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Township of Saddle Brook v. A.B. Family Center, Inc.

156 N.J. 587, 722 A.2d 530 (1999)

ZONING; ADULT BUSINESSES—The constitutionality of a state statute restricting the location of adult oriented businesses within a municipality, as applied to a particular business site, is dependent on the municipality being able to show that a reasonable alternative site is available, even if outside of the municipality.

A business sought permission from a municipality to operate a store specializing in the sale and rental of adult videos and related merchandise. The municipality denied a certificate of occupancy, asserting that the applicant: (1) was required to obtain site plan approval; (2) had not demonstrated compliance with the parking provisions of the zoning ordinance; and (3) proposed the unlawful use of non conforming signs. After an unsuccessful appeal through the municipality’s board of adjustment, the business opened in reliance on a 1986 certificate of occupancy for the premises, and continued operations in defiance of a cease and desist order issued by the zoning officer. The municipality instituted action to enjoin the violation of its ordinances and then filed an amended complaint alleging that the business also violated N.J.S. 2C:34-7, which prohibits the operation of a sexually oriented business within 1,000 feet of any place of public place of worship, any school or school bus stop, any municipal or county playground or place of public recreation, or any area zoned for residential use unless expressly permitted by municipal ordinance. The lower court heard testimony from the municipality’s zoning officer that a sexually oriented business could not operate at any site within the entire municipality without violating the distance restrictions of the state statute. The lower court concluded that the statute was unconstitutional as applied to the municipality on the ground “[t]hat there is no area within the town that does not fall within [the statute’s] 1,000 foot barrier.” The Appellate Division rejected that conclusion, noting because the law is a state statute, its validity should not be determined solely on the basis of municipal boundaries, and acknowledging that “locations ... outside the Township’s boundaries can satisfy the constitutional requirement that the restriction on speech leave open [alternative] channels of communication.” The Appellate Division imposed the burden of proving the availability of such sites on the municipality.

The New Jersey Supreme Court found this to be a question of first impression, and then agreed with the Appellate Division’s conclusion that the constitutionality of a state statute restricting available locations of sexually oriented businesses need not be determined solely by reference to the boundaries of the municipality in which the business challenging the restricting the restriction seeks to locate. The Court examined relevant decisional law, including a number of cases decided by the U.S. Supreme Court and opined that the Law Division’s responsibilities on remand would be formidable. In its view, although the state statute is not a statewide zoning regulation for sexually oriented businesses, it does constitute a statewide restriction on their location. The statute expressly authorizes municipalities to override the statutory limitation by a local zoning ordinance more permissive than the state statute. Accordingly, the Court held that the statute’s constitutionality, as applied, will depend on whether its application to the municipality allows adequate alternative channels of communication within the relevant marketing area. On remand, the lower court will be required preliminarily to determine the marketing area relevant to the business site in order to ascertain the adequacy of alternative available sites. The lower court’s determination of reasonable proximity must be informed by evidence of regional marketing patterns, availability of public transportation, access by automobile, geographical distribution of customers at comparable sexually oriented businesses, and other factors. The lower court’s ascertainment of the availability of alternative sites necessarily will depend in part on the provisions of the zoning ordinances enacted by neighboring municipalities that permit, prohibit, restrict or affect the feasibility of establishing sexually oriented businesses. After determining the relevant market and the relative availability of sites within that market, the lower court must then determine whether the extent of the availability of alternative channels of communication, in relation to the size of the relevant market, is adequate to sustain the constitutionality of the state statute as applied to this business’ site. Lastly, the Supreme Court concurred with the Appellate Division’s conclusion that the municipality should bear the burden of proving the adequacy of available alternative avenues of communications within the relevant marketing area.


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