NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 1 8

- 1846

_____________ TERRY SUTTON, d/b/a Cinkaj Brogue Limited Partnership; BRENDA SUTTON, d/b/a Cink aj Brogue Limited Partnership; CHRIS CINK AJ, d/b/a Cinkaj Brogue Limited Partnership

v. CHANCEFORD TOWNSHIP; TIMOTHY J. BUPP, Solicitor, Chanceford Township in his individu al and official capacities; JOHN SHANBARGER, JR., Chair, Chanceford Township Planning Commission, in his individual and official capacities; BRUCE MILLER, Vice Chair, Chanceford Township Planning Commission, in his individual and official capacities; MARK A. BUPP, Vice Chair, Chanceford Township Planning Commission, in his individual and official capacities; RALPH DAUGHERTY, Member, Chanceford Township Planning Commission, in his individual and official capacities; THOMAS GIZZI, SR., Member, Chance ford Township Planning Commission, in his individual and official capacities; ROBERT LYTER, Member,

Chanceford Township Planning Commission, in his individual and official capacities; BRENDA GOHN, Secretary, Chanceford Township Planning Commission, in her individual and official capacities; BRADLEY K. SMITH, Chair, Chanceford Township Board of Supervisors, in his individual and official capacities; KENT E. HEFFNER, Vice Chair, Chanceford Township Board of Supervisors, in his individual and official capacities; CLIFTON M. BALDWIN, Member, Chanceford Township Board of Supervisors, in his individual and official capacities; DAVID HOPKINS, Chair, Zoning Hearing Board Chanceford Township, PA, in his individual and official capacities; MARK FREY, Membe r, Zoning Hearing Board Chanceford Township, PA, in his individual and official capacities; DAVID J. HIVELY, Member, Zoning Hearing Board Chanceford Township, PA, in his individual and official capacities; JEFFREY L. KOONS, Zoning Officer, Chanceford T ownship, PA,2 in his individual and official capacities; GRANT A. ANDERSON, Township Engineer, in his individual and official capacities TERRY SUTTON; BRENDA SUTTON; CHRIS CINKAJ, Appellants

_____________ On Appeal from the United States Distric t Court for the Middle District of Pennsylvania (No. 1

- 14

- cv - 0 1 584 ) District Judge: Honorable Martin C. Carlson Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 22 , 2019 Before: CHAGARES and BIBAS , Circuit Judges , and S ÁNCHEZ, Chief District Judge +

. (Filed February 13, 2019 )

___________ OPINION *

____________ CHAGARES, Circuit Judge

. Appellant Terry Sutton 1 sought to operate an adult entertainment club inside a shopping center he owned in Chanceford Township, Pennsylvania. But the Township’s Zoning Hearing Board rejected his application for a permit. So Sutton sued the

+ The Honorable Juan Sánchez , Chief Unite d States District Judge for the Eastern District of Pennsylvania , sitting by designation.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 Terry Sutton’s wife, Brenda, and his business partner, Chris Cinkaj, are also appellants. Because they all advance the same claims, w e refer only to Terry for ease of reference.3

Township and many of its officials, arguing, among other things, that the Township’s special requirements for a dult entertainment facilities violate the First Amendment, both facially and as applied, and that the Board’s rejection of his application also violated his right to substantive due process. The District Court granted summary judgment in favor of the Town ship, and, for the following reasons , we will affirm.
I. Because we write solely for the parties, we recite only the facts essential to our disposition. Chanceford Township, like many municipalities, has a zoning ordinance to regulate development

. The ordinance divides the T ownship into five zones, and within each one, some uses are generally permitted , some are prohibited, and others are permitted by “special exception.” J oint A ppendix (“J.A.”) 165

– 66

. 2 A use permitted by special exception requires a permit from the Zoning Hearing Board. B efore grant ing any application for a special exception, the Board must make several findings, including that the applicant has established that the proposed use will co mply with certain sewage

disposal and ground

- water recharge requirements

. One use permitted in the T ownship’s General Commercial Zone as a special exception is an “adult oriented facility.” J.A. 165. As such, it must be approved by the Zoning Hearing B oard, no different from any other use permitted by special exception.

2 We note that two consecutive pages in the Joint Ap pendix are labeled as J.A. 165. When citing this page, we refer to the second page labeled J.A. 165 , which contains a table of permitted and special exception uses.4

But the o rdinance also subjects adult oriented facilities, specifically, to s everal additional requirements:

 that there be no outward displ ay of any materials or signage related to th e adult entertainment offered inside ;

 that the facility be windowless or not viewable from the outside ;

 that it contain a notice on every entrance explaining that people under eighteen are not permitted and that others may be offended by the entertainment;

 that it have a certain number of parking spaces;

 that it be at least 1,000 feet “from any public or parochial school offering
education below the college level, church, library, child day care, or nursery school, including church r elated nursery school”;

 that, if that 1,000

- foot distance “cannot practically be achieved,” the facility
still must be more than 500 feet from such places, and there must be a six

foot tall “security fence” around the facility; and

 that the facility have t rees or shrubs around its perimeter “to form an effective visual barrier between [it] and any residence, school, recreation facility, or other non

