HARDING BRASS LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HAMILTON et al
Filing
18
OPINION. Signed by Judge Joseph E. Irenas on 4/23/2015. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HARDING BRASS, LLC,
HONORABLE JOSEPH E. IRENAS
Plaintiff,
CIVIL ACTION NO. 13-6211
(JEI/JS)
v.
OPINION
ZONING BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF
HAMILTON, and THE TOWNSHIP
OF HAMILTON,
Defendants.
APPEARANCES:
F. MICHAEL DAILY, JR. LLC
By: F. Michael Daily, Jr., Esq.
216 Haddon Avenue, Suite 100
Westmont, New Jersey 08108
Counsel for Plaintiff
RICHARDSON, GALELLA & AUSTERMUHL, LLC
By: Allan E. Richardson, Esq.
Linda A. Galella, Esq.
142 Emerson Street
Woodbury, New Jersey 08096
Counsel for Defendants Hamilton Township and its Zoning
Board
IRENAS, Senior United States District Judge:
Plaintiff Harding Brass, LLC, operates, or seeks to operate,
an adult entertainment facility and juice bar in Hamilton
Township.
When Harding Brass applied for a business license and
repair permits in 2013, the zoning board originally denied the
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application.
In 2014, after this lawsuit was filed, Harding Brass
reapplied and received a favorable decision.
Hamilton Township moves for summary judgment.
The sole issue
remaining in this suit is whether Hamilton Township originally
denied Harding Brass’ application because Harding Brass is a strip
club where female performers dance “partially covered.” (Pl’s Ex.
B, 9:21-25) 1
Harding Brass has not sustained its burden of
pointing to record facts creating an issue for trial.
Accordingly, the motion will be granted.
I.
In August, 2013, Harding Brass applied to the Hamilton Zoning
Board to register a business and obtain repair permits. (Pl’s Ex.
D)
On September 23, 2013, the Board considered the application at
an open meeting.
What took place, and what was said, during the
meeting is not in dispute; the meeting was transcribed and the
entire transcript is part of the summary judgment record at
Plaintiff’s Exhibit B.
The Board Resolution that resulted is also
in the record.
The Court exercises federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction
pursuant to 28 U.S.C. § 1367.
Plaintiff has conceded that summary judgment is appropriate
on Count 1 (review of the zoning board’s decision) and Count 3
(equal protection) of the three-count complaint. See Opposition
brief, p. 1-2. Count 2, the § 1983 First Amendment claim,
remains.
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As fully set forth in the transcript and resolution, the
issue facing the Board on the night of September 23, 2013 was
whether Harding Brass’ use of the subject property as an adult
entertainment establishment was a preexisting nonconforming use.
The factual inquiry focused on whether, from July 1985 to the
present, the property had been continuously used as an adult
entertainment establishment.
It is undisputed that Harding Brass
had the burden of proof.
Harding Brass presented the testimony of three witnesses:
Timothy Granzow, a principal of Harding Brass’ lessor; and two
previous patrons of the property, Brian Donahue and Richard
Cantoni.
Granzow testified that he had found documentation going back
to 1999 that the property had been used for adult entertainment.
(Pl’s Ex. p. 13)
He further testified that he had no personal
knowledge whether in 1982 the property “had adult entertainment in
the form of dancing girls.” (Id. at p. 13)
Notably, the following exchange took place between Granzow
and a Board Member:
[Granzow]: [The property] was always, as far as
I can determine from talking to people,
remembering from my own recollection, [the
property] was [a strip club].
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Board Member: Your recollection, and you were
three years old. 2
[Granzow]: Well, in ‘91 I was 12 years old and
I remember (indiscernible). So it was always,
from what I know . . . it’s been a strip club
for at least since 1980.
Board Member:
I think that’s what we need a
determination in ‘83, ‘84 . . . Your evidence, I
think, is not supporting it.
(Pl’s Ex. B, p. 22)
Donahue testified that he visited the property once in the
summer of 1982 and saw adult entertainment performances.
Ex. B, p. 29, 31)
(Pl’s
He further testified that in the 1980s and
1990s, he visited the property and saw adult entertainment but
could not be more specific on when or how frequently he went:
“Over the years, I would say-- I don’t know if you’d want to say a
couple times a year or--.”
(Id. at p. 32)
remember the last time he was there.
He said he could not
(Id.)
Additional questioning by Board Members elicited that during
the relevant time period, Donahue lived in Brigantine, New Jersey,
(82 miles away from Hamilton Township) and Galloway, New Jersey
(68 miles away); and that Donahue was friends with the applicant.
(Pl’s Ex. B, p. 33-35)
Granzow testified earlier at the hearing that he “just turned
34.” (Pl’s Ex. B, p. 7)
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2
Cantoni testified that, in 1981, he considered buying the
property but did not because his wife did not like that the
property was used for adult entertainment.
