Skip to main content

308 Highway 35, Inc. v. The Borough of Eatontown

03-2007, 2004 WL 232767 (U.S. Ct. App. 3rd Cir. 2004)

ZONING; ADULT USES—A complaint is not entitled to preliminary restrain enforcement of an ordinance where it is not clear whether the ordinance bars adult entertainment or if there are alternate avenues available for operating a sexually oriented business.

A corporation sued a municipality pursuant to 42 U.S.C. Section 1983, complaining that N.J.S.A. 2C:34-6 and -7 and the municipality’s land use ordinance violated the First Amendment of the United States Constitution in that each prohibited live entertainment in the form of nude and semi-nude dancers in all zoning districts. The corporation sought a preliminary injunction, which was denied by the District Court. The Court of Appeal’s review was limited to determining whether there had been an abuse of discretion, a clear error of law, or a clear mistake on the facts by the lower court. In determining whether to grant preliminary injunctive relief, a court must be convinced of the following four elements: the likelihood that the moving party will succeed on the merits; the extent to which the moving party will suffer irreparable harm without injunctive relief; the extent to which the nonmoving party will suffer irreparable harm if the injunctive is issued; and the public interest. The lower court denied the preliminary injunction because the corporation had failed to show that it would succeed on the merits or that it would suffer irreparable harm.

The Appellate Division held that the lower court did not abuse its discretion because the corporation had not demonstrated a likelihood of success on the merits. Furthermore, it thought that it remained unclear whether the municipality actually prohibited live entertainment or whether there were alternative avenues available for the operation of a sexually oriented business. Therefore, it believed that the corporation failed to demonstrate that, absent a preliminary injunction, it would suffer irreparable injury or that the injunction would be in the public interest.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •