Filed: Feb. 13, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1846 _ TERRY SUTTON, d/b/a Cinkaj Brogue Limited Partnership; BRENDA SUTTON, d/b/a Cinkaj Brogue Limited Partnership; CHRIS CINKAJ, d/b/a Cinkaj Brogue Limited Partnership v. CHANCEFORD TOWNSHIP; TIMOTHY J. BUPP, Solicitor, Chanceford Township in his individual and official capacities; JOHN SHANBARGER, JR., Chair, Chanceford Township Planning Commission, in his individual and official capacities; BRUCE MILLER, Vice Ch
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1846 _ TERRY SUTTON, d/b/a Cinkaj Brogue Limited Partnership; BRENDA SUTTON, d/b/a Cinkaj Brogue Limited Partnership; CHRIS CINKAJ, d/b/a Cinkaj Brogue Limited Partnership v. CHANCEFORD TOWNSHIP; TIMOTHY J. BUPP, Solicitor, Chanceford Township in his individual and official capacities; JOHN SHANBARGER, JR., Chair, Chanceford Township Planning Commission, in his individual and official capacities; BRUCE MILLER, Vice Cha..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1846
_____________
TERRY SUTTON, d/b/a Cinkaj Brogue Limited Partnership; BRENDA SUTTON, d/b/a
Cinkaj Brogue Limited Partnership; CHRIS CINKAJ, d/b/a Cinkaj Brogue Limited
Partnership
v.
CHANCEFORD TOWNSHIP; TIMOTHY J. BUPP, Solicitor,
Chanceford Township in his individual and official capacities;
JOHN SHANBARGER, JR., Chair, Chanceford Township
Planning Commission, in his individual and official capacities;
BRUCE MILLER, Vice Chair, Chanceford Township Planning
Commission, in his individual and official capacities;
MARK A. BUPP, Vice Chair, Chanceford Township Planning Commission,
in his individual and official capacities; RALPH DAUGHERTY,
Member, Chanceford Township Planning Commission,
in his individual and official capacities; THOMAS GIZZI, SR.,
Member, Chanceford Township Planning Commission,
in his individual and official capacities; ROBERT LYTER, Member,
Chanceford Township Planning Commission,
in his individual and official capacities; BRENDA GOHN,
Secretary, Chanceford Township Planning Commission,
in her individual and official capacities; BRADLEY K. SMITH, Chair,
Chanceford Township Board of Supervisors, in his individual
and official capacities; KENT E. HEFFNER, Vice Chair,
Chanceford Township Board of Supervisors, in his individual and
official capacities; CLIFTON M. BALDWIN, Member, Chanceford Township
Board of Supervisors, in his individual and official capacities;
DAVID HOPKINS, Chair, Zoning Hearing Board Chanceford Township, PA,
in his individual and official capacities; MARK FREY, Member,
Zoning Hearing Board Chanceford Township, PA, in his individual
and official capacities; DAVID J. HIVELY, Member, Zoning Hearing Board
Chanceford Township, PA, in his individual and official capacities;
JEFFREY L. KOONS, Zoning Officer, Chanceford Township, PA,
in his individual and official capacities; GRANT A. ANDERSON,
Township Engineer, in his individual and official capacities
TERRY SUTTON; BRENDA SUTTON; CHRIS CINKAJ,
Appellants
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1-14-cv-01584)
District Judge: Honorable Martin C. Carlson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 22, 2019
Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ, Chief District
Judge+.
(Filed February 13, 2019)
___________
OPINION*
____________
CHAGARES, Circuit Judge.
Appellant Terry Sutton1 sought to operate an adult entertainment club inside a
shopping center he owned in Chanceford Township, Pennsylvania. But the Township’s
Zoning Hearing Board rejected his application for a permit. So Sutton sued the
+
The Honorable Juan Sánchez, Chief United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
Terry Sutton’s wife, Brenda, and his business partner, Chris Cinkaj, are also
appellants. Because they all advance the same claims, we refer only to Terry for ease of
reference.