- commercial or non

- industrial use.”
J.A. 206

– 07. In March 2013, Terry Sutton applied for a special excepti on to use part of his property as an adult cabaret featuring nude female dancers

. The Zoning Hearing Board5

held a hearing and then, i n a written decision, denied the application. It f irst explained that, under the zoning o rdinance, a shopping center can consist only of “stores,” which the cabaret was not. J.A. 957

. The Board further explained that, regardless, the application failed to demonstrate that the proposed use would meet the sewage - disposal and ground

- water recha rge requirements required for a ny special exception under the zoning o rdinance. And f inally, the Board explained that the cabaret, because it would feature nude dancing while also permitting patrons to bring in their own alcohol , would violate state law , which proh ibits lewd entertainment in a “bottle club. ” 18 Pa. Cons.
Stat. § 7329. Because the proposed use would be unlawful, the Board found that it would constitute a “nuisance” prohibited un der Section 301.1 of the o rdinance

. J

. A . 961.
In response, Sutton filed a complaint against Chanceford Township 3 in federal
court, asserting claims under both federal and Pennsylvania law. Most relevant to this appeal, he claimed that the Township’s o rdinance violated the First Amendment, bo th facially and as ap plied , and that the Township, in denying his application, violated his Fourteenth Amendment right to substantive due process

. The District Court granted summary judgm ent in favor of the Township, and Sutton timely appealed.
II. We have jurisdiction und er 28 U.S.C. § 1291, and the District Court had jurisdiction under 28 U.S.C. § § 1331, 1343, and 1367. Our review of a grant of summary judgment is de novo

. Thomas v. Cumberland Cty. , 749 F.3d 217, 222 (3d Cir. 2014)

.

3 The lawsuit also named various Chanceford officials as defendants.6

Summary judgment is appropriate when , viewing the evidence in the light most favorable to the non

- movant, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
III. Sutton present s three arguments: that the Township’s o r dinance’s restrictions on
adult entertainment facilities facially violate the First Amendment; that t hose restrictions were unconstitutional as applied here; and that the Board, in rejecting his application, violated his right to substantive due process. None have merit.
A. We start with the facial challenge. The Supreme Court has held that “zoning ordinances designed to combat the undesirable secondary effects of [adult] businesses are to be reviewed un der the standards applicable to ‘content

- neutral’ time, place, and manner regulations.” City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 49 (1986). That is, such zoning ordinances are valid when “they are narrowly tailored to serve a significant o r substantial government interest” and also “leave open ample alternative channels of communication.” Phillips v. Borough of Keyport , 107 F.3d 164, 172 (3d Cir. 1997) (en banc) (quoting Mitchell v. Comm’n on Adult Entm’ t Establishments , 10 F.3d 123, 130 ( 3d Cir. 1993)). In applying the “secondary effects” doctrine, we have required municipalities to “identify the justifying secondary effects with some particularity,” and “offer some record support for the existence of those effects and for the [o]rdinance ’s amelioration thereof.” Id. at 175

. But a municipality need not “conduct new studies or7

produce evidence independent of that already generated by other cities, so long as whatever evidence [it] relies upon is reasonably believed to be relevant to the p roblem that [it] addresses.” Renton , 475 U.S. at 51

– 52. Sutton argue s that the Township failed to prove that the purpose of its restrictions on adult entertainment facilities was to combat th eir secondary effects. But even viewing the record in the light mos t favorable to Sutton , we conclude otherwise

–– th ere is no genuine dispute that the Township acted to address the secondary effects of adult entertainment facilities

. To be sure, as Sutton point out s , the evidence of the T ownship’s consideration of secondary effects is thin

. But the evidence is there. T he T ownship has produced sworn affidavits from multiple officials involved in passing the adult entertainment restrictions demonstrating that the “principal concer ns ” were with “ orderly growth, traffic, health and safety, and crime.” J

. A

. 156; see also J

. A . 516

– 17; 1210. And the Township has “offer[ed] some record support for the existence of those effects and
for the [ o ] rdinance’s amelioration thereof.” Phillips , 107 F.3d at 175. The Township’s
then

- Chairman of the Board stated, under penalty of perjury, “that studies had been performed in other municipalities demonstrating a direct relationship between the presence of [adult] facilities and increases of crime a nd decreases in surrounding property values.” J

. A

. 157. Moreover, the Township’s then

- Solicitor testified that he reviewed various court decisions, as well as legislative findings, discussing the nega tive secondary effects of adult entertainment businesses. See J

. A

. 1051

– 53; see also 68 Pa. Cons. Stat. § 5501(a)(1) (“There are within this Commonwealth a number of adult

- oriented establishments which require special regulation by law and supervision by public safety8

agencies in order to protect and preserve the health, safety and welfare of patrons of these establishments, as well as the health, safety and welfare of the citizens of this Commonwealth.”). And we have held that municipalities are entitled to rely on the legislative find ings of their home state. See Ben Rich Trading, Inc. v. City of Vineland , 126 F.3d 155, 160

