Do-Wop Corp. v. City of Rahway

168 N.J. 191, 773 A.2d 706 (2001)

Opinion Date: June 29, 2001
Real Property Law
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ADULT BUSINESSES—The state law that bars locating adult businesses within 1,000 feet of a residential neighborhood overrides the grandfathering provisions under municipal law that would otherwise permit such businesses.

An adult oriented business operated in a municipality. Thereafter, the municipality enacted an ordinance that required adult oriented businesses to obtain annual licenses. The ordinance also imposed minimum requirements with respect to how close such businesses could be located from schools, places of worship and residential neighborhoods. For those businesses that were then non-conforming, the ordinance established a two-year grandfathering period in which the businesses would be classified as a permitted nonconforming use. Thereafter, the continued operation of a business in violation of the ordinance would be unlawful. Two years after the ordinance was passed, the owner of a particular adult business applied for its annual license. The license application was rejected because the business was no longer protected under the grandfathering provision. The owner filed suit seeking a declaratory judgment that the municipal ordinances violated the Municipal Land Use Law (MLUL), and sought an order compelling the municipality to process its license. Specifically, the owner argued that the MLUL allows nonconforming uses to continue indefinitely after a use has been made nonconforming by reason of an amendment to the zoning ordinance. The lower court and the Appellate Division both concluded that the ordinances were invalid because they constituted an improper exercise of zoning power that did not adhere to the requirements of the MLUL. The Supreme Court granted the municipality’s petition. The Court began its analysis by addressing whether a state statute (N.J.S. 2C:34-7) could be the basis for a proper denial of the owner’s license renewal application. If so, the Court concluded that the municipal ordinances are irrelevant. In 1995, legislature enacted that statute to prohibit, inter alia, the operation of a sexually oriented business within 1,000 feet of a residential neighborhood. The owner of the adult business contended that even if the statute were applicable, then it would nonetheless entitled to protection under the MLUL, which permits a use to continue indefinitely if it has been rendered nonconforming by a zoning amendment. The Court quickly recognized however that the MLUL protects only pre-existing nonconforming uses from changes made to municipal zoning ordinances, and not from changes made to state regulatory statutes. Therefore, because the adult oriented business was within 1,000 feet of a residential zoned area, it was prohibited under state law regardless of any underlying municipal zoning ordinances that addressed the same issue.

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