consideration.
In this regard, while the sale, service and rental of tapes and
equipment does meet the criteria under retail sales of service use,
the Board finds that the addition of video booths renders the use
violative of the Township’s Zoning Ordinance.
The video booth ‘‘use’’ is, in fact, and the Board so finds,
distinct from the store’s sales, rental and service functions, and
does not itself fall within any use category set forth in the Land
Use Ordinance as a permmitted use.
In this regard, it should be noted [7] that any use not expressly
39a
Appendix C
permitted by our Ordinance is prohibited pursuant to Section 613-I.
In defining the use in question — namely, the video booths
— probably the most analogous use one might find is that found
in amusement parks and centers which coin-operated movie picture
machines or motion picture machines once propelled by hand
cranks are found. These were always considered an amusement
use quite distinct from the typical retail store use as contemplated
by that term in our Ordinance.
In any event, perhaps more importantly, Union’s own
ordinance expressly and clearly distinguishes a movie-type of use
from retail sales by the express allowance of motion picture theaters
in the Business B and Business C Zones pursuant to Section 605
of the Ordinance.
Furthermore, Section 707 of the Ordinance in its reference
to parking for theaters, which obviously includes motion picture
theaters, catagorizes such theaters [8] with auditoriums, churches,
arenas and similar uses. The interpretation of such a provision
would clearly indicate that the uses contemplated deal with large
auditorium-type uses where patrons sit together in public groupings
to watch movies, performances, and to listen to sermons or
services. Plainly, the video booths do not meet this type of criteria
and are, in truth, the antithesis of those types of uses since they
are small very private areas for individuals to observe videos in
complete privacy.
This use, therefore, in my judgrhent is, at the very least, a
form of motion picture use which is not permitted within the
Township because its does not fall within the movie picture or
motion picture use that is, in fact, permitted.
40a
Appendix C
Frankly, there is nothing more distinguishable in the Board’s
contemplation than the fashion in which Union’s Ordinance refers
tO motion picture theaters and the impact this has on the particular
use, which [9} clearly is a motion picture use not meeting the
specific definition of that category of use within the Ordinace.
It is peculiar and quite interesting that the applicant’s own
presentation and its exhibits very strongly substantiate some of
the Board’s findings. While the applicant’s exhibits focused on
the parking issue, not decided here, in discussing the issue regarding
assembly halls and their definition, applicant says that ‘‘Such a
use is not a public gathering of persons in a large room or
building.’’ The applicant goes on to argue that ‘‘Large facilities
such as arenas and auditoriums generate considerable traffic;
whereas, smaller facilities dealing with retail sales and service uses
do not.’’
Applicant goes on to say in its exhibits that ‘‘Retail sales
and service usage has been differentiated from meeting halls,
stadiums, theaters, movie houses, trade exhibitions’’ and so on.
It is clear, therefore, that the Board’s finding is that movie
theaters and [10] movie uses allowed in the Township are
necessarily auditorium-type uses and the applicant seems to agree
that that is the case.
The applicant further notes on Page 7 of its exhibits that
uses such as adult book stores, adult drive-in theaters, adult
entertainment cabarets, adult motels and the like are generally
treated distinctly in zoning ordinances around the United States.
Union’s Ordinance is likewise precise in separating and
segregating uses and does not specifically provide for a permitted
4la
Appendix C
use in the form of an adult video use which would have allowed
the use in question. Therefore, when Union’s Ordinance refers
tO motion picture theaters, it is referring to the only type of use
in this Township that permits a motion picture or video theater
use Or any video usage where patrons can come in and watch
films on the premises.
Therefore, the Board finds that the [11] subject use in not,
in fact, a retail use. If anything, it is an amusement use or a
prohibited movie or movie theater use since it falls into a private
movie category and does not meet the criteria or definition of
‘*movie theater’’ within the Ordinance.
Therefore, in sum, the use involved is prohibited.
It should also be noted in this regard that the applicant has
tried to relate its movie use and video use to its sale of tapes.
This Board finds such efforts disingenuous and unreasonable given
the fact presented by its own witness, even disregarding the
testimony concerning the advertising in a newspaper which would
indicate an attempt had been made in the past to enduce patrons
into the premises to watch movies.
The key fact here is that patrons can watch movies on the
subject premises without purchasing or renting a tape. They can
watch as many of the videos as they wish to without purchasing
or renting them [12] and there is no attempt whatsoever to relate
the observation or watching of a movie of a video to its purchase
or rental. There is no limitation in terms of the time which the
patron can spend watching a video or videos and there is no control
over that function. Therefore, patrons can come into the subject
premises, watch videos, and stay there literally for hours without
being disturbed. This is clearly a movie or amusement use and
iil
42a
Appendix C
it is certainly not a retail sales or service use. It is not an accessory
use. It does not serve to assist the retail sale. It is independent
thereof and not permitted as indicated.
The significant cost to watch these videos is another fact which
mitigates against the applicant’s arguments that the use is tied
to the sale or rental of videos. If one were inducing patrons to
watch a movie in order to decide whether to purchase the video,
there would not be a charge as high as 25 cents for 90 seconds.
Instead, it is clear that the applicant is being paid [13] a substantial
sum of money to permit patrons to watch video tapes on premises.
That is obviously what the booths were designed to do.
In this regard, the fact that 12 booths are available adds to
the facts supporting the Board’s conelusions. It is inconceivable
to this Board that one would put 12 independent viewing booths
with 12 TV monitors and all of the necessary equipment that goes
with it if the only use of a booth was designed to assist in the
retail sale or retail rental of a video.
Given the number of tapes testified to and sold or rented
per week, and the number of days of operation, it is clear that
12 booths were not at all necessary to accommodate patrons who
might want to make a brief observation of a particular video to
see whether it should be purchased or rented.
In sum, the proposed use does not fall within the retail sales
or services provisions of our Ordinance, nor does it fall [14] within
any other provision of the Ordinance which would allow the use
on premises.
For the reasons set forth, the Board has concluded on this
Sth day of September, 1990, that the use of video booths on the
43a
Appendix C
subject premises as described by the applicant’s testimony and
documentary evidence is not a permitted use in the Business B
Zoning District. Therefore, a D variance would be necessary if
the use is to be continued on the subject premises.
CHAIRMAN RUSSO: Mr. Winhold, do you want to move
this resolution?
MR. WINHOLD: Mr. Chairman, | move that we concur
with the findings and conclusions set forth in the resolution as
read by counsel.
MR. PETTI: Second.
CHAIRMAN RUSSO: Roll call.
MR. MAURO: Mr. Winhold?
MR. WINHOLD: Yes.
MR. MAURO: Mr. Capriglione?
MR. CAPRIGLIONE: Yes.
[15] MR. MAURO: Mr. Petti?
MR. PETTI: Yes.
MR. MAURO: Mr. Kessler?
MR. KESSLER: Yes.
MR. MAURO: Mr. Lewis?
deel
44a
Appendix C
MR. LEWIS: Yes
MR. MAURO: Chairman Russo?
CHAIRMAN RUSSO: Yes.
The Resolution is approved.
(Whereupon, the Resolution of Interpretation was adjourned.)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.