Phillips v. Keyport

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

2-21-1997

Phillips v. Keyport
Precedential or Non-Precedential:

Docket 95-5143

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Recommended Citation
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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 95-5143

GEORGE PHILLIPS; PHILIP VITALE
Appellants

v.

BOROUGH OF KEYPORT; VICTOR RHODES; BOARD OF ADJUSTMENT

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 93-cv-00415)

Argued December 8, 1995

BEFORE: STAPLETON, SAROKIN,* and ROSENN, Circuit Judges

Reargued En Banc
September 19, 1996

BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE and ROSENN,
Circuit Judges

(Opinion Filed February 21, 1997)

Lewis H. Robertson (Argued)
Evans, Osborne, Kreizman & Bonney
P.O. Box BB
Red Bank, NJ 07701
Attorney for Appellants

* Hon. H. Lee Sarokin heard argument before the original panel
but retired from office prior to the en banc hearing.

1
 Frank N. Yurasko
63 Route 206 South
P.O. Box 1041
Somerville, NJ 08876

Gordon N. Litwin (Argued)
Ansell, Zaro, Bennett & Grimm
60 Park Place
Newark, NJ 07102
Attorneys for Appellee
Borough of Keyport

Michael A. Irene, Jr.
Suite 6
422 Morris Avenue
Long Branch, NJ 07740
Attorney for Appellee
Board of Adjustment

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellants planned to open an adult book and video

store, "X-Tasy", in the Borough of Keyport, New Jersey. Over a

ten month period, they sought the necessary zoning and

construction permits. Their applications were ultimately denied

on the basis of an "adult entertainment uses" ordinance enacted

by the Borough allegedly in response to those applications.

Appellants insist that delays, denials, and revocations in the

permitting process violated their right to substantive due

process, that the ordinance violates their right to freedom of

speech, and that they are entitled to recover litigation expenses

under 42 U.S.C. § 1988. Appellants also contend that the Borough

2
is equitably estopped to deny that they are authorized to pursue

their project.

I. The Factual Background

In early 1992, George Phillips and Philip Vitale

spotted an abandoned one-story building on Route 36 in the

Borough of Keyport, a 1.5-square-mile community in Monmouth

County, New Jersey. After visiting the site, they became

interested in the property as a potential location for an adult

video and book store. After checking zoning and land use

regulations, they met with the owner to negotiate a lease of the

property. The parties agreed that, if Phillips and Vitale could

obtain a zoning permit for the intended use of the property, they

would execute a lease.

Phillips contacted Vic Rhodes, construction official

and zoning officer of the Borough, and asked him to perform an

unofficial inspection of the property to advise plaintiffs as to

what they would need in order to obtain a certificate of

occupancy. He did so on February 18th, and informed Phillips and

Vitale that they would have to comply with various requirements

regarding designation of parking places. A week later, Phillips

and Vitale submitted to Rhodes an application for a zoning permit

to "operate a retail book store w/ novelties - amusements &

videos." App. at 29. The address listed on the application was

"#65 Hwy. 36." Id. The line below the address specified, "Block

103, Lot 59." Id. Attached to the application was a survey of

3
"Lots 59 & 61, Block 103 of the Official Tax Map of the Borough

of Keyport." App. at 30.

The property that Phillips and Vitale eventually leased

-- and that Rhodes inspected -- is actually located on Lot 61.

While Lots 59 and 61 are contiguous, they are situated in

different zoning areas. Lot 59 is located in a district zoned as

"residential." Lot 61 is situated in a "highway commercial"

district. The survey clearly indicated which land was Lot 59 and

which was Lot 61.

A few days later, Rhodes telephoned Vitale and

requested that he clarify the nature of plaintiffs' intended use

of the property. Vitale complied by describing the intended use

in writing as "(1) video sales & rentals"; "(2) amusements -

adult video arcade"; and "(3) no one under 21 years of age

admitted." App. at 31. There was at that time no zoning

restriction specifically pertaining to commercial establishments

selling, renting or exhibiting sexually explicit material. On

March 9th, Rhodes issued to plaintiffs a zoning permit for Block

103, Lot 59.

On March 13th, Phillips and Vitale entered into a

five-year lease for "[t]hat portion of the premises known as

Block 103, Lot 59 also known as 65 Highway 36." App. at 32. The

lease specified that the premises were to be used for "video

sales and rental, amusements and adult video arcade" and as "a

retail adult book store with novelties and gifts," and that "[n]o

one under 21 years of age [would be] admitted to the premises."

The lessees agreed to "obtain any and all necessary government

4
permits and approvals to conduct the business as deemed necessary

by such governmental entities."

On March 18th, Rhodes issued plaintiffs three

construction permits under their zoning permit. Plaintiffs

allege that they thereafter expended substantial sums of money to

repair and renovate the property for their intended use.

By this time, however, word of the plans for an adult

book store had spread around the Borough and had generated

significant opposition. Charles Barreca, who lives directly

behind the property at issue, stated at a Borough Council meeting

on March 23rd that he would do all he could to stop plaintiffs

from opening their proposed store and that he had begun to

circulate a petition in the area to that end. At the same

meeting, the Borough attorney explained that the Zoning Board of

Adjustment could review and overturn Rhodes's decision to issue

the zoning permit. Other local leaders, including the mayor,

also voiced their opposition. Faithful to his promise, on March

29th, Barreca appealed the issuance of the zoning permit to the

Board, and the Board announced that it would review the matter at

its upcoming meeting, on April 20th. On April 2nd, Rhodes issued

and posted a "stop construction" notice, ordering plaintiffs to

stop work at "Block 103, Lot 61, 65 Hwy 36" until the appeal was

resolved. The appeal was based on the mistaken identification of

the lot number.

On April 14th, Phillips and Vitale filed a second

application for a zoning permit, this time with the proper

address of the location. The application stated that their

5
intention was "to operate a retail bookstore w/ novelties,

amusements & videos, adult video arcade, video sales & rentals

(no one under 21 years of age admitted)." App. at 42.

On April 20th, the Board of Adjustment held its hearing

on the first application. Barreca attended, along with another

resident, to urge reversal. Phillips and Vitale were represented

by counsel, who admitted that the permit had been issued for

Block 103, Lot 59, that this location was in a residential

district, and that his clients' intended use was not permitted in

such a district. Barreca and his supporter submitted eight

photographs purporting to show that the present condition of the

plaintiffs' proposed building and site differed from the

conditions represented on the old survey attached to their

application for the zoning permit. On the basis of this

evidence, the Board granted the appeal and reversed Rhodes's

decision to issue the initial zoning permit.

Eight days later, Rhodes advised plaintiffs that their

second application for a zoning permit had been denied due to (1)

inaccuracies in the survey they had submitted with the

application, (2) the need to replace a fence pursuant to

Ordinance 25:1-14.6.B, and (3) reports from a previous tenant

that the sewer line servicing the building did not operate.

Phillips and Vitale undertook to correct the problems and, on

June 16th, submitted a third application for a zoning permit,

together with a revised survey and receipts for sewer line

repairs.

6
 A week later, while the plaintiffs' third application

was pending, members of the Borough Council introduced at a

Council meeting two ordinances targeted at establishments

involved in so-called adult entertainment. Ordinance No. 30-92,

entitled "Public Indecency," would prohibit female topless and

bottomless exhibitions and male bottomless exhibitions. It was

patterned after the Indiana statute upheld by the Supreme Court

in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Ordinance

No. 31-92, entitled "Adult Entertainment Uses," ("the Ordinance"

or "Ordinance 31-92") would restrict adult entertainment uses to

industrial districts and prohibit them within 1000 feet of

residential zones, schools, churches, and public playgrounds,

swimming pools, parks and libraries. Under the proposed scheme,

Phillips and Vitale would need a use variance to open their

store, because they were located in a highway commercial

district. The Council referred the second ordinance to the

Borough Planning Board for review. In connection with the

ordinances, Mayor John J. Merla stated to the Asbury Park Press

correspondent:
We're not going to tolerate this kind of filth in the
Borough of Keyport. We don't support it
(adult entertainment) going into any
community in the Bayshore.

App. at 14-15.

On July 23rd, the Borough Planning Board held a public

meeting to consider proposed Ordinance No. 31-92. The Board had

earlier solicited and reviewed a legal opinion concerning the

Ordinance, and at the hearing, it heard an oral presentation by

7
an engineering expert. It recommended that the Council pass the

proposed ordinance, but suggested three changes, the most

significant of which was to reduce the "buffer zone" from 1000 to

500 feet.

At the Council meeting on July 28th, the Council

adopted Ordinance No. 31-92 as amended in light of the Planning

Board's suggestions. The minutes of the meeting indicate that,

although the meeting was open to the public for comments, the

sole comment on Ordinance No. 31-92 was made by the Borough

counsel, reporting the Planning Board's recommended changes and

stating that the mayor had disqualified himself at the Planning

Board meeting. Ordinance No. 31-92 contained the following

legislative findings and prohibitions:
(a) In the development and execution of this
section it is recognized that there are
certain uses which, because of their very
nature, are recognized as having serious
objectionable operational characteristics.

These uses create and promote a deleterious
effect on the Borough's neighborhood
characteristics, administration of schools,
and the commercial and economic viability of
the community. These uses impact on the
Borough's neighborhood areas and conflict
with the intent of the Borough Master Plan,
particularly those segments listed on pages
16 and 19 therein which provide that a
primary zoning objective is to preserve and
protest [sic] existing residential areas and
to enhance the desirability thereof. Adult
Entertainment Uses are such uses.

The Borough of Keyport is a small residential
community with its commercial areas and zones
highly integrated with its residential
properties. The commercial properties are in
close proximity to its educational,
religious, residential and youth recreation
facilities with a high volume of pedestrian

8
 activity, including children throughout the
area.

The industrial zone as it exists is not
comprised of major industrial operations, but
of mixed use nature including
retail/commercial uses, it is so situated as
to provide easy access and highway exposure.
The industrial zone is suitably distant and
buffered from the residential and mixed
commercial zones as to minimize a negative or
deleterious effect.

In order to prevent the deterioration of the
community, to preserve the neighborhoods of
the Borough of Keyport, to ensure the
economic prosperity of the community, and to
provide for the protection and well being of
the quality of life in the Borough of
Keyport, certain regulations are necessary to
prevent these adverse effects.

(b) Adult Entertainment Uses1 are prohibited
in all zones, except where expressly
permitted.

1. Ordinance 31-92 provides the following definition of "Adult
Entertainment Uses":

ADULT ENTERTAINMENT USES, INCLUDE:

(1) ADULT BOOKSTORE - An establishment having as a
substantial or significant portion of its stock in trade books,
magazines, other periodicals, or any tangible items and objects,
not necessarily of a reading or photographic nature, which are
distinguished or characterized by their emphasis on matter
depicting, describing or relating to specified sexual activities
or specified anatomical areas, as defined below, or an
establishment with a segment or section devoted to the sale or
display of such material.

