U.S. Sound & Service, Inc., and James Restaino, Appellants
On Appeal From the United States District Court For the District of New Jersey (D.C. Civil ActionNo. 96-cv-02353)
BEFORE: STAPLETON, GREENBERG and COWEN, Circuit Judges
(Opinion Filed October 10, 1997)
U.S. Sound & Service, Inc. ("U.S. Sound") asserts that the Township of Brick, New Jersey ("the Township"), and its Planning Board ("the Board") violated U.S. Sound's First Amendment right to free expression by imposing unjustified conditions on its right to operate a video store in the Township. The district court denied U.S. Sound's motion for a partial summary judgment as to liability, denied its alternative application for a preliminary injunction, and granted summary judgment for the Township and the Board. We will reverse and remand for further proceedings.
In November 1995, U.S. Sound contracted to purchase property in Brick, New Jersey, which it planned to use as a video store offering "sales and rentals with video preview booths, books, magazines and sundries." App. at 273. The property is located within 600 feet of a structure that, since September 1996, has been used to house all of the kindergarten and most of the first grade classes in Brick, and it is also within 1500 feet of the Brick High School. An Ocean Ice Palace, which is frequented by young customers, stands across the street, and not far away is the only branch of the Ocean County Public Library in Brick.
U.S. Sound intended to convert the property from its then current use as a hair salon; therefore, it had to apply to the Planning Board for a "change of use." Its application included a simple floor plan showing a 1000-square-foot single room with display racks and several booths for previewing movies available for rent. It described its projected video collection as including "rated and unrated titles in a broad range of categories such as drama, comedy, action, classical, documentary, musical, sports, nature and adult-theme videos in order to attract as broad a patronage as possible." App. at 88.
The Board approved the change of use subject to the following conditions, among others that are not challenged before us:
There shall be no private viewing of movies within an enclosed area anywhere upon the premises or within the structure. Movies may, however, be previewed without barriers, obstructions or privacy provided the movies are not rated R, X, ...