– 62 (3d Cir. 1997). Sutton d oes not contest these findings. In sum, the record demonstrates that the o rdinance “was passed to control the socially undesirable
eff ects incidental to the operation of adult entertainment establishments.” Mitchell , 10 F.3d at 137. The o rdinance , accordingly, pass es constitutional muster so long as it is “narrowly tailored” and “leave [ s ] open adequate alternative channels of communication.” Id. at 139. Th at is the case here. Indeed, Sutton offer s no argument to the con trary beyond claiming that the T ownship did not identify with enough precision the secondary effects it sought to targe t

. But the T ownship did identify the concerns underlying its zoning ordinance

–– “surrounding property values, crime, noise, and harmonious development with other uses.” J

. A

. 157. As the Supreme Court has stressed in this context, a municipality “must b e allowed a reasonable opportunity to experiment with solutions to admittedly serious problems

. ” Renton , 475 U.S. at 52 (quoting Young v. Am. Mini Theatres, Inc. , 427 U.S. 50, 71 (1976) (plurality opinion)). Sutton’s facial challenge fails.
B. Sutton next argue s that, even if the o rdinance ’s restrictions on adult entertainment facilities are facially valid, they were unconstitutional as applied. In other words, he contend s that the Board denied his application not for content

- neutral reasons but9

speci fically “because of its content.” Police Dep’t of Chi. v. Mosley , 408 U.S. 92, 96 (1972). This argument fails. The record demonstrates that the Board rejected the application not out of animus to nude dancing but for legitimate, content

- neutral reasons. For starters, t he Board found that, under the o rdinance, only “stores” could be part of a shopping center, and the cabaret was not a store. 4 Perhaps most significant ly , the Board found that Sutton failed to establish that the cabaret would meet the grou nd

- water discharge and sewage

- disposal requirements applicable to all special uses. Sutton claim s that he established compliance with the ground

- water discharge requirements by explaining that the shopping center ’s compliance had been approved when it was originally built and that the cabaret would not require more water than other prior uses there . But Sutton admitted to the Board that he had not “conducted any water supply studies or engineering to indicate the current status of [the shopping center ’s] water and whether that’s going to be changed” with the cabaret. J

. A

. 937. And Sutton even admitted that he did not “have any studies or testimony to provide to the Board” showing
th at his proposed use met the o rdinance’s sewage

- disposal requirements. J

. A

. 938. There is thus no genuine dispute that Sutton failed to meet the ordinance’s ground

- water discharge and sewage

- disposal requirements . That was a legitimate, content

- neutral reason for the Board to reject his application.

4 Sutton argue s that this misread s the o rdinance, pointing out that the shopping center at issue also contains a bank and a church, neither of which seemingly are a “store.” But the Board noted that it had “never been asked to decide the appropriateness of any of the uses within the Shopping Center prior to this application

. ” J

. A

. 959.10

F inally, the Board found that the cabaret, by featuring lewd activity and permitting patrons to bring in alcohol , would violate Pennsylvania law. Sutton claim s that he would have changed the cabaret’s alcohol policy if necessary to comply with state law, b ut, ultimately, the application for the cabaret did include a provision permitting patrons to “bring their own beverages

. ” J.A. 1199. The Board cannot be faulted for evaluating the application on its stated terms. 5
In short, t he Board articulated multipl e permissible reasons for denying the application. The record, therefore, does not support Sutton’s as - applied challenge.
C. Lastly, Sutton claim s that the Township violated s ubstantive due process when it rejected his application

. We have long explained that “executive action violates substantive due process only when it shocks the conscience

. ” United Artists Theatre Circuit, Inc. v. Twp. of Warrington , 316 F.3d 392, 399

– 400 (3d Cir. 2003). While “the meaning of this standard vari es depending on the factual context,” id. , it is “designed to avoid converting federal courts into super zoning tribunals,” Eichenlaub v. Twp. of Indiana , 385 F.3d 274, 285 (3d Cir. 2004). Thus , “only the most egregious official conduct” violates substant ive due
process. Cty. of Sacramento v. Lewis , 523 U.S. 833, 846 (1998).

5 Sutton also argue s that “the co ntent of any adult materials or speech cannot constitute a nuisance,” citing Ranck v. Bonal Enter s . , Inc. , 359 A.2d 748 ( Pa. 1976 )

. Sutton Br. 31. But the Board did not find the cabaret to be a nuisance because of its obscenity ; rather, it found that it would be a nuisance simply because of its illegality. And Sutton do es not challenge here the underlying constitutionality of the Pennsylvania statute.11

Sutton argue s that the conduct here meets that standard. He contend s that the Township Solicitor, who wrote the final decision denying his application, did so without the approval o f the Zoning Board members and purely out of animus toward nude dancing

. But Sutton assume s unconstitutional conduct that is unsubstantiated by the record, even when viewed in the light most favorable to him

. As discussed, the Board ultimately offered se veral permissible reasons for denying his application that had nothing to do with the morality or expressive nature of nude dancing. We cannot conclude that such conduct “shocks the conscience.” United Artists , 316 F.3d at 400.
IV. For the foregoing r easons , we will affirm the judgment of the District Court.