(2) ADULT MOTION PICTURE THEATER - An enclosed building
with a capacity of fifty (50) or more persons used for presenting
material distinguished or characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities
or specified anatomical areas, as defined below, for observation
by patrons therein.

(3) ADULT MINI MOTION PICTURE THEATER - An enclosed
building with a capacity for less than fifty (50) persons used
for presenting material distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas, as defined
below, for observation by patrons therein.

9
 (c) In such zones where Adult Entertainment
Uses are expressly permitted, no Adult
Entertainment Use shall be located:

(a) within 500 feet of any residence,
residential use and/or residential zone; or

(b) within 500 feet of any of the
following users:

1. Churches, monasteries, chapels,
synagogues, convents, rectories, religious
artifice or religious apparel stores, or any
religious use; or

2. Schools, up to and including the
twelfth (12) grade, and their adjunct play
areas; or

3. Public playgrounds, public swimming
pools, public parks and public libraries.

App. at 59 (codified at Keyport, N.J., Rev. Gen Code, ch. XXV,

§ 25:1-15.15 (1992)).

On September 9th, Rhodes informed Phillips and Vitale

by letter that their third application for a zoning permit was
(..continued)

(a) For the purpose of this subsection,
"specified sexual activities" is defined as
human genitals in a state of sexual
stimulation or arousal; acts of human
masturbation, sexual intercourse or sodomy;
and fondling or other erotic touching of
human genitals, pubic region, buttock or
female breast; and "specified anatomical
areas" is defined as less than completely and
opaquely covered human genitals, pubic
region, buttock or female breast below a
point immediately above the top of the
areola; and human male genitals in a
discernibly turgid state, even if completely
and opaquely covered.

(4) CABARET - An establishment which features go-go
dancers, exotic dancers, strippers, or similar entertainers.
App. at 57-58 (codified at Keyport, N.J., Rev. Gen. Code, ch.
XXV, § 25:1-3(a) (1992)).

10
denied because: (1) they lacked "ample parking," (2) a site plan

was required, and (3) issuance of the permit sought would be

inconsistent with "31-92 Section 2 25:1-15.15.b Adult

Entertainment Uses." App. at 70. Phillips and Vitale appealed

the denial, and the Board of Adjustment held public hearings on

the appeal. On December 21st, a unanimous Board voted to deny

the appeal, finding that plaintiffs' proposed use fell within the

definition of Adult Entertainment Uses and that such uses were

prohibited in a highway commercial district, where plaintiffs'

site was located. The Board also found that plaintiffs had failed

to demonstrate that Rhodes erred regarding the issues of

inadequate parking and the need for a site plan. Phillips and

Vitale then instituted this suit.

11
 II. The Issues On Appeal And The District Court Process

In this appeal, Phillips and Vitale advance four

arguments: (1) Ordinance No. 31-92 violates their right of free

expression because it is not narrowly tailored to achieve a

substantial, content-neutral governmental interest and because it

does not leave adequate alternative channels of communication;

(2) the Borough violated their right to substantive due process

by revoking their original permits, by delaying action on their

two subsequent applications, and by denying their third

application based on Ordinance No. 31-92; (3) they are

"prevailing parties" entitled to attorneys' fees and costs

pursuant to 42 U.S.C. § 1988; and (4) the Borough is equitably

estopped from revoking their original permits.

In response to the complaint, Rhodes and the Borough

filed a motion to dismiss rather than an answer.2 The district

court denied their motion. In the course of doing so, the court

ruled on the basis of the allegations of the complaint that

Ordinance No. 31-92 is content neutral and serves a substantial

state interest. The only governmental interests identified by

the district court were "preserving the quality of urban life"

and "shielding minors from sexually explicit materials" --

interests quoted not from the Ordinance or the record but from

Supreme Court cases. App. at 140-41. See Young v. American Mini

Theaters, Inc., 427 U.S. 50, 71 (1976) (plurality opinion)

2. The Board of Adjustment filed a motion to dismiss and, later,
an answer to the complaint. This answer consisted primarily of
general denials and did not identify any secondary effects that
might justify Ordinance 31-92.

12
("[I]nterest in attempting to preserve the quality of urban life

is one that must be accorded high respect."); Ginsberg v. New

York, 390 U.S. 629, 639-40 (1968) (state's "interest in the well-

being of its youth" justified some restriction of the First

Amendment). The court declined to grant the motion to dismiss,

however, because it was unclear from the complaint and exhibits

(a) whether the Ordinance provided alternative channels for adult

entertainment expression, and (b) whether the Borough was

equitably estopped from prohibiting the plaintiffs' proposed use.

It did hold that the complaint failed to state a substantive due

process claim and dismissed that count of the complaint.

The district court thereafter entertained the

plaintiffs' motion for summary judgment on their challenge to

Ordinance No. 31-92 and their motion for a preliminary injunction

barring enforcement of that Ordinance. On June 15, 1994, the

district court conducted an evidentiary hearing on the issue of

whether Ordinance 31-92 left alternative channels available for

adult entertainment. A second evidentiary hearing was held two

days later to receive evidence on the equitable estoppel issue.

At the beginning of this hearing, defense counsel announced that

the Borough Council had met in special session on the evening of

June 15, 1994, and had declared an intention to amend the

Ordinance to reduce the buffer from 500 feet to 300 feet.

Both motions were ultimately denied. The district

court viewed the record as establishing that the Ordinance, as

amended to reduce the buffer zone to 300 feet, afforded a

constitutionally sufficient opportunity for adult entertainment

13
expression. This finding, together with the conclusions reached

in deciding the motion to dismiss, meant that Ordinance No. 31-92

was constitutional and that plaintiffs could not demonstrate a

likelihood of success on this claim. The court expressed no view

regarding the constitutionality of the 500 foot buffer version of

the Ordinance.

The district court's third and final order came in

response to the plaintiffs' motion for summary judgment on their

equitable estoppel and § 1988 claims. The district court first

ruled that the undisputed record facts established a lack of

reasonable reliance by the plaintiffs. The district court then

found that the plaintiffs were not "prevailing parties" within

the meaning of § 1988. The resulting order denied plaintiffs'

motion for summary judgment and concluded as follows:
FURTHER ORDERED that since there remain no
issues of material fact and this Court having
resolved all legal issues in defendants'
favor, that the above-captioned action be and
is hereby DISMISSED in its ENTIRETY as MOOT.

Order of Feb. 14, 1994, App. at 247.

III. The Challenge to Ordinance No. 31-92

Speech, be it in the form of film, live presentations,

or printed matter, that is sexually explicit in content but not

"obscene" is protected under the First Amendment. Schad v.

Borough of Mt. Ephraim, 452 U.S. 61, 65-66 (1981); Mitchell v.

Comm'n on Adult Entertainment Establishments, 10 F.3d 123, 130

(3d Cir. 1993). The Fourteenth Amendment extends this protection

to the state and local levels. 44 Liquormart, Inc. v. Rhode

14
Island, 116 S. Ct. 1495, 1514 (1996). However, not every

regulation of protected speech violates the First Amendment; nor

is every form of speech regulation subject to the same degree of

scrutiny when challenged in court. As the Supreme Court

explained in Turner Broadcasting System, Inc. v. F.C.C., 114 S.

Ct. 2445, 2459 (1994) (citations omitted):
Our precedents . . . apply the most exacting scrutiny
to regulations that suppress, disadvantage,
or impose differential burdens upon speech
because of its content. . . . In contrast,
regulations that are unrelated to the content
of speech are subject to an intermediate
level of scrutiny, because in most cases they
pose a less substantial risk of excising
certain ideas or viewpoints from the public
dialogue.

State regulations of speech that are not regarded as

content neutral will be sustained only if they are shown to serve

a compelling state interest in a manner which involves the least

possible burden on expression. Regulations of speech that are

regarded as content neutral, however, receive "intermediate"

rather than this "exacting" or "strict" scrutiny. This includes

regulations that restrict the time, place and manner of

expression in order to ameliorate undesirable secondary effects

of sexually explicit expression. City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986) (zoning ordinances designed to

combat the undesirable secondary effects of businesses that

purvey sexually explicit material are to be reviewed under the

standards applicable to "content-neutral" time, place, and manner

regulations). We articulated the "intermediate scrutiny"

standard applicable to such measures in Mitchell v. Comm'n on

15
Adult Entertainment Establishments, 10 F.3d 123, 130 (3d Cir.

1993):
[R]easonable time, place, and manner regulations of
protected speech are valid if: (1) they are
justified without reference to the content of
the regulated speech; (2) they are narrowly
tailored to serve a significant or
substantial government interest; and (3) they
leave open ample alternative channels of
communication.

Thus, when a legislative body acts to regulate speech,

it has the burden, when challenged, of showing either (1) that

its action serves a compelling state interest which cannot be

served in a less restrictive way, or (2) that its action serves a

substantial, content-neutral, state interest, is narrowly

tailored to further that substantial state interest, and leaves

adequate alternative channels for the regulated speech. If the

state chooses the second alternative in a setting like the

present one, it must come forward with "evidence of incidental

adverse social effect that provides the important governmental

interest justifying reasonable time, place and manner

restrictions on speech or expressive conduct." Id. at 133.

Moreover, the legislative body "must . . . be prepared . . . to

articulate and support its argument with a reasoned and

substantial basis demonstrating the link between the regulation

and the asserted governmental interest." Id. at 132.

A. Content Neutrality And Narrow Tailoring

The district court concluded, on the basis of the

legislative findings contained in Ordinance No. 31-92, that the

16
Ordinance is an effort to suppress the secondary effects of

sexually explicit expression and not sexually explicit expression

itself. Apparently, it further tacitly concluded, without

explanation, that Ordinance No. 31-92 was narrowly tailored to

achieve that objective. We conclude that the district court was

simply not in a position to make these findings.

These findings were made by the district court when the

case was in an unusual procedural posture. It sustained the

constitutionality of an ordinance substantially burdening the

exercise of protected speech (1) without an answer from the

defendants identifying the secondary effects alleged to justify

the burden on expression, and (2) without a record supporting the

reasonableness of any legislative expectations regarding the

likelihood of these secondary effects and the ameliorative effect

of the ordinance.

The complaint alleges that the plaintiffs wished to

disseminate adult entertainment and that the defendants "applied

an unconstitutional ordinance to [them] with a purpose to

restrain their sale, rental, exchange and exhibition of adult-

theme videos, as well as adult books, magazines and the like

because of their content." ¶ 60. It further alleges, inter

alia, that the ordinance burdens only adult entertainment

expression, "is not rationally related to a valid governmental

purpose," "is not intended to further any substantial or

compelling governmental purpose," "significantly restricts access

to protect[ed] speech," "is not supported by a reasoned or

significant basis," "is not narrowly tailored," and "is a

17
subterfuge for the suppression of expression protected by the

First Amendment." ¶ 61.

