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Russo v. Planning Board of the Township of Union

A-4772-02T5 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; ORDINANCES—Although a land use board can’t use local zoning ordinances to enforce a local non-zoning ordinance but land use approval can be denied on the ground that if a proposed use couldn’t be operated because it violates a statute.

An owner sought site plan approval for his commercial property. The primary activity of his business was the public presentation of nude female dancing. Before the business began operation, the municipality adopted a sexually oriented business ordinance which became the model for a law added to the State’s criminal code. It prohibited the operation of a sexually oriented business within one thousand feet of various institutions and defined the kind of perimeter buffer required for such businesses.

The planning board denied the owner’s application on the basis of the local ordinance. The owner appealed, arguing at trial that the local ordinance was inoperative as to offenses occurring after the criminal statute was enacted because it was not adopted as an amendment to the zoning ordinance. The board then contended that it could not approve the ordinance because the owner’s business was in violation of the state criminal code. The lower court held that the criminal code was irrelevant and approved the plan.

On appeal, the Appellate Division first held that the local zoning ordinance was preempted by the criminal code, which meant that the planning board could not enforce or give relief from the zoning ordinance. However, the Court also held that it was irrelevant that the board failed to cite the state statute as the basis for its rejection. Appeals are taken from orders and judgments and not from opinions, oral decisions or reasons given for the ultimate conclusion. Here, the municipality relied on the state statute in the lower court. Therefore, it did not matter that the board failed to reference the state statute when it originally denied of the application.

Municipalities may not license acts that are prohibited by the penal laws of the state. The Legislature had declared that operating a sexually-oriented business within one thousand foot buffer zones violates the State’s public policy. Therefore, the Court reversed the decision of the lower court and remanded the case to decide whether or not the business was in violation of the state statute. If the business was in violation, it couldn’t operate anyway.

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