On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Long, Stern and Kimmelman.
The opinion of the court was delivered by: Stern, J.A.D.
Argued September 16, 1997
The Township of Saddle Brook ("Township") appeals from a judgment
(1) declaring its Peace and Good Order Ordinance "per se unconstitutional because it is a content-based regulation of speech";
(2) declaring N.J.S.A. 2C:34-7 "unconstitutional as applied by Saddle Brook based upon the fact that [its] application ... does not provide a reasonable alternative means of communication;" and (3) issuing "a Certificate of Occupancy for the operation" of defendant A.B. Family Center's store. Plaintiff Township had sought "an order restraining the defendant A.B. Family Center from operating a store specializing in adult video and related merchandise" because it was operating in violation of (1) several provisions of the Township's zoning ordinances, (2) the Township's Peace and Good Order Ordinance, and (3) N.J.S.A. 2C:34-7.
Following an evidentiary hearing, the trial Judge found "that the town has engaged in selective enforcement of its ordinances" regarding "site plan approval, a certificate of occupancy, sufficient parking spaces, and the failure to obtain proper sign permits," and could not enforce those provisions. He further concluded that the Township's Peace and Good Order Ordinance "plainly violates the First Amendment of the United States Constitution" because it implements a content-based ban of all adult establishments within the city limits. The trial Judge also held that N.J.S.A. 2C:34-7, as applied, violates the First Amendment because it "unreasonably limit[s] the defendant's avenues of communication on the grounds that there is no area within the town that does not fall within N.J.S.A. 2C:34-'s 1,000 foot barrier." With regard to N.J.S.A. 2C:34-7, the Judge stated:
"The town's Construction and Zoning Officer testified that there is no area within the borough that is beyond the statute's 1,000-foot buffer. The town did not argue that a comparable area in a neighboring borough permits an adult-oriented business. Furthermore, the town did not address why other businesses are permitted to sell adult-oriented merchandise in the borough. Accordingly, this court must hold that provision of the statute unconstitutional as against Saddle Brook on the grounds that the statute does not provide a reasonable alternative means of communication."
The Township has appealed from the resulting judgment, and we granted the State's motion to intervene on the issue related to the constitutionality of N.J.S.A. 2C:34-7. We now reverse the holding that N.J.S.A. 2C:34-7 is unconstitutional as applied and remand for further proceedings in light of our Conclusion that N.J.S.A. 2C:34-7 renders municipal boundaries irrelevant where the buffer cannot be satisfied within a particular municipality and that the statute avoids the constitutional infirmity of not providing alternative means of communication within a single municipality.
There is no dispute that the premises involved consist of a two-story, 10,000 square foot building facing Route 46 in Saddle Brook. The retail selling space consists of 500 square feet on the first floor. Certificates of occupancy for retail establishments were issued by the Township to former tenants of the premises. The premises are within 1,000 feet of several residential areas, a playground and the Franklin School. The Township's zoning officer and construction code official ("zoning officer" or "officer"), who testified at the hearing, could identify no location within the Township where an adult video store could operate in excess of 1,000 feet of a school, church, bus stop or residential area.
In April 1995, a certificate of occupancy was issued to Route 46 Video Inc. to operate a "Retail Video Store." Shortly thereafter a revised certificate of occupancy was issued authorizing the "[s]ales and rentals of Video Tapes, Adult Videos, Video Viewing Equipment, Periodicals, Newspapers, Apparel and novelty items." On May 16, 1995, the owner of Route 46 Video submitted a sketch of a proposed sign, which indicated that the business would offer "triple X rated adult books, magazines, ... C.D. Roms, lingerie and leather." The zoning officer then advised its owner that "he could not conduct such a business on the premises." The next day the zoning officer, believing that the property owner he had known and trusted had misrepresented the truth, revoked the certificate of occupancy and the sign permits previously issued to Route 46 Video. On June 12, 1995, the zoning officer also sent letters to Route 46 Video and the landlord advising that the certificate of occupancy "was issued in error" and that they were in violation of ordinance provisions relating to site plan approval, parking and signage for which Planning Board or Board of Adjustment approval was required.
Shortly after the certificate of occupancy was revoked, the Township officials painted a sidewalk and created a "no parking" area around the building. According to the property owner, the mayor made various threats to the effect that if the store did not close the owner would "lose [his] building" and that "[the mayor] would see that aggressive law enforcement was done." Route 46 Video endeavored to obtain accelerated judicial relief, but was unsuccessful.
On September 7, 1995, A.B. Family Center, Inc. ("defendant") submitted an application for a certificate of occupancy for the same premises. The application described the proposed use as "retail video variety store for sale and rental of videos, ...