When an ordinance burdening speech is thus challenged,

it must be "justified" by the state. Renton, 475 U.S. at 48.

However, because the Borough filed no answer in this case, we do

not yet know how the Borough will seek to justify the Ordinance.

There is no articulation by the state of what it perceives its

relevant interests to be and how it thinks they will be served.

This is particularly troublesome in a case, like this, where the

legislative findings speak in terms of "serious objectionable

operational characteristics," "deleterious effects," and "the

deterioration of the community" without identifying in any way

those "characteristics," those "effects," or that

"deterioration."

On remand, the Borough must be required to articulate

the governmental interests on the basis of which it seeks to

justify the ordinance. It should then have to shoulder the

burden of building an evidentiary record that will support a

finding that it reasonably believed those interests would be

jeopardized in the absence of an ordinance and that this

ordinance is reasonably tailored to promote those interests. It

is the Borough that carries the burdens of production and

persuasion here, not the plaintiffs. Renton, 475 U.S. 41; Schad

v. Mount Ephraim, 452 U.S. 61 (1981). Moreover, it is the

district court, not the Borough, that must make the findings

necessary to determine whether the ordinance is consistent with

the First Amendment. See id.; Renton, 475 U.S. 41.

18
 It is clear from the district court's opinion that it

believed its conclusions to be dictated by Renton v. Playtime

Theatres, Inc. The Supreme Court there upheld the

constitutionality of a municipal ordinance of the City of Renton,

Washington, that prohibited any "'adult motion picture theater'

from locating within 1000 feet of any residential zone, . . .

dwelling, church, or park, and within one mile of any school."

475 U.S. at 44. Renton is a city of approximately 32,000 people

located just south of Seattle. The Court held, inter alia, that

the Renton Council was entitled to rely "on the experience of,

and studies produced by, the City of Seattle," id. at 51,

concerning the secondary effects of such theaters. As the Court

put it, "The First Amendment does not require a city, before

enacting an ordinance, to conduct new studies or produce new

evidence independent of that already generated by other cities,

so long as whatever evidence the city relies upon is reasonably

believed to be relevant to the problem that the city addresses."

Id. at 51-52.

The Renton Court did not sustain the constitutionality

of the ordinance before it based solely on legislative findings

there recited. The city justified the ordinance by placing the

Seattle studies in the record and the Court concluded that these

studies could reasonably be believed relevant to the problem that

the city was facing. Here, the district court had no way of

knowing what problem or problems the Borough thought it was

facing and there is no study or other evidence in the record

concerning the secondary effects of "adult entertainment uses."

19
Moreover, because the problem or problems that the Borough

believes it was facing have not been identified, the district

court was in no position to determine whether Ordinance 31-92 was

"narrowly tailored" to effectively ameliorate the interest or

interests the Borough sought to serve. While the requirement of

narrow tailoring does not mean that the ordinance must be the

least restrictive means of serving the Borough's substantial

interests, "[g]overnment may not regulate expression in such a

manner that a substantial portion of the burden on speech does

not serve to advance its goals." Ward v. Rock Against Racism,

491 U.S. 781, 799 (1989). Accordingly, the issue of narrow

tailoring cannot be determined without knowing the undesirable

secondary effects the Borough relies upon to justify its

ordinance and more about the effect of Ordinance 31-92 in the

context of the Borough of Keyport.

Renton does not signal an abandonment of the elements

of the intermediate scrutiny standard that the Supreme Court has

traditionally applied to content neutral regulation of speech.

See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989);

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993);

Turner Broadcasting System, Inc. v. F.C.C., 114 S. Ct. 2445

(1994). In Turner Broadcasting, the Supreme Court held that a

summary judgment upholding the constitutionality of the FCC's

"must carry" provisions for cable stations was improperly

granted. The Court was divided on whether the challenged

provisions were content neutral and, accordingly, on the level of

20
scrutiny that should be applied. A majority agreed, however,

that the challenged provisions would not survive intermediate

scrutiny and emphasized the importance of applying the

traditional elements of intermediate scrutiny in a realistic

manner. Justice Kennedy, joined by the Chief Justice, Blackmun,

J., and Souter, J., found the intermediate scrutiny standard

articulated in United States v. O'Brien, 391 U.S. 367 (1968)3, to

be applicable and observed:
That the Government's asserted interests are
important in the abstract does not mean,
however, that the must-carry rules will in
fact advance those interests. When the
Government defends a regulation on speech as
a means to redress past harms or prevent
anticipated harms, it must do more than
simply "posit the existence of the disease
sought to be cured." Quincy Cable TV, Inc.
v. FCC, 768 F.2d 1434, 1455 (CADC 1985). It
must demonstrate that the recited harms are
real, not merely conjectural, and that the
regulation will in fact alleviate these harms
in a direct and material way. . . .

Thus, in applying O'Brien scrutiny we must
ask first whether the Government has
adequately shown that the economic health of
local broadcasting is in genuine jeopardy and
in need of the protections afforded by must-
carry. Assuming an affirmative answer to the
foregoing question, the Government still
bears the burden of showing that the remedy
it has adopted does not "burden substantially
more speech than is necessary to further the
government's legitimate interests." Ward,
491 U.S., at 799, 109 S. Ct., at 2758. On
the state of the record developed thus far,
and in the absence of findings of fact from
the District Court, we are unable to conclude

3. The Supreme Court has recognized that the "O'Brien test 'in
the last analysis is little, if any, different from the standard
applied to time, place and manner restrictions'" like those found
in Renton and Mitchell. Ward v. Rock Against Racism, 491 U.S.
781, 798 (1959).

21
 that the Government has satisfied either
inquiry.

Turner, 114 S. Ct. at 2470. Justice O'Connor, joined by Scalia,

J., and Ginsburg, J., found that the "must carry" rules were not

content neutral but agreed that they "fail[ed even] content

neutral scrutiny" because:
"A regulation is not 'narrowly tailored' --
even under the more lenient [standard
applicable to content-neutral restrictions]
-- where . . . a substantial portion of the burden on
speech does not serve to advance [the State's
content-neutral] goals." Simon & Schuster,
502 U.S., at ______ - _____, n.** 112 S. Ct.,
at 511-512, n.**. . . .

Turner, 114 S. Ct. at 2479.

It may well be that the defendants here, by pointing to

studies from other towns and to other evidence of legislative

facts, will be able to carry their burden of showing that the

ordinance is reasonably designed to address the reasonably

foreseeable secondary effect problems. Nevertheless, our First

Amendment jurisprudence requires that the Borough identify the

justifying secondary effects with some particularity, that they

offer some record support for the existence of those effects and

for the Ordinance's amelioration thereof, and that the plaintiffs

be afforded some opportunity to offer evidence in support of the

allegations of their complaint. To insist on less is to reduce

the First Amendment to a charade in this area.

B. The Adequacy of Alternative Channels
Ordinance 31-92, as originally proposed by the Borough

Council, prohibited adult entertainment uses located on any land

22
not zoned industrial or in a "buffer zone" -- i.e., less than

1000 feet from a residence or residential zone, school, church,

etc. As a result of advice from the Planning Board's engineer

that a 1000 foot buffer would leave no land available for an

adult bookstore, the Ordinance, as ultimately adopted, called for

a 500 foot buffer zone.

At the September 15, 1993, evidentiary hearing, the

plaintiffs' expert land use planner, George A. VanSant, testified

that the 500 foot version of the ordinance prohibited an adult

video store anywhere in the Borough. He tendered a map that

depicted the portions of Keyport zoned industrial with

superimposed arcs marking 500 feet from each residential property

in Keyport and adjacent areas. With respect to the buffers

associated with residential properties in adjacent areas, VanSant

explained that the Borough's zoning plan had been coordinated

with the zoning plans of the contiguous townships and that the

buffer provisions of the Ordinance, interpreted in the context of

the Borough's zoning ordinance, had to be applied to residential

property in contiguous areas.4 VanSant's map demonstrated that

4. The Supreme Court has suggested that, at least in the case of
small municipalities, opportunities to engage in the restricted
speech in neighboring communities may be relevant to a
determination of the adequate alternative channels. Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 76-77 (1981). In Schad,
Mount Ephraim, another New Jersey borough, attempted to ban "live
entertainment," including nude dancing, within the borough's
boundaries. Mount Ephraim asserted that nude dancing was "amply
available in close-by areas" within the county. Id. at 76.
Nevertheless, the Court concluded that Mount Ephraim could not
avail itself of such an argument as there was no county-wide
zoning nor any evidence of the availability of nude dancing in
"reasonably nearby areas." Id. Here, the Borough does not rely
on the availability of "adult entertainment" sites in neighboring

23
the 500 foot buffer left only a portion of two lots available for

an adult bookstore. One of these lots was owned by Jersey

Central Power & Light Company and was used as an electric

substation. The other was owned and occupied by a going

industrial concern. VanSant indicated that even if one of these

owners could be persuaded to sell or lease, however, neither lot

could be used for an adult bookstore because the Borough's zoning

ordinance, in accordance with customary zoning practice, defined

"use" in such a way that the entirety of each lot takes on the

character of the purpose for which any building thereon is

utilized. Thus, the placing of an adult bookstore anywhere on

either of these lots would result in a prohibited use within 500

feet of a residential area.

In response to this testimony, the defendants called

the Borough's Planning Board engineer, Paul M. Sterbenz. He

testified that the intent of the 500 foot ordinance was to leave

four lots in the industrial zone available for an adult

bookstore. He acknowledged, however, that when he reviewed the

500 foot version for the Planning Board he had inadvertently

failed to take into account a residential area in adjacent Hazlet

Township. He further acknowledged that when this error was

corrected only a portion of two lots were available for an adult

bookstore. Finally, on cross-examination, Sterbenz agreed with

VanSant's view that for zoning purposes in the Borough a lot

(..continued)
areas outside its limits; nor has it offered any evidence of such
sites.

24
takes on the character of the use to which any portion thereof is

put.

Despite this last concession, the defendants' counsel

continued to insist that a portion of two lots could be used for

an adult bookstore. In support of this position, they called

Richard Maser, the Borough Engineer for the Borough of Keyport.

He expressed the opinion that an adult bookstore could be

constructed on the portion of the two lots that lay outside the

500 foot buffer so long as other set back requirements were met.

He did not explain the basis for this opinion, however, and did

not comment on VanSant's and Sterbenz's understanding of "use."

In response to a question from defense counsel, Maser expressed

the further opinion that the Council's original intention of

leaving four lots available for an adult bookstore could be

accomplished by reducing the buffer zone to 250 feet.