(Pl’s Ex. B, p. 38)
He also testified that he went to the property once after March of
1983 and that there was adult entertainment at the property at
that time.
(Id. p.
at 39)
When asked the last time he had been
to the property, he testified, “Oh God. I don’t know.
Three or
four years ago.” (Id. at p. 41)
Cantoni admitted that he was asked to testify at the hearing
by his “friend for years” who held an ownership interest in
Harding Brass.
(Pl’s Ex. B, p. 40)
Of the seven board members, six voted against the application
and one abstained.
Their reasons for their votes were quite
consistent.
Board Member Tomasello stated:
I would love to see a newspaper article, a flyer,
a telephone listing something that said this type
of entertainment was in there.
We’re all relying on people’s faulty
memories . . . .
If I had seen one independent person or one
independent document that said [that adult
entertainment has] been going on there prior to
‘85 I would be convinced, and I wouldn’t have a
problem with it. But I think we’re being asked
to take this based on people’s faulty memories.
(Pl’s Ex. B, p. 84)
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Board Member Zimmerman stated, “We have to weigh the totality
of the evidence, and the only evidence that’s brought in has been
oral testimony from 30 years ago.”
(Pl’s Ex. B, p. 92)
Board Member Cain stated,
it’s still a burden of proof on the applicant.
And I did listen to the witnesses. As fuzzy as
that may be to an extent. I mean they’re going
back to the early parts of the business . . . .
There’s nothing from the applicant proving that
somewhere along the line that there was never a
break in the continuous use.
(Pl’s Ex. B, p. 94)
Board Member Choyce said,
We have sporadic-- we have testimony that can say
there was use during certain years in the early
‘80s, the mid-‘80s. We don’t-- I don’t see from
1985 to 2010 is a long time span, and I’m not
seeing a lot of tangible evidence that says there
wasn’t a break or a change . . . I’m going to
have to vote [against the application] because I
just
don’t
feel
I
have
enough
concrete
information to support that there’s been a
continuous use.
(Pl’s Ex. B, p. 95)
Board Member Strigh said, “the burden of proof is on the
applicant. . . . the proof that it was a continuous use was just
not there.”
(Pl’s Ex. B, p. 95)
Board Member Samuelsen stated, “not having a concrete
timeline I think is a determining factor in this.”
p. 96)
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(Pl’s Ex. B,
Board Member Christman abstained, explaining, “I don’t
disagree with what has been said but . . . . There’s a lot
missing. . . .
I just don’t see it. . . . And I can’t make a
decision here.
I honestly can’t.”
(Pl’s Ex. B, p. 95)
On February 24, 2014, the Board held another hearing on the
zoning application.
This time, Harding Brass presented testimony
from 10 witnesses and an Atlantic City Press article in support of
its application.
approved.
(Pl’s Ex. E)
The application was unanimously
(Id.)
II.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment should be granted if “pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits,
if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.”
See also, Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In deciding a motion for summary judgment,
the court must construe all facts and inferences in the light most
favorable to the nonmoving party.
See Boyle v. Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).
The moving party
bears the burden of establishing that no genuine issue of material
fact remains.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
A fact is material only if it will affect the outcome of
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a lawsuit under the applicable law, and a dispute of a material
fact is genuine if the evidence is such that a reasonable fact
finder could return a verdict for the nonmoving party.
See
Anderson, 477 U.S. at 252.
III.
There is simply no evidence in the record supporting an
inference that the Board or Township acted for a reason prohibited
by the First Amendment when the Board originally denied Harding
Brass’ application.
All of the record evidence supports only one conclusion.
The
Board Members based their September 23, 2013 decision on a
content-neutral reason: the insufficiency of Harding Brass’
evidence concerning continuous use-- irrespective of what that
“use” was.
The lack of evidence is supported by the record.
At
the September hearing, Harding Brass put forth little to no
evidence to account for more than a decade of time-- approximately
the late ‘80s to 1999.
This, coupled with the potential biases
and vague memories of all of the witnesses presented, supported
the Board’s decision.
Moreover, nothing in the record supports an inference that
the reasons given individually by each member of the Board were
pretext for a constitutionally prohibited motive.
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Indeed, once
the asserted reason for denying the application was cured, the
Board unanimously approved Harding Brass’ application.
Harding Brass has failed to point to any record evidence that
would lead a reasonable factfinder to conclude that the zoning
board or Hamilton Township denied Harding Brass’ application
because Defendants disapproved of the adult entertainment that
would take place on the property.
Accordingly, Defendants’ Motion
for Summary Judgment will be granted.
IV.
For the reasons set forth above, Defendants’ Motion for
Summary Judgment will be granted in its entirety.
An appropriate Order accompanies this Opinion.
Dated:
April 23, 2015
s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.
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