Daily Development for
Friday, May 22, 1998
By: Ira Meislik
Daily Developments normally are edited and prepared by Prof. Patrick A. Randolph, who is in China until late July. Ira Meislik will file periodic developments reports in Professor Randolph's absence.
ZONING AND PLANNING; CONSTITUTIONAL LAW; USE RESTRICTIONS; ADULT BUSINESSES: A statutorily adopted municipal ordinance that has the practical effect of barring an adult bookstore from the municipality is not unconstitutional per se because the possibility exists that such a business can locate in a nearby municipality and thus have "accessible availability."
Township of Saddle Brook v. A.B. Family Center, Inc., 307 N.J.Super. 16, 704 A.2d 81 (App. Div. 1998).
Relying on a certificate of occupancy issued nine years earlier, an adult video store opened for business and later defied the Township of Saddle Brook's cease and desist order. The Township sought to restrain the store from operating, claiming the building did not comply with various parking and sign requirements of its zoning laws. At trial, a Township officer testified that certificates of occupancy had been issued to prior tenants of the building and numerous other businesses located elsewhere, none of which complied with the Township's parking laws. The trial judge found that the Township violated the First Amendment by engaging in selective enforcement of the parking and sign ordinances. The Appellate Division agreed that the Township selectively enforced the parking and sign laws to prevent the store's operation, finding that violations of those laws was of no concern to the Township but for the store owner's desire to sell adult videos and books.
One month after the initial cease and desist order was issued, the Township adopted a "Peace and Good Order Ordinance." It mirrors a state statute forbidding a sexually oriented business within 1,000 feet of a school, place of worship, playground, or residential area. The store owner argued that the Ordinance and the state statute were unconstitutional per se because they were content-based regulations of speech that failed to provide a reasonable alternative means of communication. In testimony, the Township officer stated that he could not identify any location within the Township where an adult video store could operate without violating the 1,000 foot requirement. The trial judge concluded that the Ordinance violated the First Amendment by implementing a content-based ban of all adult establishments within the Township limits. Also deemed unconstitutional was the state statute, because it unreasonably limited the store owner's avenues of communication since there was no area within the Township that did not fall within the 1,000 foot barrier.
On appeal, a brief from the New Jersey Attorney General argued that the 1,000 foot buffer zone was not constrained by municipal boundaries, and therefore neighboring communities outside the Township could satisfy the constitutional requirement of providing an alternative means of communication. The Appellate Court accepted this argument and found both the state statute and the municipal ordinance to be constitutional. Citing the United States Supreme Court, the Appellate Division found that government has a legitimate right to restrict, at least to some degree, the sale of adult oriented materials. It determined that the legislature intended the state statute to permit the 1,000 foot buffer zones to apply beyond a single municipality, creating multi-town zones in order to preserve the statute's constitutionality. The Court held that the statute was constitutional because there was "accessible availability" within reasonable proximity to Saddle Brook, even though there was no evidence such nearby alternative communications actually existed. The Court failed to consider what would happen if the neighboring communities enacted similar ordinances, and did not resolve why the particular store in question was not permitted to operate despite the Ordinance, since the certificate of occupancy was issued before the adoption of the non-retroactive Ordinance.
The New Jersey Supreme Court has granted certiorari.
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