On the evening of June 15th, after the close of the

hearing, the Borough Council held a special meeting and adopted a

resolution declaring its intention to reduce the buffer zone to

300 feet. It recognized that it could not legally effect the

change before the scheduled hearing on September 17th but

authorized counsel to advise the court of its intent and to

indicate that it considered itself bound to effectuate the

change.

At the beginning of the June 17th hearing on the

equitable estoppel issue, defense counsel advised the court of

the Council's resolution and declared that the amendment would

make three lots in their entirety available for an adult

25
entertainment use. He further indicated that a portion of a

fourth lot would be available. The resolution was marked as an

exhibit. Although the transcript does not affirmatively indicate

whether it was formally admitted into evidence, the court and

counsel explored the effect of the new ordinance on the map

exhibits. The court clearly indicated that it was considering

the resolution as a part of the evidence in the case and that it

considered the Borough bound by it. Counsel for Phillips and

Vitale did not at any time object to consideration of the

resolution by the court and concluded his closing argument on the

issue of alternative access with the following comments

concerning three "available" lots:
There is land that's legally available. It's occupied
by a quasi public entity [and a]
manufacturing concern that we can expect that
it's going to stay right there, and it's
occupied by lot 4, which is basically --
probably a non-buildable ravine, that's it.
And I'd submit that when we measure what the
Borough has done against what the Supreme
Court would permit, and permitted in Young
[v. American Theatres] and City of Rentin
[sic], that it has substantially restricted
access and that it is unconstitutional.

Tr. at 203.

As we have indicated, the district court upheld the

constitutionality of the 300 foot Ordinance. It did not comment

upon the constitutionality of the 500 foot Ordinance. In this

appeal, Phillips and Vitale do not argue that the 300 foot

ordinance fails to provide constitutionally sufficient

alternative channels of expression for adult entertainment. They

do insist that the district court erred in failing to rule upon

26
the constitutionality of the 500 foot Ordinance. They also

contend that the 300 foot Ordinance was not properly before the

district court and, alternatively, that it violates the First

Amendment, even assuming that it leaves constitutionally

sufficient alternative channels of expression for adult

entertainment.

We agree with Phillips and Vitale that the district

court erred in failing to adjudicate their § 1983 claim that the

500 foot version of Ordinance 31-92 violated their First

Amendment rights. As we have pointed out, the defendants have

not tendered record justification for the Ordinance tending to

establish that it is narrowly tailored to serve a substantial

state interest and the evidence from the June 15, 1993, hearing

would provide ample basis for concluding that this version of the

Ordinance leaves no alternative channel open for adult

entertainment expression. Contrary to the defendants'

suggestion, the issue of the constitutionality of this version of

the Ordinance is not moot. Phillips and Vitale have a § 1983

damage claim based on the 500 foot version of the Ordinance.

They seek damages for defendants' refusal to permit them to

operate an adult bookstore on Lot 61 from July 28, 1992, when

Ordinance 31-92 was first adopted, to the date in the fall of

1993 on which the 300 foot version of the Ordinance was adopted.

If the 500 foot Ordinance is unconstitutional, Phillips and

Vitale are entitled to any damages they can establish to have

been occasioned by it.

27
 As Renton, 475 U.S. 41, 53-54, and Mitchell, 10 F.3d

123, 139, 144, indicate, the existence of adequate alternative

channels for adult entertainment expression is an essential

element for the state to satisfy when it relies upon its

authority to adopt time, place, and manner regulations.5 It

follows that, on remand, the district court must rule on whether

the 500 foot version of the Ordinance left adequate alternative

channels for adult entertainment expression. If the 500 foot

version of the Ordinance did not provide adequate alternative

channels, the district court should determine what, if any,

damages Phillips and Vitale suffered as a result of the adoption

of that version of the Ordinance.

Turning to the 300 foot Ordinance, we agree with the

defendants that Phillips and Vitale waived their right to

complain about the district court's considering that version of

the Ordinance. The record of the June 17th hearing clearly

establishes that the district court considered the defendants

bound by Council's September 15th resolution and that it intended

to consider the 300 foot version of the statute in connection

with the plaintiffs' request for injunctive relief. Plaintiffs'

counsel not only failed to object to consideration of that

Ordinance, but also assisted the court in understanding its

effect on the evidence produced at the September 15th hearing and

made a closing argument premised on its adoption.

5. The defendants have relied entirely on the authority of the
Borough to adopt content-neutral time, place, and manner
regulations and have not claimed that Ordinance 31-92 can pass
muster under strict scrutiny review.

28
 On remand, the district court will be required to

adjudicate the constitutionality of the 300 foot version of the

Ordinance in order to determine Phillips' and Vitale's

entitlement to an injunction and to damages arising after its

adoption. Since Phillips and Vitale chose not to appeal from the

district court's determination that this version leaves adequate

alternative channels for adult expression, the district court

need not relitigate that issue in making these determinations.

C. The Necessity of the Presentation of Pre-Enactment Evidence

While we thus agree with appellants that they are

entitled to a reversal of the judgment against them on their

First Amendment claim, we reject their argument that they are

entitled to a mandate requiring the entry of a judgment in their

favor on this claim. Phillips and Vitale read Renton and our

decision in Mitchell as endorsing a per se rule that any

governmental regulation of speech is invalid if the adopting

entity did not have before it, at the time of adoption, evidence

supporting the constitutionality of the action taken. Thus, in

appellants' view, a governmental entity may successfully defend a

First Amendment challenge of the kind here mounted only if it can

show that it was exposed, before taking action, to evidence from

which one could reasonably conclude that undesirable secondary

effects would occur in the absence of legislative action and that

the particular action taken was narrowly tailored to ameliorate

those secondary effects. We find no such rule in Renton,
Mitchell, or any other governing precedent.

29
 There is a significant difference between the

requirement that there be a factual basis for a legislative

judgment presented in court when that judgment is challenged and

a requirement that such a factual basis have been submitted to

the legislative body prior to the enactment of the legislative

measure. We have always required the former; we have never

required the latter. Whatever level of scrutiny we have applied

in a given case, we have always found it acceptable for

individual legislators to base their judgments on their own study

of the subject matter of the legislation, their communications

with constituents, and their own life experience and common sense

so long as they come forward with the required showing in the

courtroom once a challenge is raised. In reliance on this

approach, most municipal and county councils throughout the land

and some state legislatures do not hold hearings and compile

legislative records before acting on proposed legislative

measures. We perceive no justification in policy or doctrine for

abandoning our traditional approach. Moreover, we believe that

insistence on the creation of a legislative record is an

unwarranted intrusion into the internal affairs of the

legislative branch of governments.

If a legislative body can produce in court whatever

justification is required of it under the applicable

constitutional doctrine, we perceive little to be gained by

incurring the expense, effort, and delay involved in requiring it

to reenact the legislative measure after parading its evidence

through its legislative chamber. A record like that presented to

30
the town council in Renton can be easily and quickly assembled,

and a requirement that this be done is unlikely to deter any

municipal body bent on regulating or curbing speech. While we

agree with appellants that the creation of a legislative record

can have probative value on what the lawmakers had in mind when

they acted, we do not understand why its absence should be

controlling when the court is otherwise satisfied that the

legislative measure has a content-neutral target.

The Supreme Court's Renton case and our Mitchell case

sustained the constitutionality of the ordinances before them.

Renton, 475 U.S. at 54-55; Mitchell, 10 F.3d at 144. Thus, they

clearly cannot stand for the proposition that a legislative

record is a constitutional prerequisite to validity.6 Moreover,

in Mitchell, we expressly reserved this issue, observing that it

was "unnecessary . . . to reach or decide whether . . . a statute

6. Most of the cases cited by the dissent upheld the ordinances
at issue, and, just as Renton and Mitchell, cannot stand for the
principle that the lack of a legislative record is a fatal
constitutional defect. National Amusements, Inc. v. Dedham, 43
F.3d 731 (1st Cir.), cert. denied, 115 S. Ct. 2247 (1995);
International Eateries of America, Inc. v. Broward County, 941
F.2d 1157 (11th Cir. 1991), cert. denied, 503 U.S. 920 (1992);
Postscript Enter. v. Bridgeton, 905 F.2d 223 (8th Cir. 1990);
11126 Baltimore Blvd. v. Prince George's County, 886 F.2d 1415
(4th Cir. 1989), vacated on other grounds, 496 U.S. 901 (1990);
Berg v. Health & Hosp. Corp., 865 F.2d 797 (7th Cir. 1989); SDJ,
Inc. v. Houston, 837 F.2d 1268 (5th Cir. 1988); cert. denied, 489
U.S. 1052 (1989). Although the courts did not sustain the
constitutionality of the ordinances in the other cases cited, in
the course of finding those ordinances invalid, Tollis, Inc. v.
San Bernardino County, 827 F.2d 1329, 1333 (9th Cir. 1987), or
constitutionally suspect, Christy v. Ann Arbor, 824 F.2d 489, 493
(6th Cir. 1987), cert. denied, 484 U.S. 1059 (1988), the courts
focused on the failure of the municipalities to present any
evidence justifying the restrictions rather than on the role of a
legislative record.

31
passed without any pre-enactment evidence of need or purpose" can

be valid. Id. at 136.

The only case we have been able to find in which an

argument has been made similar to the one appellants here advance

is Contractors Association v. City of Philadelphia, 6 F.3d 990

(3d Cir. 1993). That case involved a constitutional challenge to

an affirmative action ordinance favoring minorities, women, and

disabled persons in the award of city construction contracts.

The governing law required that the provisions of the ordinance

that drew lines on the basis of race be subjected to strict

scrutiny. Id. at 1000. Thus, the city was required to show that

it had a compelling state interest and that the ordinance was the

least restrictive means of serving that interest. This meant

that the city had the burden of producing a strong evidentiary

basis for concluding that there had been preexisting

discrimination against minorities in which the city had played a

role and that the ordinance was necessary to remedy the

continuing effects of that discrimination. Id. at 1001-02.

The plaintiffs in Contractors urged this court to hold

that the ordinance was unconstitutional if the City Council did

not have before it at the time of the enactment of the ordinance

the required evidentiary basis. We rejected that argument.

While we acknowledged that the City Council did not have the

required strong evidentiary basis before it at the time it acted,

we held that the ordinance could be justified on the basis of

evidence acquired thereafter. Id. at 1003-04.

32
 If we do not insist on a legislative record when we are

required to subject a legislative measure to the highest

scrutiny, we would be hard-pressed to rationalize insistence on a

legislative record when we are, as here, applying a lesser, more

deferential standard of constitutionality.

