Posted by: Patricia Salkin | January 30, 2017

Fed. Dist. Court in PA Finds Adult Cabaret’s First Amendment Claims Survive Motion to Dismiss but Not Takings Claim

Plaintiffs Terry Sutton, Brenda Sutton, and Chris Cinkaj were co-owners of a business known as Cinkaj Brogue Limited Partnership. Plaintiffs approached the Chanceford Township Solicitor, Defendant Timothy Bupp, about their plan to use a vacant portion of their property to open an adult oriented bring-your-own-beverage cabaret featuring nude female dancers. After their application for a special exception to open nude cabaret on their property was denied by township zoning board, Plaintiffs brought action against township and township officials, alleging that the township’s limitation on the use of the property violated their free expression rights under the First Amendment and Pennsylvania Constitution, and amounted to a regulatory taking.

Defendants conceded that because nude dancing is expressive conduct, the zoning ordinance and its application to Plaintiffs were subject to some degree of scrutiny under the First Amendment. Here, however, the court could not find, even under the more permissive lens of intermediate scrutiny, that Defendants carried their burden on a motion to dismiss. As to Plaintiffs’ as-applied challenge to the application of the zoning ordinance, Defendants referred to the four reasons given by the Zoning Hearing Board in its written denial of Plaintiffs’ application for a Special Exception as evidence of Chanceford Township’s important or substantial government interests. However, Plaintiffs alleged with particularity that the reasons given in the written denial were merely pretextual, and that the denial was actually based on the board members’ moral objections to Plaintiffs’ proposed adult facility. The court found that the Defendants failed to argue that the zoning ordinance was accompanied by adequate procedural safeguards, so Plaintiffs’ claims of procedural infirmity survived as unchallenged. Because Plaintiffs alleged that the same set of facts in their Article 1, Section 7 of the Pennsylvania Constitution claims, the court found these claims also survived the motion to dismiss.

Defendants lastly argued in their motion to dismiss that the denial of Plaintiffs’ application did not deprive Plaintiffs of the use of their property, because the denial only prohibited a single use of the property. The record revealed that the shopping center had been used, and continued to be used, in a number of other commercial ways. The court found that the ordinance was generally applicable within the township. Accordingly, the court held that Plaintiffs failed to state a regulatory taking claim.

Sutton v. Chanceford Township, 186 F.Supp.3d 342 (MD PA 2016)

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