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State of New Jersey v. Russo

328 N.J. Super. 181, 745 A.2d 540 (App. Div. 2000)

ZONING; ADULT BUSINESSES—A requirement that an adult business erect a 50 foot perimeter buffer to shield the business from general view is lawful even if it sharply curtails the number of properties from which such businesses can operate.

The main activity of a business was the public presentation of nude female dancing. After the business began operating in a particular municipality, the municipality passed an ordinance prohibiting the operation of such a business within 1,000 feet of a variety of institutions and within 500 feet of a residential zone. It also required that every such business be surrounded by a 50 foot perimeter buffer consisting of plantings to the satisfaction of the municipality’s planning board. Of the 5,265 acres within the municipality, the commercially zoned land available for sexually oriented businesses was only 32.1 acres, or about one-half percent of the total land area. The 50 foot buffer requirement effectively eliminated a large portion of the available area for the businesses. With respect to the buffer zone requirement, the Court needed to distinguish between the offenses occurring before the passage of a State enabling statute and those occurring after its passage. With respect to the pre-statute offenses, the Court sought to determine whether the municipal ordinance was content-neutral and served a substantial public interest without unduly limiting the expressive freedoms granted by the First and Fourteenth Amendments of the United States Constitution. The burden of proving a substantial public interest is on the government. There are two aspects of this burden: “the state must prove that the law is ‘genuinely concerned with mitigating the adverse secondary effects of sexually oriented businesses’ ... and that it ‘directly advances the government’s asserted interest.’” The United States Supreme Court had previously “recognized that sexually oriented businesses can cause concrete and non-speculative side effects that government can target. These effects include promoting juvenile delinquency, contributing to an overall increase in crime, creating an environment that leads to the general deterioration of neighborhoods, and lowering property values.” Further, the New Jersey Supreme Court had previously held “that a municipality may reasonably restrict the outside of sexually oriented businesses ‘to buffer the visual and other impacts of those businesses on the neighborhood.’” The Court then held that “[g]iven those principles of law, the first aspect of the burden of proof is clearly satisfied by [that part of the ordinance] which merely provides buffer protection.” The Court then turned to determine whether the ordinance directly advanced the government’s asserted interests without unduly limiting expression of freedoms. It found, “as a matter of common sense [the] requirement directly advances several substantial public purposes: helping to preserve neighborhoods, preventing urban blight, and helping to distance such businesses from minors who might be in the area.” As to the business owner’s argument that the ordinance had the effect of too severely limiting the area in the municipality to such businesses, the Court was satisfied that some portion of the 32.1 acres could be used for those businesses without violating the buffer zone and that there were already four such businesses operating within the municipality.

The Court then addressed whether the state statute effectively preempted the local ordinance. In that regard, because the state statute “itself provides that municipalities may adopt buffer regulations exceeding those provided in the statute and since that is precisely what [the municipality’s ordinance did], there is no conflict” and therefore no justification for finding preemption.


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