IV. The Challenge to the Permit Decisions

Appellants contend that their right to substantive due

process was violated when their initial permit applications were

revoked, when Rhodes, in connection with their subsequent

applications, imposed requirements he had not imposed previously,

and when Rhodes simply refused to act even after those

requirements were met. The actions and delay were allegedly the

result of a conspiracy entered into by Rhodes, the Board of

Adjustment and the Mayor because of their dislike of the content

of the materials appellants intended to sell. The reason given

for the revocations (i.e., the erroneous lot numbers) and the new

requirements, according to appellants, were simply pretexts to

mask a motivation that was wholly unrelated to the merit of their

applications. The actions and delay allegedly afforded the

Borough an opportunity to adopt Ordinance 31-92, which was then

advanced as a reason for the denial of the last application. The

district court dismissed the substantive due process count of the

complaint for failure to state a claim.

In the course of evaluating these claims, the district

court observed that "where there is an explicit textual

constitutional provision addressing the alleged wrongs -- as

33
there is here in the form of the First Amendment -- it must be

the guide for liability rather than 'the more generalized notion

of substantive due process.'" App. at 137. The court did not

explain, however, why the allegations of the complaint concerning

the period prior to the adoption of Ordinance 31-92 failed to

state a claim under First Amendment standards.

The analysis of the district court, as far as it goes,

is accurate. It does not follow, however, that these allegations

of the complaint fail to state a substantive due process claim

upon which relief could be granted.

The right to substantive due process conferred by the

Fourteenth Amendment includes the right to be free from state and

local government interference with certain constitutionally

recognized fundamental rights. Reno v. Flores, 507 U.S. 292,

301-02 (1993); Collins v. Harkes Heights, 503 U.S. 115, 125

(1992); Bowers v. Hardwick, 478 U.S. 186, 191 (1986). As we have

noted in connection with the challenge to the Ordinance, among

these fundamental rights are the rights expressly recognized by

the First Amendment in the context of federal government

interference.7 Thus, where a state or local official has
7. The constitutional basis is the same for both the challenge
to the Ordinance and the challenge to the permit decisions.
Both, in theory, are substantive due process claims governed by
First Amendment standards because of the rights allegedly
infringed. The district court's reference to "the more
generalized notion of substantive due process" may be
attributable to the fact that Phillips and Vitale rely, in
addition to First Amendment jurisprudence, on a line of our cases
relating to adjudicative decisions not alleged to have infringed
fundamental rights. E.g., Bello v. Walker, 840 F.2d 1124 (3d
Cir.), cert. denied, 488 U.S. 851, and cert. denied, 488 U.S. 868
(1988); Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d
667 (3d Cir. 1991), cert. denied, 503 U.S. 984 (1992); Parkway

34
(..continued)
Garage, Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir. 1993);
DeBlasio v. Zoning Bd. of Adjustment of West Amwell, 53 F.3d 592
(3d Cir.), cert. denied, 116 S. Ct. 352 (1995); Blanche Road
Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir.), cert. denied,
116 S. Ct. 303 (1995). As the defendants point out, these cases
are arguably at odds with some decisions in other circuits. See,
e.g., Nestor Colon Medina & Sucesores v. Custodio, 964 F.2d 32
(1st Cir. 1992); Shelton v. City of College Station, 780 F.2d 475
(5th Cir.) (en banc), cert. denied, 477 U.S. 905, and cert.
denied, 479 U.S. 822 (1986). Phillips and Vitale claim that the
decisions to deny or delay their permits were based on a distaste
for the content of their speech. The relevant allegations of the
complaint read as follows:

60. In particular, but without limitation, the
Defendants have:

(a) purported to require Phillips and Vitale
to obtain a zoning permit notwithstanding
that they proposed no erection, construction
or structural alteration, and accordingly, no
such permit is required by Ord. 25:1-20;

(b) revoked the zoning permit issued to them
on about March 10, 1992, purportedly because
of misidentification of the property,
notwithstanding that Rhodes first physically
inspected the subject property; was under no
misapprehension as to location or any
particular with respect to the property, and
would have issued the permit had the property
been properly identified;

(c) processed and otherwise dealt with
Phillips' and Vitale's second and third
zoning permit applications, critically and
unfavorably because of the Defendants'
distaste for adult-theme materials;

(d) purposely delayed action on Phillips'
and Vitale's third zoning permit application
so as to permit the Borough Council an
opportunity to introduce and adopt an Adult
Entertainment Use Ordinance, the requirements
of which would render Phillips' and Vitale's
use a prohibited use in a Highway Commercial
District; and

(e) applied an unconstitutional ordinance to
Phillips and Vitale with a purpose to
restrain their sale, rental, exchange and
exhibition of adult-theme videos, as well as

35
prevented or punished constitutionally protected expression

because of distaste for the content of that expression, there is

(..continued)
adult books, magazines and the like because
of their content.

The only improper motivation alleged here is thus distaste for
the content of the speech involved. Because this case involves
only alleged infringements of the right to free expression, the
standard of liability articulated in the above-cited cases is
inapposite here.

36
substantive due process liability unless the defense can show

that the action taken satisfies the strict scrutiny test

prescribed in the First Amendment cases or that the same action

would have been taken in any event for reasons unrelated to the

expression. E.g., Mt. Healthy City Sch. Dist. Bd. of Ed. v.

Doyle, 429 U.S. 274 (1971) (if failure to renew a teacher was

motivated by his exercise of his First Amendment rights and he

would otherwise have been renewed, there is a violation of the

Fourteenth Amendment); Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503 (1969) (students disciplined for wearing arm

bands had their constitutional rights violated if motive was

disapproval of message); Board of Ed., Island Trees Union Free

Sch. Dist. v. Pico, 457 U.S. 853 (1982) (removing books from

library motivated by content disapproval rather than legitimate

educational concerns).

In Nestor Colon Medina & Sucesores, Inc. v. Custodio,

964 F.2d 32 (1st Cir. 1992), the plaintiffs had been denied a

land use permit for the construction of a "tourist residential

complex" in Puerto Rico. The plaintiffs included Dr. Maximo

Cerame Vivas, an outspoken member of an opposition party and a

critic of the government's environmental policies. The

plaintiffs alleged that the permit had been denied in retaliation

for Cerame Vivas's expressions of his political views. The court

reversed a summary judgment in the defendants' favor. It held

that to "the extent Cerame Vivas's substantive due process claim

[was] based on the alleged retaliation for his political views,"

it should be evaluated by First Amendment standards. Id. at 46.

37
 After noting the Supreme Court's holding in Mt. Healthy, the

court concluded that the "same general principle would apply to a

retaliatory refusal to grant a permit", id. at 41, and concluded

that the plaintiffs' evidence was sufficient to permit an

inference that land use planning concerns were but a pretext to

mask a retaliatory motive.

We conclude that Phillips and Vitale have alleged facts

that, if proven, could serve as a predicate for a recovery on

their claim involving permit denial, delay and revocation.

Contrary to the defendants' argument, it seems clear to us from

the face of the Borough's zoning ordinance at the time of their

first application that the proposed use of Lot 61 was a permitted

use in a commercial zone. While the revocation of Phillips' and

Vitale's permits purported to rest on the fact that the authority

conferred by the permits was for Lot 59, which was in a

residential zone, the complaint alleges that everyone had a

common understanding that Lot 61 was the lot in question and

that, but for their dislike of the content of the proposed adult

entertainment expression, Rhodes or the Board of Adjustment would

have corrected the lot number on the permits and affirmed the

authority which Rhodes intended to grant. Similarly, the

complaint alleges that Rhodes and the Mayor interfered with the

processing of the second and third applications solely because of

their antipathy toward the content of the materials Phillips and

Vitale intended to market.

Under these circumstances, we conclude that the

district court was in error when it granted the motions to

38
dismiss the permit claim and that the case must be remanded for

further proceedings on that claim.

We offer one additional observation to assist the

district court in the further proceedings on this claim. We find

nothing improper in a good-faith decision by an authorized public

official to delay action on all applications for authority that

would be affected by a proposed amendment to the governing

ordinance in order to allow a reasonable time for a legislative

body to consider and vote on the proposal. Thus, if a public

official authorized by local law to impose a moratorium on the

issuance of permits imposed such a moratorium for the purpose of

allowing the municipality a reasonable opportunity to consider

whether the secondary effects of adult entertainment uses

required additional zoning regulation, any resulting delay could

not constitute a substantive due process violation. It is by no

means clear, however, that this is what happened here. As the

record develops, it may be that the trier of fact will reasonably

conclude that the delay occasioned by Rhodes or the Mayor was

occasioned not by concern for what the Borough Council might

determine to be undesirable secondary effects, but rather by

distaste for the sexually explicit material, as Phillips and

Vitale allege. The crucial difference in the two situations is

the propriety of the motivation of the official causing the

delay.

V. The Claim for Litigation Expenses under 42 U.S.C. § 1988

39
 It follows from the foregoing discussion that Phillips

and Vitale may prevail on some or all of their federal claims.

To the extent they prevail on those claims, they will be entitled

to an award of reasonable costs and counsel fees under 42 U.S.C.

§ 1988.8

VI. The Equitable Estoppel Claim

Finally, Phillips and Vitale argue that the Borough is

equitably estopped under New Jersey law from revoking the zoning

permit issued by Rhodes on March 9, 1992, and the construction

permits issued on March 18th. Specifically, they contend that

they reasonably relied on those permits to their detriment by

entering into the lease and by "beg[inning] to renovate the

property in order to prepare it for their contemplated use" after

receiving construction, electrical, and plumbing permits.

8. Phillips and Vitale argue that they should be entitled to an
award of the counsel fees they paid in connection with their
efforts to enjoin the 500 foot Ordinance even if they can prove
no compensable damage from that Ordinance and even if they lose
on their other federal claims. Their contention is based on the
following "catalyst theory": (a) the Borough adopted an
unconstitutional 500 foot Ordinance and relied upon it to deny
their application for a permit; (b) they challenged this
Ordinance and demonstrated at an evidentiary hearing that it
suppressed adult entertainment expression altogether; (c) as a
result of their suit and their demonstration, the Borough Council
repealed the 500 foot Ordinance; and (d) accordingly, they are
"prevailing parties" under § 1988 at least to this limited
extent. See, e.g., Baumgartner v. Harrisburg Housing Authority,
21 F.3d 541 (3d Cir. 1994); Dunn v. United States, 842 F.2d 1420,
1433 (3d Cir. 1988). Because the district court failed to
address this "catalyst theory" and because it may ultimately be
unnecessary to resolve the issues thus raised if Phillips and
Vitale are otherwise successful, we express no view on those
issues.

40
Appellants' Brief at 38. Without the zoning permit, they allege,

they would have done neither.

The district court rejected this argument in the course

of denying Phillips' and Vitale's motion for summary judgment.

It concluded that, under Lizak v. Faria, 476 A.2d 1189 (N.J.

