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Mack Paramus Co. v. Mayor and Council of Borough of Paramus

Decided: July 14, 1988.


Follender, J.s.c.


[228 NJSuper Page 238] In this prerogative writs action, Mack Paramus Co., Mack Paramus Affiliates, Mack Development Company and Mack Paramus Parkway Co., partnerships of the State of New Jersey, and Mack Development Corp. and Mack Office Park, Inc., corporations of the State of New Jersey ("Mack"), developers of commercial office buildings, challenge the validity of article 10*fn1 of the revised ordinances of the Borough of Paramus

(Borough of Paramus Ordinances Nos. 403, 448 and 562) which is a local governmental regulatory scheme commonly known as the sunday closing or blue law.

In Mack Paramus Co. v. The Mayor and Council of the Borough of Paramus, 103 N.J. 564 (1986), the Supreme Court of New Jersey held that the adoption by the Legislature of N.J.S.A. 2C:98-3 (as amended), L. 1979, c. 178, did not preempt, nullify or supercede local Sunday closing regulations and that the municipalities of the State, by virtue of, and pursuant to, the police power vested in them by N.J.S.A. 40:48-2 are empowered to adopt more stringent regulations than those enacted by the Legislature with respect to Sunday closings as provided in L. 1959, c. 119 (N.J.S.A. 2A:171-5.8 to -5.18).

Presented here for determination are the constitutional issues not dealt with nor decided by the Supreme Court in Mack Paramus, supra. Also, the matters involving the complaints

filed by Sterns, Inc. ("Sterns"), RKO Warner Theater Videos, Inc. and RKO Video Radio Shack, Inc. ("RKO") against the mayor and council of the Borough of Paramus, although not consolidated, were tried simultaneously for purposes of judicial economy.

Plaintiffs contend that the Paramus Sunday closing ordinance is unconstitutional, both facially and as applied, because it represents an unreasonable exercise of the police power and is discriminatory, resulting in a denial of equal protection and due process of law.

Additionally, plaintiff-Mack seeks a judgment declaring that the operation and maintenance of computers in commercial office buildings is a work of necessity and consequently exempt from the prohibition of the ordinance. Likewise, plaintiff-Sterns contends that, as a matter of necessity, it be permitted to provide two persons in three eight-hour shifts on Sundays to monitor and maintain its computers which are housed in its computer facility located on Route # 17. Finally, RKO asserts that it is engaged in a recreational activity, and thus, exempt from the ban of the ordinance.

Defendant, Borough of Paramus, responding to the claims of unconstitutionality presented by plaintiffs argues that those issues were finally determined in favor of defendant by the Supreme Court of New Jersey in Masters-Jersey, Inc. v. Paramus, 32 N.J. 296 (1960), and that nothing has occurred since then to alter, change or modify that decision.

Paramus also asserts that computer operations, in themselves, do not constitute a work of necessity entitling Mack's tenants or Sterns to an exemption from the ordinance; that RKO is involved in a retail business activity of selling or renting movie video tape cassettes, which has only an incidental relationship, at best, to recreation, and therefore, it does not qualify for an exemption from the ban of the ordinance.

The history of Sunday closing legislation in New Jersey generally, and in Paramus more specifically, has been fully

explicated in Mack Paramus, supra, 103 N.J. at 568-573 and needs no restatement here.

In 1957, when the initial Paramus closing ordinance was enacted, the borough was in a relatively bucolic state. Fred Galda, then Mayor of Paramus, testified at trial that Paramus was a rural-suburban community approximately 50% undeveloped and contained wide expanses of vacant land. At that time only two major arterial highways, State Highways # 4 and # 17 traversed the borough and to which were attracted certain retail businesses including a few of the discount store variety. However, looming large on the horizon was the immediate pending completion of two substantial shopping centers located on Route 4 East known as Bergen Mall and Garden State Plaza. The potential impact of these two concentrated business enterprises upon traffic conditions and the residents of the borough aroused great concern among the governing body and served as a driving force behind the enactment of the ordinance. Mayor Galda noted that, in 1957, there was little commercial office building development in the borough and that which did exist was insignificant.

Routes # 4 and # 17 served as principal east-west and north-south corridors, respectively, and were heavily burdened with traffic by those utilizing the George Washington Bridge and others seeking connection with central Bergen County, Passaic County, New York State and points beyond.

Fearing that the shopping centers would, as a by-product, bring to the community excessive traffic demands and a relentless, unyielding seven-day-a-week business-work requirement, the framers of the original Sunday closing ordinance sought to strike at the twin evils, perceived to exist, in order to:

1. achieve a reduction of traffic both on the highways with the attendant ripple effect on interior borough roadways caused by the intensive highway use; and

2. afford the residents of Paramus a day of rest and relaxation from the every day hustle and bustle in order to preserve

and uplift the public health, safety and welfare of the borough and its inhabitants.