2
Township and many of its officials, arguing, among other things, that the Township’s
special requirements for adult entertainment facilities violate the First Amendment, both
facially and as applied, and that the Board’s rejection of his application also violated his
right to substantive due process. The District Court granted summary judgment in favor
of the Township, and, for the following reasons, we will affirm.
I.
Because we write solely for the parties, we recite only the facts essential to our
disposition.
Chanceford Township, like many municipalities, has a zoning ordinance to
regulate development. The ordinance divides the Township into five zones, and within
each one, some uses are generally permitted, some are prohibited, and others are
permitted by “special exception.” Joint Appendix (“J.A.”) 165–66.2 A use permitted by
special exception requires a permit from the Zoning Hearing Board. Before granting any
application for a special exception, the Board must make several findings, including that
the applicant has established that the proposed use will comply with certain sewage-
disposal and ground-water recharge requirements.
One use permitted in the Township’s General Commercial Zone as a special
exception is an “adult oriented facility.” J.A. 165. As such, it must be approved by the
Zoning Hearing Board, no different from any other use permitted by special exception.
2
We note that two consecutive pages in the Joint Appendix are labeled as J.A.
165. When citing this page, we refer to the second page labeled J.A. 165, which contains
a table of permitted and special exception uses.
3
But the ordinance also subjects adult oriented facilities, specifically, to several additional
requirements:
that there be no outward display of any materials or signage related to the
adult entertainment offered inside;
that the facility be windowless or not viewable from the outside;
that it contain a notice on every entrance explaining that people under
eighteen are not permitted and that others may be offended by the
entertainment;
that it have a certain number of parking spaces;
that it be at least 1,000 feet “from any public or parochial school offering
education below the college level, church, library, child day care, or nursery
school, including church related nursery school”;
that, if that 1,000-foot distance “cannot practically be achieved,” the facility
still must be more than 500 feet from such places, and there must be a six-
foot tall “security fence” around the facility; and
that the facility have trees or shrubs around its perimeter “to form an
effective visual barrier between [it] and any residence, school, recreation
facility, or other non-commercial or non-industrial use.”
J.A. 206–07.
In March 2013, Terry Sutton applied for a special exception to use part of his
property as an adult cabaret featuring nude female dancers. The Zoning Hearing Board
4
held a hearing and then, in a written decision, denied the application. It first explained
that, under the zoning ordinance, a shopping center can consist only of “stores,” which
the cabaret was not. J.A. 957. The Board further explained that, regardless, the
application failed to demonstrate that the proposed use would meet the sewage-disposal
and ground-water recharge requirements required for any special exception under the
zoning ordinance. And finally, the Board explained that the cabaret, because it would
feature nude dancing while also permitting patrons to bring in their own alcohol, would
violate state law, which prohibits lewd entertainment in a “bottle club.” 18 Pa. Cons.
Stat. § 7329. Because the proposed use would be unlawful, the Board found that it would
constitute a “nuisance” prohibited under Section 301.1 of the ordinance. J.A. 961.
In response, Sutton filed a complaint against Chanceford Township3 in federal
court, asserting claims under both federal and Pennsylvania law. Most relevant to this
appeal, he claimed that the Township’s ordinance violated the First Amendment, both
facially and as applied, and that the Township, in denying his application, violated his
Fourteenth Amendment right to substantive due process. The District Court granted
summary judgment in favor of the Township, and Sutton timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291, and the District Court had
jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. Our review of a grant of summary
judgment is de novo. Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014).
3
The lawsuit also named various Chanceford officials as defendants.
5
Summary judgment is appropriate when, viewing the evidence in the light most favorable
to the non-movant, “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ.
P. 56(a)).
III.
Sutton presents three arguments: that the Township’s ordinance’s restrictions on
adult entertainment facilities facially violate the First Amendment; that those restrictions
were unconstitutional as applied here; and that the Board, in rejecting his application,
violated his right to substantive due process. None have merit.