1984), Phillips and Vitale could not demonstrate good faith

reliance on the initial zoning permits and, accordingly, were not

entitled to assert a claim of equitable estoppel. On appeal,

Phillips and Vitale argue, inter alia, that Lizak is

distinguishable and that they did rely in good faith on Rhodes'

initial determination.

The doctrine of equitable estoppel is well established

in New Jersey.

To establish a claim of equitable estoppel, the

claiming party must show that the alleged

conduct was done, or representation was made,

intentionally or under such circumstances

that it was both natural and probable that it

would induce action. Further, the conduct

must be relied on, and the relying party must

act so as to change his or her position to

his or her detriment.

Miller v. Miller, 478 A.2d 351, 355 (N.J. 1984); see Carlsen v.
Masters, Mates & Pilots Pension Plan Trust, 403 A.2d 880, 882-83

(N.J. 1979). "A prerequisite of equitable estoppel" is that such

reliance be in "good faith." Lizak, 476 A.2d at 1198. "The

doctrine of equitable estoppel is applied 'only in very

41
compelling circumstances,' 'where the interests of justice,

morality and common fairness clearly dictate that course.'"

Palatine I v. Planning Bd. of Township of Montville, 628 A.2d

321, 328 (N.J. 1993) (citations omitted). In particular,

"equitable estoppel is rarely invoked against public entities,

although it may be invoked to prevent manifest injustice." W.V.

Pangborne & Co., Inc. v. New Jersey Dep't of Transportation, 562

A.2d 222, 227 (N.J. 1989); see O'Malley v. Dep't of Energy, 537

A.2d 647, 650-51 (N.J. 1987).

In Lizak, the Farias had applied for a zoning variance.

476 A.2d at 1191-93. After opposition from nearby residents,

the Woodbridge Township Board of Adjustment denied the variance.

Id. at 1191. However, the board failed to record its

determination in writing. As a result the Farias, under New

Jersey law, were entitled to an automatic grant of the variance.

Id. at 1192. A day after the Woodbridge Municipal Clerk

certified the grant of the variance, the Farias obtained a

building permit, and ten days later they began construction.

Within a month, the exterior of the building was completed at an

estimated expense of $60,000, almost one-half of the estimated

cost of the project. When a nearby resident realized what was

happening, she filed an appeal to the Township Council seeking

revocation of the variance and the permit and an order directing

the removal of the construction. The Farias responded that they

had relied on the issuance of a valid building permit in

proceeding with the construction and that the municipality was

42
equitably estopped from ordering the removal of the existing

structure. Id. at 1193.

The New Jersey Supreme Court rejected the Farias'

argument. Id. at 1198-99. After noting that good faith reliance

is a prerequisite of equitable estoppel, the court explained:
The Farias' conduct . . . does not so much bespeak good
faith reliance as it reveals a "hasty effort
to attempt to acquire an unassailable
position to which [they] equitably should not
be entitled." They knew that their neighbors
objected to the proposal and that the Board
had orally disapproved their application.
Consequently, they reasonably could have
expected further opposition to the
construction. They chose to rely on the
advice of counsel that the Board's failure to
reduce its decision to writing converted its
oral denial into a statutory grant. Although
that advice was correct as far as it went,
the Farias' failure to publish a notice of
approval left the variance subject to appeal
for a reasonable time. In relying on their
attorney's opinion while the underlying
variance was still appealable, they took
their chances. They should not now be heard
to complain.

Id. at 1198 (citation omitted).

Phillips and Vitale, in this appeal, urge that there is

a world of difference between their circumstances and those of

the Farias. However, we reject appellants' effort to limit Lizak
to its admittedly egregious facts. The driving force in that

case was that parties who proceed with construction while their

permits are still appealable "[take] their chances." Id. As the

trial court in Lizak explained,

their reliance can not convert the permit into

something not subject to administrative and

judicial review. They could not reasonably

43
 have relied upon the inviolability of

municipal actions that were still subject to

appeal. The . . . construction official's

action assured [the Farias] that a permit was

issuable, but not that [it] was not

appealable.

Lizak v. Faria, 434 A.2d 659, 664 (N.J. Super. 1981).

To sustain appellants' position here would eviscerate

the appellate process in land use applications. It would

encourage recipients of zoning permits to launch into large-scale

construction or renovation so as to present municipal authorities

with a fait accompli before other affected parties have exhausted

their opportunities to challenge the permit. We believe these

considerations support the clear mandate of the highest court in

New Jersey in Lizak.

VII. Conclusion

The judgment of the district court will be reversed and

the case will be remanded for further proceedings consistent with

this opinion.

44
Phillips v. Borough of Keyport

No. 95-5143

ALITO, Circuit Judge, concurring and dissenting.

I join all but part IV of the opinion of the court. As

I read the plaintiffs' complaint, it asserts a substantive due

process claim under a line of panel decisions that stems from

Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488 U.S.

851 and 868 (1988). See also Blanche Road Corp. v. Bensalem

Township, 57 F.3d 253, 268 (3d Cir.), cert. denied, 116 S.Ct. 303

(1995); DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592, 599-

601 (3d Cir.), cert. denied, 116 S.Ct. 352 (1995); Midnight

Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 683 (3d

Cir. 1991), cert. denied, 503 U.S. 984 (1992). Bello and the

subsequent panel decisions -- which followed Bello, as was of

course required -- seem to hold that substantive due process is

violated whenever a government official who harbors "some

improper motive," Midnight Sessions, Ltd., 945 F.2d at 683,

deprives a person of certain property rights, apparently

including the unrestricted use of the person's real estate. See
DeBlasio, 53 F.3d at 600-01.

Under these decisions, the plaintiffs could prevail on

remand by showing simply that the defendants deprived them of a

protected property interest for some "improper motive"; a motive

that is violative of the First Amendment would not have to be

shown. As the plaintiffs stated in their brief, under Bello,

45
"[i]n the land use context, . . . [w]here there is a deliberate

and arbitrary abuse of government power, an individual's right to

substantive due process may be violated."

Rather than applying (and thus reaffirming) Bello and

its progeny, the majority has transformed the plaintiffs' Bello

claim into what is in essence a First Amendment claim,9 and the

majority thus requires them to show on remand that the defendants

harbored an intent that was violative of the First Amendment.

This narrowing interpretation of the complaint is not proper in

an appeal from an order of dismissal under Fed. R. Civ. P. 12

(b)(6), but this approach permits the majority to evade the

question whether Bello was correct.

Since the plaintiffs have asserted a Bello claim, I

think that the in banc court should confront the question whether

Bello remains good law. If it does, the full court should not be

hesitant to reaffirm it. But if -- as the court's approach here

signals -- the in banc majority is uncertain about Bello's

validity, the court should not skirt the issue. The question is

properly before us; Bello and its progeny are important decisions

that are invoked with some frequency; and a resolution of the

validity of these precedents as components of circuit law would

9.To be sure, as the majority notes, the substantive component of
the Fourteenth Amendment's Due Process Clause incorporates
specific guarantees set out in the Bill of Rights, including the
right to freedom of speech and of the press protected by the
First Amendment, and therefore in this sense every free speech
claim challenging a state action is a substantive due process
claim. But this aspect of the substantive component of due
process is very different from the aspect of substantive due
process on which Bello was based.

46
be useful to the district courts and the bar. The majority's

approach, which leaves these decisions in limbo, may lead to much

wasted litigation before the district courts and before panels of

this court, which are of course bound by Bello until it is

overruled by the in banc court or by the Supreme Court.

As I have previously suggested, see Homar v. Gilbert,

89 F.3d 1009, 1029-30 (3d Cir. 1996) (Alito, J., concurring in

part and dissenting in part), cert. granted on other issue, 117

S.Ct. 678 (1997), I think that Bello was wrong and was based on a

misreading of Supreme Court precedent. In Bello, the plaintiffs

claimed that certain municipal officials had "improperly

interfered with the process by which the municipality issued

building permits, and that they did so for partisan political or

personal reasons unrelated to the merits of the application for

the permits." 840 F.2d at 1129. The panel held that "[t]hese

actions . . . if proven, are sufficient to establish a

substantive due process violation. . . ." Id. at 1129-30.

The panel wrote:
The Supreme Court has discussed the scope of the substantive due
process right in a number of recent cases. In Daniels
v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L. Ed. 2d
662 (1986), the Court, in holding that the due process
clause was not implicated by a state's negligent
deprivation of life, liberty or property, pointed out
that the guarantee of due process has historically been
applied to deliberate decisions of government
officials. Id. at 331, 106 S.Ct. at 665. The Court
noted that the clause was "`"intended to secure the
individual from the arbitrary exercise of the powers of
government,"'" id. (quoting Hurtado v. California, 110
U.S. 516, 527, 4 S.Ct. 111, 116, 28 L. Ed. 232 (1884)
(quoting Bank of Columbia v. Okely, 4 Wheat. (17 U.S.)
235, 244, 4 L. Ed. 559 (1819))), and distinguished the
Daniels case from cases involving an abuse of power.

47
In the related case of Davidson v. Cannon, 474 U.S. 344, 106
S.Ct. 668, 88 L. Ed. 2d 677 (1986), the Court held that
mere negligence on the part of a state does not amount
to an abuse of state power such that constitutional due
process is implicated. Justice Blackmun, dissenting,
noted that he agreed with the majority's conclusion
that a "deprivation must contain some element of abuse
of governmental power, for the `touchstone of due
process is protection of the individual against
arbitrary action of the government.'" Id. at 353, 106
S.Ct. at 673 (quoting Wolff v. McDonnell, 418 U.S. 539,
558, 95 S.Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974). See
also Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L. Ed.
2d 450 (1977) (constitutional due process right to be
free of arbitrary or irrational zoning action); Pace
Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023,
1034-35 (3d Cir.), cert. denied, [482 U.S. 906], 107
S.Ct. 2482, 96 L. Ed. 2d 375 (1987) (to demonstrate
violation of right to substantive due process,
plaintiff must show that land use regulation was
arbitrary or irrational). These cases reveal that the
deliberate and arbitrary abuse of government power
violates an individual's right to substantive due
process.

840 F.2d at 1128-29.

In my view, this analysis is clearly flawed. In the

first place, neither Daniels v. Williams, supra, nor Davidson v.

Cannon, supra, provides much guidance on substantive due process

since neither was a substantive due process case. Instead, both

concerned procedural due process. In Daniels, the plaintiff was

an inmate who alleged that he had slipped and fallen on a pillow

that had been left on the stairs by a correctional deputy. The

Supreme Court summarized his constitutional claim as follows:
[The deputy's] negligence, the argument runs, "deprived" [the
plaintiff] of his "liberty" interest in freedom from
bodily injury . . . ; because [the deputy] maintains
that he is entitled to the defense of sovereign
immunity in a state tort suit, [the plaintiff] is
without an "adequate" state remedy
. . . . Accordingly, the deprivation of liberty was without "due
process of law."

