NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2074-07T12074-07T1

TOWNSHIP OF CINNAMINSON and

EDWARD M. SCHAEFER, CONSTRUCTION

OFFICIAL FOR THE TOWNSHIP OF

CINNAMINSON,

Plaintiffs-Respondents,

v.

ROBERT BERTINO and DEANA BERTINO

and FHG, INC., t/a FANTASY GIFTS,

and RHETA F. CHESKIN and BRUCE S.

CHESKIN, Trustee,

Defendants-Appellants.

______________________________________

Argued October 7, 2008 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Docket No.

L-2014-07.

Dennis E. Block argued the cause for appellants.

John C. Gillespie argued the cause for respondents

(Parker McCay, attorneys; Mr. Gillespie, of counsel

and on the brief; Elena B. Zuares, on the brief).

The opinion of the court was delivered by

FUENTES, J.A.D.

The central issue in this appeal concerns the constitutionality of a zoning ordinance adopted by the Township of Cinnaminson that restricts the location where commercial establishments that sell adult videos and novelty items can operate. The trial court rejected defendants' constitutional challenge, finding that the ordinance constituted a reasonable time, place, and manner restriction, was content neutral, and served a substantial governmental interest while allowing reasonable alternative avenues of communication.

We reverse. We hold that the trial court misapplied the holding in Hamilton Amusement Center v. Verniero, 156 N.J. 254 (1998), when it relied on a generalized notion of "common sense" to find that the ordinance served a substantial governmental interest. Although evidence of a substantial governmental interest need not be based on empirical studies, such evidence must nevertheless provide a rational, objective basis from which to ascertain the existence of a substantial governmental interest underpinning the legislation.

We also hold that under Township of Saddle Brook v. A.B. Family Center, 156 N.J. 587 (1999), the Township of Cinnaminson has the burden of showing the availability of alternative suitable sites where the restricted business may operate. Here, in determining that the ordinance allowed reasonable alternative avenues of communication, the trial court failed to consider the impact the municipal restrictions have on defendants' ability to operate the business, in the context of the restrictions imposed by N.J.S.A. 2C:34-7(a).

I

Defendants Robert and Deana Bertino and GHG, Inc. own and operate three retail stores in New Jersey that sell merchandise they describe as "risqu