The drafters of the original ordinance noted that at that time "the public policy of our State is against all worldly employment on Sundays, except works of charity and necessity." See N.J.S.A. 2A:171-1 et seq.; Auto Rite Supply Company v. Woodridge Township, 25 N.J. 188 (1957).

Against the backdrop depicting the Paramus of 1957, we now move to the Paramus of 1988. Vast changes in the demographic make-up of the community and land use have taken place. At the present time, Paramus is intersected, not only by Routes # 4 and # 17, but also by the Garden State Parkway, which in turn, intersects State Highway # 80, and which in turn, is a feeder for the Palisades Interstate Parkway. The arterial highway system serves and impacts upon areas inside and outside of Paramus both immediate and distant and, of course, upon the population that resides and works therein. The use of highway frontage along Routes # 4 and # 17 in Paramus has markedly intensified. There now exists at least seven concentrated shopping areas which may properly be termed as centers or malls. Substantial portions of property along the highways and roadways immediately adjacent to the Garden State Parkway are dedicated for commercial office building use by the zoning ordinance, resulting in the construction of a significant number of high-quality commercial office buildings. The balance of the highway frontage is now almost completely covered by retail-shop enterprises of an almost limitless variety. The most significant consequence of the highway business activity is continual traffic congestion with little or no let-up, except in the late-evening or early-morning hours. The remainder of the land in Paramus is devoted exclusively to residential housing of a one- or two-family type. There are no multiple-family housing developments. Paramus is strategically located in central Bergen County and occupies the largest land mass of the 70 municipalities in the county, and yet, it serves as home to only

26,000 residents out of a county-wide population of approximately 900,000.

The ordinance proclaims "No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within the borough on Sunday." Paramus, N.J., Rev.Ordinances, §§ 15-14; Paramus, N.J., Ordinances, § 1. That statement of intention was included in the original 1957 ordinance and has been restated in every amendatory ordinance on this subject to the present time. Despite that base-line concept, by virtue of other provisions contained in the original and amendatory ordinances and stated exemptions, a great deal of activity is permitted in Paramus on Sunday, so long as, the activity does not involve worldly employment not otherwise exempt.

Under the general heading of necessity, persons on Sunday may engage in: the operation of a hospital and related activities; the sale of drugs and related items; the sale of food; the passage of all types of motor vehicles, including trucks, on highways and interior roads; the operation of computers at police headquarters; the servicing and repair of public utilities including cable television.

Under the rubric of sports and amusements, the following activities are allowed on Sunday: the operation of movie theaters, pool halls, roller rinks, concert arenas, swimming pools, camps, bowling alleys, video arcades, health clubs, state playhouses, carnivals, zoo rides, other amusements and devises for which municipal licenses are required pursuant to the revised ordinances of Paramus, ch. 4, Arts. 1-4, §§ 4-1 to 4-48.

There are also numerous exemptions from the ban of the ordinance which allow the preparation and sale of drugs, meals and prepared foods, non-alcoholic and alcoholic beverages, perishable agricultural and horticultural products, the printing, publishing and sale of newspapers, magazines and periodicals, the delivery of milk, bread and baked goods, and a person may walk, ride or drive for recreation, rent conveyances for riding

and driving, sell gasoline and other petroleum products for motor vehicles, engage in any form of recreation, sport or amusement not otherwise unlawful, so long as other persons are not disturbed in their observance of Sunday, and sell and dispense directly or by vending machine, cigarettes and other tobacco products and exhibit or sell or lease residential real estate.

Chief of Police Joseph Delaney testified that in addition to all of the activities listed hereinabove, residents of Paramus may, on Sunday, perform any and all chores required for the care and maintenance and repair of their residences, so long as no person is employed to do the work. He further opined that a resident was free to pursue any lawful task within the privacy of his own home, including office work, because such work is not considered to be worldly employment, and consequently, is outside the scope of the ordinance.

All other work-related activities cease on Sunday, with particular emphasis on shopping centers, commercial office buildings, warehouses and retail sales establishments.

Mayor Joseph Cipolla and Chief Delaney concurred in the opinion that there is substantially less traffic on Sundays than on weekdays in the community because of the blue law, even though Paramus offers no resistance to traffic on the highways. From all of the foregoing, it is clear that presently Paramus is hardly an island of tranquility in a torrential sea, but the hectic conditions which exist on weekdays in the borough are lessened on Sunday directly as a result of enforcement of the Sunday closing ordinance, while at the same time, community residents, though active, are diverted from their daily workday routines.

Counsel for plaintiffs correctly assert that the public policy of the State enunciated in the 1951 revision of N.J.S.A. 2A:171-1 et seq., provided in pertinent part as follows:

No worldly employment of business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian

Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.