474 U.S. at 328.

48
 This was plainly a procedural, not a substantive, due

process claim. Substantive due process bars certain government

actions irrespective of the fairness of the procedures used to

implement them, Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992), and the plaintiff in Daniels was not arguing that his

due process rights would have been violated even if fair

procedures had been available (i.e., even if he had been able to

obtain a complete recovery for his damages) under state law.

Rather, he was contending that the deprivation of his liberty

interest was "without due process of law" because the state did

not provide adequate post-deprivation procedures.

Similarly, the plaintiff in Davidson asserted a

procedural, not a substantive, due process claim. In that case,

the plaintiff was an inmate who claimed that prison officials had

negligently failed to protect him from a fellow inmate who

attacked him. The Court wrote:
[The plaintiff] emphasizes that he "does not ask this Court to
read the Constitution as an absolute guarantor of his
liberty from assault from a fellow prisoner, even if
that assault is caused by the negligence of his
jailers." Brief for Petitioner 17. Describing his
claim as "one of procedural due process, pure and
simple," id., at 14, all he asks is that [the state]
provide him a remedy.

474 U.S. at 348 (emphasis added).

Justice Stevens' concurrence also emphasized that the

claims in both Daniels and Davidson concerned procedural, not

substantive, due process. He wrote:
I do not believe petitioners have raised a colorable violation of
"substantive due process." 16/ Rather, . . .
Daniels and Davidson attack the validity of the
procedures that Virginia and New Jersey, respectively,

49
 provide for prisoners who seek redress for physical
injury caused by the negligence of corrections
officers.

16/ Davidson explicitly disavows a substantive due process claim.
See Brief for Petitioner in No. 84-6470, p.7
("[P]etitioner frames his claim here purely in terms of
procedural due process"). At oral argument, counsel
for Daniels did suggest that he was pursuing a
substantive due process claim. Tr. of Oral Arg. in No.
84-5872, p. 22. However, the Court of Appeals viewed
Daniels' claim as a procedural due process argument,
see 748 F.2d 229, 230, n.1 (CA4 1984) ("There is no
claim of any substantive due process violation"), and
Daniels did not dispute this characterization in his
petition for certiorari or in his brief on the merits.
. . .

474 U.S. at 340 & n.16. Thus, it seems clear that neither

Daniels nor Davidson was a substantive due process case.

Moreover, neither Daniels nor Davidson provided any

extended or novel discussion of substantive due process. Daniels

devoted one sentence to the topic, see 474 U.S. at 331-32, and

Davidson did not mention it at all.

Despite the fact that Daniels and Davidson were not

substantive due process cases and had little to say about

substantive due process, Bello used them as the basis for an

important substantive due process holding. From them, Bello
extracted the unremarkable proposition that the constitutional

guarantee of due process was intended to protect the individual

against the arbitrary exercise of government power, and Bello

then reasoned that "the deliberate and arbitrary abuse of

government power violates an individual's right to substantive

due process." 840 F.2d at 1129. This reasoning overlooked the

fact that the primary means by which due process protects against

50
the arbitrary exercise of power by government officials is by

requiring fair procedures, i.e., by requiring adherence to

principles of procedural due process. Only in extreme

circumstances is it proper to invoke substantive due process.

In addition to Daniels and Davidson, Bello cited, in

support of its substantive due process analysis, one other

Supreme Court case, Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 263 (1977), and one Third Circuit case,

Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1034-35

(3d Cir.), cert. denied, 482 U.S. 906, reh'g denied, 483 U.S.

1040 (1987). However, Bello seems to have misinterpreted these

decisions in an important respect. Arlington Heights and Pace

Resources stand for the principle that a zoning ordinance

violates substantive due process if the zoning authority could

not have had a rational basis for adopting it. As Pace

explained, "`federal judicial interference with a state zoning

board's quasi-legislative decisions, like invalidation of

legislation for "irrationality" or "arbitrariness," is proper

only if the governmental body could have had no legitimate reason
for its decision.'" 808 F.2d at 1034 (citation omitted)

(emphasis added in Pace). Pace did not suggest that a plaintiff

could state a valid substantive due process claim merely by

alleging that an ill-motivated government official had interfered

with the plaintiff's use of his or her real estate. On the

contrary, Pace held that the challenged government actions in

that case did not violate substantive due process even though a

state court had found them to be "`arbitrary and unjustifiably

51
discriminatory.'" Id. at 1028, 1034 (citation omitted).

Furthermore, Pace quoted with approval a First Circuit case,

Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st

Cir.), cert. denied, 459 U.S. 989 (1982), which stated that a

"conventional planning dispute," "regardless of . . . defendants'

alleged mental states," does not implicate substantive due

process, "at least when not tainted with fundamental procedural

irregularity, racial animus, or the like." Id. at 833 (emphasis

added).

Bello, however, took the highly deferential, objective

test set out in Arlington Heights and Pace -- whether the zoning

authority could have had a rational basis for its action -- and

turned it into a subjective test of good faith, i.e., whether

municipal officials' actions in connection with land use matters

were taken for "partisan political or personal reasons unrelated

to the merits of the application for the permits." 840 F.2d at

1129. This was a significant step, see 2 Ronald D. Rotunda and

John E. Nowak, Treatise on Constitutional Law § 15.4 at 415 n.60

(1992 & 1996 Supp.), and the Bello court did not provide any

explanation for it.

The Supreme Court has stated: "As a general matter,

the Court has always been reluctant to expand the concept of

substantive due process because guideposts for responsible

decisionmaking are scarce and open-ended. . . . The doctrine of

judicial self-restraint requires us to exercise the utmost care

whenever we are asked to break new ground in this field."

Collins, 503 U.S. at 125. However, Bello broke new ground,

52
without acknowledging that it was doing so, and I see nothing in

Bello or the cases that have followed it that convinces me that

every ill-motivated governmental action that restricts the use of

real estate constitutes a violation of substantive due process.

Most of the serious abuses that occur in this area, such as

instances of invidious discrimination, can be redressed by other

means, in either federal or state court or both. Under Bello and

its progeny, however, mundane land-use disputes that belong in

state court are transformed into substantive due process claims

cognizable under 42 U.S.C. § 1983. In addition, these precedents

may well be extended to other fields, such as public employment,

see e.g., Homar v. Gilbert, 89 F.3d at 1021; id. at 1026-28

(Alito, J., concurring in part and dissenting in part). I would

curtail this trend and would overrule Bello and the cases that

followed it. See Chesterfield Dev. Corp. v. City of

Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir. 1992) (holding

that allegations that city arbitrarily applied zoning ordinance

were insufficient to state a substantive due process claim, and

stating in dicta that "[o]ur decision would be the same even if

the City had knowingly enforced the invalid zoning ordinance in

bad faith . . . . A bad-faith violation of state law remains only

a violation of state law."); PFZ Properties, Inc. v. Rodriguez,
928 F.2d 28, 32 (1st Cir. 1991) ("Even assuming that ARPE engaged

in delaying tactics and refused to issue permits for the Vacia

Talega project based on considerations outside the scope of its

jurisdiction under Puerto Rico law, such practices, without more,

do not rise to the level of violations of the federal

53
constitution under a substantive due process label."), cert.

dismissed, 503 U.S. 257, reh'g denied, 504 U.S. 935 (1992);

Rivkin v. Dover Tp. Rent Leveling Bd., 143 N.J. 352, 371, 671

A.2d 567, 577 (holding that substantive due process was not

violated when rent leveling board member acted in biased manner,

and disagreeing with Bello because "we seriously doubt that the

Supreme Court will find a substantive due process violation to

exist when a governmental body denies a property right by conduct

that is 'arbitrary or irrational' under state law but neither

shocking to the conscience of a court in the sense of being a

departure from civilized norms of governance, nor offensive to

human dignity") (citation omitted), cert. denied, 117 S.Ct. 275

(1996).

Thus, while I would remand the plaintiffs' First

Amendment claim, both with respect to the defendants' pre- and

post-ordinance conduct, I would affirm the dismissal of the

plaintiffs' substantive due process claim.

54
Phillips, et al. v. Borough of Keyport, et al.
No. 95-5143

ROSENN, Circuit Judge, dissenting.

Although I agree with the majority's analysis of the

facts and much of the law, I differ with them with respect to

Part III (C), "The Necessity of Pre-Enactment Evidence." The

majority concludes that a municipality may constitutionally enact

an ordinance restricting the expression of speech without any

legislative record before it justifying such restrictions. I

believe that the Borough of Keyport's failure to articulate at

the time of enactment any governmental interest justifying its

ordinance No. 31-92, designed to curb protected speech

expression, is a fatal constitutional defect. The defect cannot

be cured by allowing the municipality to structure a post hoc

record more than four years later and then after judicial review

by a trial and appellate court.

I.

The majority and I agree that speech, whether in the

form of film, print, or live presentations, though sexually

explicit in content but not obscene, is protected under the First

Amendment. Maj. op. at 14-16. We further agree that when a

legislative body acts to regulate speech on the basis that its

action serves a substantial, content-neutral state interest, as

Keyport Borough did in this case, it must come forward with

evidence of adverse social effects that justify reasonable time,

55
place, and manner restrictions on speech or expressive conduct;

the municipality must support its position "with a reasoned and

substantial basis demonstrating the link between the regulation

and the asserted governmental interest." Maj. op. at 16, quoting

Mitchell v. Commission on Adult Entertainment, 107 F3d 123, 132

(3d Cir. 1993). It is undisputed that Keyport Borough failed

this indispensable requirement. It is also undisputed that the

district court sustained the constitutionality of the Keyport

ordinance which substantially burdened the exercise of protected

speech "without a record supporting the reasonableness of any

legislative expectations" that warranted its findings pertaining

to the likelihood of secondary effects and the ameliorative

effect of the ordinance.
[W]e do not yet know how the Borough will seek to
justify the ordinance. There is no
articulation by the state of what
it perceives its relevant interests
to be and how it thinks they will
be served. This is particularly
troublesome in a case like this,
where the legislative findings
speak in terms of "serious
objectionable operational
characteristics," "deleterious
effects," and "the deterioration of
the community" without identifying
in any way those [considerations].
Maj. op. at 18.

Where we part company, however, is that the majority,

in the face of a decision of the Supreme Court and decisions of a

substantial number of United States courts of appeals to the

contrary, holds today that a legislative body need have no record

before it at the time of enactment justifying an ordinance

56
regulating protected speech. Although I fully empathize with the

efforts of the Borough of Keyport to preserve a wholesome quality

of community life, I cannot lend my support to the majority's

potentially dangerous disregard of an established safeguard in

protection of cherished First Amendment rights, namely, a record

at the time of enactment justifying the restrictive regulation of

protected speech.

There is no question that local legislative bodies are

to be afforded great deference when it comes to zoning matters.

Rogin v. Bensalem Township, 616 F.2d 680, 698 (3d Cir. 1980).

The Supreme Court, however, has made clear that the latitude

generally afforded legislatures may be narrowed when First

Amendment concerns are at stake. See, e.g., Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1977).

Although sexually oriented materials are due less protection than

other forms of expression, Young v. American Mini Theatres, 427

U.S. 50, 70 (1975), their regulation by zoning nonetheless

triggers a heightened level of scrutiny. Courts have reconciled

respect for local land regulation concerns with the protection of

speech by requiring that municipalities impose restraints on

adult entertainment establishments only where there is evidence

that they have deleterious "secondary effects" upon the adjacent

areas. Id. at 71 n.4.
Although adult entertainment establishments may provide

a form of entertainment that is not without any First Amendment

protection from municipal authority, see Schad v. Mt. Ephraim,
452 U.S. 61, 65 (1980); American Mini Theatres, 427 U.S. at 59,

57
the majority's position that the evidence may be developed at any

time after the zoning enactment until challenged in court runs

counter to the purpose of such an evidentiary requirement, the

view taken by the Supreme Court in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), and by virtually every other

circuit in this country.

We are not free to ignore the purpose of the

requirement and the binding precedent. Thus, I find the majority

view on this issue unacceptable. The majority makes several

sweeping statements to the effect that this court has "never"

required more of a municipality than it make the required showing

once a challenge to legislation is raised. It ignores the

significance of the timing for the evidentiary record to justify

the restrictive impositions of speech; if speech is to be so

restricted, the justification should be stated at the time of

enactment so that appropriate judicial scrutiny might be made.

The majority offers no support whatsoever for its statements, and

I do not believe such support exists in our precedents with

respect to the regulation of protected speech.

Renton stands only for the proposition that a

municipality need not conduct its own pre-enactment studies

(i.e., that it may rely on studies conducted by other

communities). The unavoidable inference from Renton is that the

municipality must rely upon something at the time of enactment

justifying its action limiting freedom of speech. The various

courts of appeals, including our own in Mitchell, supra, have
emphasized the Supreme Court's statement that

58
[t]he First Amendment does not require a city, before
enacting such an ordinance, to conduct new
studies or produce evidence independent of
that already generated by other cities, so
long as whatever evidence the city relies
upon is reasonably believed to be relevant to
the problem that the city addresses.

Renton, 475 U.S. at 51-52 (emphasis added). Accordingly, not a

single court of appeals has interpreted Renton as requiring

absolutely no pre-enactment evidence.10 The position adopted by

the majority leaves the Third Circuit an outlier among the United

States courts of appeals.

The majority asserts that because Renton and Mitchell

sustained the constitutionality of the ordinances before them,

they cannot stand for the proposition that a legislative record

is a constitutional prerequisite to validity. I strongly

disagree. Both the Renton Court and the Mitchell court leave no

doubt that pre-enactment evidence is indeed a constitutional

requirement; the courts sustained the ordinance in question

because they were satisfied that the enacting body had sufficient

evidence before it. See Renton, 475 U.S. at 51-52; Mitchell, 10

F.3d at 134-35.

The majority also maintains that in Mitchell, this
court expressly reserved the issue of whether pre-enactment

evidence is necessary. Again, I disagree. Mitchell plainly

10.The Supreme Court itself, in a case decided four years after
Renton, seems to assume that at least some pre-enactment evidence
is required in this type of case. "We agree with the Court of
Appeals that the reasonableness of the legislative judgment,
combined with the Los Angeles study, is adequate to support the
city's determination . . .." FW/PBS, Inc. v. Dallas, 493 U.S.
215, 236 (1990) (emphasis added).

59
requires such evidence. The skillful use of ellipses ought not

to allow us to circumvent binding precedent. The majority

asserts that Mitchell says that it was "unnecessary . . . to

reach or decide . . . whether a statute passed without any pre-

enactment evidence of need or purpose" can be valid. The full

quotation, sans ellipsis, makes quite a different point. It

reads: "Here, it is unnecessary for us to reach or decide

whether the doctrine of legislative notice of the incidental

activities common to adult book stores can save a statute passed

without any evidence of pre-enactment evidence of need and

purpose." Mitchell, 10 F.3d at 136 (emphasis added).

We are thus bound by both Supreme Court precedent and

the precedent of our own circuit to require at least some

evidence at the time of adoption before we sustain a restrictive

ordinance of the type currently before us. The majority is of

the view that the legislative body need have no factual basis

before it at the time of the enactment of the ordinance, and that

such a requirement is only necessary when the legislative

judgment is challenged in court. Maj. op. at 30. If we look to

cases decided in our sister circuits, we also see that no other

circuit in this country has espoused the extreme, and I believe

incorrect, position taken by the majority. Cases similar to the

one at bar have been decided in the First, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, and Eleventh Circuits.11 Every one of
11.National Amusements, Inc. v. Dedham, 43 F.3d 731, 742 (1st
Cir.) (stating that a legislative body may rely on whatever pre-
enactment evidence it considers to be relevant), cert. denied,
115 S. Ct. 2247 (1995); 11126 Baltimore Blvd. v. Prince George's
County, 886 F.2d 1415, 1421-23 (4th Cir. 1989) (finding pre-

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these circuits has interpreted Renton to require pre-enactment

evidence, and every one of these circuits has insisted upon such

evidence before affirming the constitutionality of a restrictive

zoning ordinance.

The majority argues that most of the cases I cite from

other circuits sustained the ordinance and "therefore cannot

stand for the principle that the lack of a legislative record is

a fatal constitutional defect." Maj. op. at 32, n. 6. Those

ordinances that were sustained, however, did have legislative

records at the time of their enactment. Those held

constitutionally defective, Tollis, Inc. v. San Bernardino

County, 827 F.2d. 1329 (9th Cir. 1987), or constitutionally
(..continued)
enactment evidence of secondary effect "sufficient under Renton
to withstand a constitutional challenge"), vacated on other
grounds, 496 U.S. 901 (1990); SDJ, Inc. v. Houston, 837 F.2d
1268, 1274 (5th Cir. 1988) ("We are persuaded that the City met
its burden under City of Renton to establish that there was
evidence before it from which the Council was entitled to reach
its conclusion . . .."), cert. denied, 489 U.S. 1052 (1989);
Christy v. Ann Arbor, 824 F.2d 489, 493 (6th Cir. 1987)
("Although both the Supreme Court in Renton and the Sixth Circuit
. . . have stated that a city need not conduct new independent
studies to justify adult business zoning ordinances, both courts
have required some relevant evidence to demonstrate that the
zoning ordinance was intended to address the secondary effects of
adult businesses"), cert. denied, 484 U.S. 1059 (1988); Berg v.
Health & Hosp. Corp., 865 F.2d 797, 803-04 (7th Cir. 1989)
(detailing the pre-enactment evidence and testimony upon which
governmental body relied); Postscript Enter. v. Bridgeton, 905
F.2d 223, 227 (8th Cir. 1990) (upholding an ordinance after
determining that the city council's pre-enactment findings were
adequate); Tollis Inc. v. San Bernardino County, 827 F.2d 1329,
1333 (9th Cir. 1987) ("The County must show that in enacting the
particular limitations . . . it relied upon evidence permitting
the reasonable inference that, absent such limitations, the adult
theaters would have harmful secondary effects"); International
Eateries of America, Inc. v. Broward County, 941 F.2d 1157, 1163
(11th Cir. 1991) (noting that Broward County had relied on the
experiences of Detroit in enacting its ordinance), cert. denied,
503 U.S. 920 (1992).

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suspect, Christy v. Ann Arbor, 824 F.2d. 489 (6th Cir. 1987).

cert. denied, 484 U.S. 1059 (1988), did not have legislative

records.

The majority also looks for support to the decision by

this court in Contractors Ass'n v. City of Phila., 6 F.3d 990 (3d

Cir. 1993). Aside from the fact that Contractors is inapposite

in that it was an affirmative action case, principally sought

injunctive relief, and did not involve free speech, it does not

stand for the proposition that pre-enactment evidence is

unnecessary. We simply stated in Contractors that the pre-

enactment evidence considered by the Philadelphia City Council

could be supplemented by post-enactment evidence at the time the

case went to trial. Id. at 1003-04. Moreover, we were uncertain

whether the supplemental evidence did not in fact constitute pre-

enactment evidence because it was a study involving minimal risk

of "insincerity associated with post-enactment evidence" for it

consisted "essentially of an evaluation and re-ordering of pre-

enactment evidence. . . ." Finally, the court was strongly

influenced in permitting the admission of the post-enactment

study because "the principal relief sought, and the only relief

granted by the district court, was an injunction." Id. at 1004.
At this juncture, the effects of adult entertainment

establishments are so open and notorious that requiring

legislative bodies to consult studies or other evidence

confirming their deleterious impact may seem unnecessarily

burdensome -- just another hoop to jump through in the process of

lawmaking. However, this requirement is not without purpose. It

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limits the risk that legislatures will impose restrictions on

speech activities on the basis of supposed secondary effects that

on closer scrutiny lack any evidentiary support, and it lends

support to the representation that the content-neutral interest

articulated by the lawmaking body was not merely pretextual and

illicitly designed to suppress speech expression, even that

constitutionally protected.12 I am as sympathetic as the

majority to Keyport's well-intentioned purpose of preserving its

community life, but the First Amendment cases show that "in those

instances where protected speech grates most unpleasantly against

the sensibilities that judicial vigilance must be at its height."

Young v. American Mini Theatres, 427 U.S. at 87 (Stewart, J.,

dissenting). Because the Borough of Keyport had no evidence of

deleterious secondary effects before it when it enacted its

restrictive zoning ordinance, our jurisprudence requires that we

strike down the ordinance as unconstitutional.

II.

Accordingly, I believe that we must reverse the

district court's grant of the defendants' motion to dismiss on
12.The majority suggests that this modest procedural hurdle will
be of little practical effect against a "municipal body bent on
regulating or curbing speech." Maj. op. at 31. I agree that a
legislature determined to restrict forms of speech to which it is
hostile may be able to conceal its impermissible motive behind a
quickly assembled evidentiary fig leaf. At the same time, I
would reasonably expect that the pre-enactment justification
requirement might act as a shield for the First Amendment not
merely from those with ill intent, who may be able to circumvent
any procedural requirements imposed, but also from
constitutionally-minded legislators driven by haste or
misconception.

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the due process claims and reverse the district court's denial of

plaintiffs' motion for summary judgment on the First Amendment

challenge to the "adult entertainment uses" ordinance No. 31-92.

For the reasons stated above, I would hold that the ordinance

does violate the First Amendment, strike it down, and remand the

case to the district court to consider plaintiffs' request for

damages. Finally, I would vacate the denial of attorney's fees

and also remand this issue to the district court for further

proceedings.

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