A.
We start with the facial challenge. The Supreme Court has held that “zoning
ordinances designed to combat the undesirable secondary effects of [adult] businesses are
to be reviewed under the standards applicable to ‘content-neutral’ time, place, and
manner regulations.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986).
That is, such zoning ordinances are valid when “they are narrowly tailored to serve a
significant or substantial government interest” and also “leave open ample alternative
channels of communication.” Phillips v. Borough of Keyport,
107 F.3d 164, 172 (3d Cir.
1997) (en banc) (quoting Mitchell v. Comm’n on Adult Entm’t Establishments,
10 F.3d
123, 130 (3d Cir. 1993)). In applying the “secondary effects” doctrine, we have required
municipalities to “identify the justifying secondary effects with some particularity,” and
“offer some record support for the existence of those effects and for the [o]rdinance’s
amelioration thereof.”
Id. at 175. But a municipality need not “conduct new studies or
6
produce evidence independent of that already generated by other cities, so long as
whatever evidence [it] relies upon is reasonably believed to be relevant to the problem
that [it] addresses.” Renton, 475 U.S. at 51–52.
Sutton argues that the Township failed to prove that the purpose of its restrictions
on adult entertainment facilities was to combat their secondary effects. But even viewing
the record in the light most favorable to Sutton, we conclude otherwise –– there is no
genuine dispute that the Township acted to address the secondary effects of adult
entertainment facilities. To be sure, as Sutton point outs, the evidence of the Township’s
consideration of secondary effects is thin. But the evidence is there. The Township has
produced sworn affidavits from multiple officials involved in passing the adult
entertainment restrictions demonstrating that the “principal concerns” were with “orderly
growth, traffic, health and safety, and crime.” J.A. 156; see also J.A. 516–17; 1210. And
the Township has “offer[ed] some record support for the existence of those effects and
for the [o]rdinance’s amelioration thereof.” Phillips, 107 F.3d at 175. The Township’s
then-Chairman of the Board stated, under penalty of perjury, “that studies had been
performed in other municipalities demonstrating a direct relationship between the
presence of [adult] facilities and increases of crime and decreases in surrounding property
values.” J.A. 157. Moreover, the Township’s then-Solicitor testified that he reviewed
various court decisions, as well as legislative findings, discussing the negative secondary
effects of adult entertainment businesses. See J.A. 1051–53; see also 68 Pa. Cons. Stat. §
5501(a)(1) (“There are within this Commonwealth a number of adult-oriented
establishments which require special regulation by law and supervision by public safety
7
agencies in order to protect and preserve the health, safety and welfare of patrons of these
establishments, as well as the health, safety and welfare of the citizens of this
Commonwealth.”). And we have held that municipalities are entitled to rely on the
legislative findings of their home state. See Ben Rich Trading, Inc. v. City of Vineland,
126 F.3d 155, 160–62 (3d Cir. 1997). Sutton does not contest these findings. In sum, the
record demonstrates that the ordinance “was passed to control the socially undesirable
effects incidental to the operation of adult entertainment establishments.”
Mitchell,
10 F.3d at 137.
The ordinance, accordingly, passes constitutional muster so long as it is “narrowly
tailored” and “leave[s] open adequate alternative channels of communication.” Id. at
139. That is the case here. Indeed, Sutton offers no argument to the contrary beyond
claiming that the Township did not identify with enough precision the secondary effects
it sought to target. But the Township did identify the concerns underlying its zoning
ordinance –– “surrounding property values, crime, noise, and harmonious development
with other uses.” J.A. 157. As the Supreme Court has stressed in this context, a
municipality “must be allowed a reasonable opportunity to experiment with solutions to
admittedly serious problems.”
Renton, 475 U.S. at 52 (quoting Young v. Am. Mini
Theatres, Inc.,
427 U.S. 50, 71 (1976) (plurality opinion)). Sutton’s facial challenge fails.
B.
Sutton next argues that, even if the ordinance’s restrictions on adult entertainment
facilities are facially valid, they were unconstitutional as applied. In other words, he
contends that the Board denied his application not for content-neutral reasons but
8
specifically “because of its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 96
(1972).
This argument fails. The record demonstrates that the Board rejected the
application not out of animus to nude dancing but for legitimate, content-neutral reasons.
For starters, the Board found that, under the ordinance, only “stores” could be part of a
shopping center, and the cabaret was not a store.4 Perhaps most significantly, the Board
found that Sutton failed to establish that the cabaret would meet the ground-water
discharge and sewage-disposal requirements applicable to all special uses. Sutton claims
that he established compliance with the ground-water discharge requirements by
explaining that the shopping center’s compliance had been approved when it was
originally built and that the cabaret would not require more water than other prior uses
there. But Sutton admitted to the Board that he had not “conducted any water supply
studies or engineering to indicate the current status of [the shopping center’s] water and
whether that’s going to be changed” with the cabaret. J.A. 937. And Sutton even
admitted that he did not “have any studies or testimony to provide to the Board” showing
that his proposed use met the ordinance’s sewage-disposal requirements. J.A. 938.
There is thus no genuine dispute that Sutton failed to meet the ordinance’s ground-water
discharge and sewage-disposal requirements. That was a legitimate, content-neutral
reason for the Board to reject his application.
4
Sutton argues that this misreads the ordinance, pointing out that the shopping
center at issue also contains a bank and a church, neither of which seemingly are a
“store.” But the Board noted that it had “never been asked to decide the appropriateness
of any of the uses within the Shopping Center prior to this application.” J.A. 959.
9
Finally, the Board found that the cabaret, by featuring lewd activity and permitting
patrons to bring in alcohol, would violate Pennsylvania law. Sutton claims that he would
have changed the cabaret’s alcohol policy if necessary to comply with state law, but,
ultimately, the application for the cabaret did include a provision permitting patrons to
“bring their own beverages.” J.A. 1199. The Board cannot be faulted for evaluating the
application on its stated terms.5
In short, the Board articulated multiple permissible reasons for denying the
application. The record, therefore, does not support Sutton’s as-applied challenge.
C.
Lastly, Sutton claims that the Township violated substantive due process when it
rejected his application.
We have long explained that “executive action violates substantive due process
only when it shocks the conscience.” United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 399–400 (3d Cir. 2003). While “the meaning of this standard
varies depending on the factual context,”
id., it is “designed to avoid converting federal
courts into super zoning tribunals,” Eichenlaub v. Twp. of Indiana,
385 F.3d 274, 285 (3d
Cir. 2004). Thus, “only the most egregious official conduct” violates substantive due
process. Cty. of Sacramento v. Lewis,
523 U.S. 833, 846 (1998).
5
Sutton also argues that “the content of any adult materials or speech cannot
constitute a nuisance,” citing Ranck v. Bonal Enters., Inc., 359 A.2d 748 (Pa. 1976).
Sutton Br. 31. But the Board did not find the cabaret to be a nuisance because of its
obscenity; rather, it found that it would be a nuisance simply because of its illegality.
And Sutton does not challenge here the underlying constitutionality of the Pennsylvania
statute.
10
Sutton argues that the conduct here meets that standard. He contends that the
Township Solicitor, who wrote the final decision denying his application, did so without
the approval of the Zoning Board members and purely out of animus toward nude
dancing. But Sutton assumes unconstitutional conduct that is unsubstantiated by the
record, even when viewed in the light most favorable to him. As discussed, the Board
ultimately offered several permissible reasons for denying his application that had
nothing to do with the morality or expressive nature of nude dancing. We cannot
conclude that such conduct “shocks the conscience.” United Artists, 316 F.3d at 400.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
11