This language was included in the original Paramus closing law ordinance and carried forward even until today, Paramus, N.J., Rev.Ordinances, §§ 15-41, but was repealed by the State Legislature in the 1959 revision of the Sunday closing law, L. 1959, c. 119, N.J.S.A. 2A:171-5.1 et seq.; Two Guys From Harrison v. Furman, 32 N.J. 199 (1960). The c. 119 legislation serves only to prohibit the sale of five categories of goods enumerated therein and gives the voting public, residing in each county in the State, the option to determine by referendum whether the statute should apply. Thus, it is clear that the State policy in effect when the original Paramus closing ordinance was adopted has now been abandoned. However, Mack Paramus, supra, teaches that the source of municipal authority to enact restrictive Sunday legislation lies in the police power embodied in N.J.S.A. 40:48-2 and that municipalities may enact more stringent regulations than ordained by the State Legislature, provided municipal ordinances do not permit the performance of an act which is prohibited by State law.

Plaintiffs attack the validity of the ordinance on various grounds which are dealt with hereinafter seriatum.

Initially, plaintiff-Mack contends that the forced closing of its commercial office buildings on Sunday due to enforcement of the ordinance constitutes an unreasonable exercise of police power and a denial of due process of law.

Mack rests this constitutional attack primarily on the testimony of its expert, Peter Abeles, an expert in urban planning, who testified that, by means of extrapolation utilizing office buildings open on Sunday located in nearby Bergen County communities as his comparables, he was able to ascertain, with reasonable certainty, the extra traffic which would be generated in Paramus if commercial office buildings were permitted to open for their customary businesses on Sundays. Abeles stated that 283 cars could, under normal conditions, be

expected to be added to the traffic load in the borough for all office buildings located therein and that such a minimal addition to the traffic flow would be insignificant and would have no adverse impact upon Paramus. Assuming, arguendo, that the hypothesis advanced by Abeles is true, it fails to support Mack's position as a matter of law. The governing body of a municipality, when exercising its legitimate legislative function, is not required, in order to act lawfully and constitutionally, to measure with preciseness the degree or percentage which a particular activity may contribute to the adverse condition sought to be corrected. The evil targeted by the ordinance for treatment was excessive traffic upon the highways generated by workaday business activities and one of the goals which the Sunday closing ordinance sought to achieve was the elimination of that evil. Commercial office buildings admittedly generate more traffic, no matter how slight, and therefore, the inclusion of commercial office buildings as a prohibited Sunday activity cannot be deemed unreasonable, and hence, not a denial of due process of law.

Secondly, the scope of the ordinance is not overbroad so as to create a constitutional infirmity as argued by plaintiff-Mack. The ultimate objectives of the ordinance were to reduce traffic and to provide a climate so that Sunday would be a common day of rest and relaxation. The twin goals sought to be achieved afford substantial benefits to the general populace and as noted in Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199 (1960), are properly within the legislative contemplation in prohibiting Sunday activity. Vornado, Inc. v. Hyland, 77 N.J. 347, 355 (1978).

Thirdly, plaintiff-Mack asserts that the municipal legislative scheme impermissibly impacts on interstate commerce in violation of the Commerce Clause of the United States Constitution. I do not agree.

The basic issue here presented is whether the prohibition of the ordinance against computer usage on Sunday impermissibly

casts an intolerable burden upon interstate commerce. It cannot be denied that it is common for computers to be used as business tools across state and even international boundaries. But the mere fact that a restriction, by ordinance, imposes some burden upon industry and commerce is not sufficient, in and of itself, to require an adjudication of invalidity of the legislation, for it must impermissibly or unfairly burden interstate commerce to be deemed constitutionally deficient. In the exercise of its police power, a municipality may enact an ordinance which does "restrict personal freedom and property rights and sometimes imposes burdens upon or affects interstate commerce. In the latter connection where the burden is incidental and the restriction warranted by local needs, it is generally held that such local legislation is valid." Cunard S.S. Co. v. Lucci, 92 N.J. Super. 148, 155 (Ch.Div.1966), aff'd 94 N.J. Super. 440 (App.Div.1967); Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970). Moreover, the proofs presented fail to sustain a finding that, as a broad and general concept, computer usage on Sunday does in actuality constitute a burden on interstate commerce. As a matter of fact, the evidence compels an opposite conclusion. The witnesses who testified at trial on the subject of computer usage unanimously agreed that the computers, whether they be micro, mini or main frame are capable of receiving and storing information despite the restriction of the ordinance. In short, computers can and do operate, albeit in a limited form, on Sunday. Even if it is agreed that certain additional functions could, and would, be carried out through use of the computers on Sunday if unlimited access were permitted, the burden imposed by the ordinance falls well within the area of an incidental limitation, which is well warranted by the needs of the local community, and thus, the ordinance does not run afoul of the Commerce Clause of the United States Constitution, Art. I, sec. 8, cl. 3.

Next, plaintiff-Mack argues that the ordinance violates its First Amendment rights involving ...

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