Plaintiff Harding Brass, LLC, operated an adult entertainment facility and juice bar in Hamilton Township. Harding Brass applied for a business license and repair permits in 2013; however, the zoning board originally denied the application. In 2014, after this lawsuit was filed, Harding Brass reapplied and received a favorable decision. Hamilton Township then moved for summary judgment.
The issue that faced the Board was whether Harding Brass’ use of the subject property as an adult entertainment establishment was a preexisting nonconforming use. The factual inquiry focused on whether, from July 1985 to the present, the property had been continuously used as an adult entertainment establishment, and Harding Brass had the burden of proof. Despite this, there was no tangible evidence presented confirming the facility was used for this purpose from 1985 to 2000. The application was therefore denied. However, on February 24, 2014, the Board held another hearing on the zoning application. At this new meeting Harding Brass presented testimony from 10 witnesses and an Atlantic City Press article in support of its application. As a result of this new evidence the permit was unanimously approved.
Here, the court found that the Board Members based their September 23, 2013 decision on a content-neutral reason: the insufficiency of Harding Brass’ evidence concerning continuous use—irrespective of what that “use” was. Thus, there was no evidence in the record supporting an inference that the Board or Township acted for a reason prohibited by the First Amendment when the Board originally denied Harding Brass’ application. Accordingly, Defendants’ Motion for Summary Judgment was granted.
Harding Brass, LLC v Zoning Board of Adjustment of the Township of Hamilton, 2015 WL 1835318 (DNJ 4/23/2015)
The opinion can be accessed at: http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2013cv06211/295543/18/