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(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4172-09T1

THE FALLS GROUP, LLC t/a THE FUNPLEX,

Plaintiff-Respondent,

v.

TOWNSHIP OF MOUNT LAUREL,

Defendant-Appellant. _______________________________ January 10, 2011 Argued: October 20, 2010 - Decided:

Before Judges Axelrad, R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4250-09.

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Christopher J. Norman argued the cause for appellant.

Stephen Hankin argued the cause for respondent (Hankin, Sandman & Palladino, attorneys; Mr. Hankin, on the brief).

PER CURIAM

In this declaratory judgment and prerogative writs action, defendant Township of Mt. Laurel (Township) appeals from a March 9, 2010 judgment of the Law Division compelling the Township to adopt an ordinance declaring plaintiff's property a "recognized amusement park" under the Amusement Games Licensing Law, N.J.S.A. 5:8-l00 to -130 (the Act) for licensure purposes, and an April l9, 2010 order denying reconsideration. We affirm as modified. The facts and procedure of this case are not in dispute. On November 3, 1959, Township voters approved by referendum the public question authorizing the Act to become operative in the Township and thereby approving of the municipality's authority to grant licenses thereunder. See N.J.S.A. 5:8-116 (requiring approval by public referendum for the Act "authorizing the conducting, operating and playing of certain amusement games, whether of chance or skill, or both, where the prizes or awards to be given shall be of merchandise only" to become operative in the municipality); N.J.S.A. 5:8-115 (stating the action of the voters of the municipality "shall be deemed to be an approval of the authority to the municipality to grant licenses" under the Act, and such approval cannot be repealed except by means of another referendum). The Act provides for a two-step, joint municipal and state procedure for licensing. See N.J.A.C. l3:3-2.1. Licensees must first file a state-prescribed application with the municipal clerk but municipal approval of a license does not become effective unless and until a state license certificate is issued by the Legalized Games of Chance Control Commission (Commission). Ibid.; N.J.S.A. l3:3-1.1. Plaintiff owns and operates a twenty-five acre indoor and outdoor amusement facility on Route 38 known as "The Funplex." The Funplex is located in the Township's "I-Industrial" zone, which permits "recreation[al] structures and uses" under Section l54-56(C)(11) of the zoning code. Outdoors there is a food concession, a miniature golf course, a sixteen-tee driving range, batting cages, a swimming pool, and eight amusement rides plus a "pad" for a replacement ride on a site that contained a ferris wheel. Indoors there is an arcade
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with about fifty or more video and other mechanical redemption games of chance which are not dependent upon result, a food concession, a sixteen-lane bowling alley, and six amusement rides. All of the Funplex amusement rides are licensed by the New Jersey Department of Community Affairs under the Carnival Amusement Rides Act (CARSA), N.J.S.A. 5:3-31 to -59. CARSA requires State licensure for amusement rides located in an "amusement area or park." N.J.S.A. 5:3-32a. In 2003, plaintiff filed a complaint against the Township in Superior Court seeking a declaratory judgment that CARSA preempted the Township's site plan jurisdiction in ride safety regulation. At that time, the Township's zoning code did not forbid outdoor amusement parks. On June 20, 2003, Judge Sweeney granted judgment in favor of plaintiff, reversing the Township's refusal to permit plaintiff's operation of a ferris wheel. In his findings, the judge found the Funplex facility was an amusement park under CARSA.
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On December l5, 2003, the Township passed Ordinance 2003-20 prohibiting outdoor amusement facilities anywhere within its borders. See Township Zoning Code

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