CHERRY HILL, NJ – The township of Cherry Hill is getting a second chance to fight business owner Jim Restaino over the eventual location of the adult shop he plans to open in the suburban area east of Camden, NJ.According to the Camden-based Courier Post, Superior Court Judge Michael Kassel ruled Friday that Cherry Hill never actually agreed to a settlement with Restaino, who owns the Romantic Video & Boutique located in Mount Laurel, NJ and is seeking to expand his operation to Cherry Hill with a location off Route 70.
Judge Kassel ruled that Cherry Hill’s mayor and council had not approved the proposed settlement and the proposal that was under consideration was incomplete, lacking such details as the store’s name, signage, and interior layout.
Further, Judge Kassel decided that he would reinstate a lawsuit Restaino brought against the township, so that he may consider Cherry Hill’s most recently adopted ordinance regulating adult businesses, an ordinance which attorneys retained by the township believe is better suited to hold up better in court against constitutional challenges than previous iterations of the ordinance.
Cherry Hill’s new ordinance, effective last month, opened up four commercial and industrial areas of town – a total of approximately 15,500 acres – as potential locations for adult shops. Restaino had argued that the previous ordinance left almost nowhere for an adult business to operate in the town.
According to the Courier Post, Judge Kassel’s decision is based on the “time of decision rule,” which allows a municipality to amend an ordinance even while a legal matter is pending, and permits the court to consider the amended ordinance in an active case.
Warren Faulk, a First Amendment attorney hired by Cherry Hill to consult on the case, said the town “feels they’ve put together an ordinance that will pass constitutional muster,” according to the Courier Post.
Faulk added that there’s no reason for Restaino to sue the township now, as the new ordinance has opened up over 15,000 acres across four zones in Cherry Hill where Restaino can lease a space or build a business. Faulk also asserted that Restaino never had a “right” under state law to open in the location he desires; rather, Restaino has a right to open somewhere in Cherry Hill.
Dennis Oury, the attorney representing Restaino, isn’t persuaded that his client has no case in light of the new ordinance and Judge Kassel’s ruling.
“We’re not going away,” Oury said. “I look forward to litigating the matter again in court.”
“Never again will I settle with the township,” Oury added, “because I’ve learned you can’t take them at their word.”
According to the Courier Post, Oury tore into township officials during his appearance before Judge Kasell on Friday, asserting that the township had claimed it was negotiating in good faith, only to pull out of negotiations following public backlash in the fall of last year.
Oury furthered accused the township of engaging in settlement negotiations as a stall tactic, and a change of strategy after its previous expert fared poorly at a hearing in June.
“If I’m right in what I’m saying, it’s just not fair play,” said Oury. “I’m now, after three years of litigation, going to have to start all over again.”
Oury also observed that the township amended its adult business ordinance at least three times before in attempts to make the ordinance constitutional, and may well change the measure again before the case is through.
“How many times does a municipality get a bite at the apple before it gets egregious?” Oury said.
The next step in the case, according to the Courier Post, is a meeting scheduled for March 5th between attorneys for the township and Restaino’s attorney.
