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Borough of Sayreville v. 35 Club, L.L.C.

416 N.J. Super. 315, 3 A.3d 1268 (App. Div. 2010)

ADULT BUSINESSES — One of the factors a court uses when evaluating a challenge to the statutory buffer requirements regarding the location of sexually oriented businesses within a municipality is whether there are suitable alternative sites, but, in doing so, a court may not consider a site outside of New Jersey.

A company operated a sexually oriented business within a municipality. The business featured live nude dancing. The municipality sued to enjoin the company from operating within the municipality. It claimed that the location and nature of the company’s activities violated N.J.S.A. 2C:34-7 as well as the municipality’s licensing requirements.

After a six-week trial, the lower court found in the municipality’s favor and granted a permanent injunction barring the company from operating its business at that location. In order to ensure compliance, the lower court ordered the injunction to be recorded in the office of land records as a deed restriction in perpetuity. The company appealed. The Appellate Division reversed and remanded.

In doing so, the Court noted that pursuant to N.J.S.A. 2C:34-7(a), a sexually oriented business is prohibited from operating within 1,000 feet of a public park or a residential zone. It also found that the company’s current location was in violation of the statute. However, even if the company’s location violated the requirement as to the location of sexually oriented businesses, the Court was required to determine if the statutory restrictions, as applied to the company, were constitutionally permitted. The constitutionality of the statute depends on whether it allows “adequate alternative channels of communications within the relevant market area.” In doing so, a municipality has the burden of demonstrating that, without using its present location, the company had adequate alternatives within the relevant marketing area.

The municipality’s expert opined that the relevant market area consisted of all or a portion of 65 municipalities in five counties in New Jersey and portions of Staten Island, New York, all within a twenty minute drive of the company’s location. The municipality then identified a number of alternative sites within that market area and concluded that 1.06% of the available acreage within the market area was available to the company. The company’s expert disagreed, opining that the market area was within only an eighteen-mile radius of its location and that, after considering buffer requirements, there were only three alternative available locations for the company within its market area.

The Court noted that when evaluating a challenge to the buffer requirements of N.J.S.A. 2C:34-7, a court must determine: (a) the relevant market area; (b) the availability of alternative sites within that market area; and (c) whether the available sites, in relation to the size and market area, provide enough suitable alternative sites for expression to pass constitutional scrutiny. The Court was disturbed by the experts’ failure to address regional marketing patterns or available public transportation when determining if there were ample alternative sites. The Court was also critical of the municipality’s expert’s inclusion of Staten Island, New York as an available site. The Court noted that the buffer restrictions imposed by the statute are a byproduct of the public policy espoused by the elected representatives of the State of New Jersey. State legislators are answerable to the citizens if the citizens disagree with the statute and desire to amend it or repeal it. Similarly, the municipality’s elected officials are answerable to the residents who can also express their collective opinions about certain zoning restrictions within the municipality. However, neither the residents of the municipality nor the residents of New Jersey have an electoral voice in the affairs of Staten Island, New York. Therefore, the Court found that the statute, which abridges constitutionally protected free speech, cannot be sustained when the alternative sites are located outside the electoral reach of the people affected by that abridgement.

Finally, the Court rejected the lower court’s requirement that the injunction be recorded in the office of land records as a deed restriction. It held that such a remedy was not authorized by the buffer statute or by the municipal zoning code. Further, the lower court failed to offer any other statutory authority or case law that would allow the recording of the injunction as a permanent deed restriction.

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