1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

"Phillips v. Keyport" (1997). 1997 Decisions. Paper 43.

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1

 

 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. 
2

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 
3

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 
4

"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 
5

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 
6

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. 
7

 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 
8

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 
9

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. 
10

 (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)). 
11

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. 
12

 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. 
13

("[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 wellbeing 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 
14

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 
15

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 
16

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 
17

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 adulttheme 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 
18

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. 
19

 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." 
20

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 
21

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 mustcarry. 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). 
22

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 
23

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 
24

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. 
25

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 
26

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 
27

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. 
28

 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. 
29

 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. 
30

 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 
31

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. 
32

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. 
33

 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 
34

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 
(..continued) 

35

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 
36

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. 
37

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. 
38

 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 
39

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
40

 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. 
41

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 
42

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 
43

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 
44

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. 
45

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, 
46

"[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. 
47

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. 
48

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. 
49

 

 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, 
50

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 
51

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 
52

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, 
53

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 
54

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. 
55

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, 
56

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 
57

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, 
58

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 
59

[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). 
60

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 preenactment 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 preenactment 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-
61

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). 
62

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 preenactment 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 preenactment 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 preenactment 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 
63

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. 
64

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.