The opinion of the court was delivered by: Stein, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 307 N.J. Super. 16 (1998).
This appeal concerns the validity of governmental regulations that effectively bar an adult book store from operating in the Township of Saddle Brook (Township).
We affirm the judgment of the Appellate Division remanding the matter to the Law Division for further proceedings, substantially for the reasons set forth in that court's opinion. Saddle Brook v. A.B. Family Center, Inc., 307 N.J. Super. 16, 26-33 (App. Div. 1998). We add these comments to assist the Law Division in the conduct of the remand proceeding.
The opinion below thoroughly describes the factual background and procedural history, id. at 20-23, but a brief summary will provide a context for this Court's supplemental observations. In September 1995, Petitioner A.B. Family Center (Family Center) sought permission from the Township to operate a store specializing in the sale and rental of adult videos and related merchandise. The Township 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 nonconforming signs. After an unsuccessful appeal to the Board of Adjustment, Family Center opened its business 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 Township instituted this action to enjoin the violation of its ordinances.
In April 1996, the Township filed an amended complaint alleging that Family Center's business also violated N.J.S.A. 2C:34-7, which prohibits, unless expressly permitted by municipal ordinance, the operation of a sexually oriented business within 1000 feet of any place of public worship, any school or school bus stop, any municipal or county playground or place of public recreation, or any area zoned for residential use. The Law Division heard testimony from the Township's zoning officer that a sexually oriented business could not operate at any site within the entire township without violating the distance restrictions of the state statute.
In the Law Division, the Township also asserted that Family Center's business violated the provisions of the Township's Peace and Good Order ordinance, adopted in January 1996, which barred adult bookstores and video stores from operating at any location within the Township.
The Law Division determined that the Township had selectively enforced its site plan, parking, and sign ordinances to prevent Family Center from operating, and denied injunctive relief based on the alleged ordinance violations. That court also held that the Township's Peace and Good Order ordinance was unconstitutional because the Township failed to demonstrate that a complete prohibition of sexually oriented businesses served a compelling local interest or that such a prohibition constituted the least restrictive means for achieving the Township's objectives. The Appellate Division agreed with the Law Division's rulings on both those issues, 307 N.J. Super. at 23-26, and we denied the Township's cross-petition for certification seeking to contest those determinations. 153 N.J. 217 (1998).
The Law Division also concluded that N.J.S.A. 2C:34-7 was unconstitutional as applied to the Township "on the ground that there is no area within the town that does not fall within [the statute's] 1,000 foot barrier." 307 N.J. Super. at 27. The Appellate Division rejected that Conclusion, noting that because N.J.S.A. 2C:34-7 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." Ibid. Because that contention had not been pressed below, the Appellate Division remanded the matter to the Law Division to conduct an evidentiary hearing on the availability outside of the Township of sites for sexually oriented businesses within reasonable proximity to Family Center's site in Saddle Brook. The court imposed on the Township the burden of proving the availability of such sites. Id. at 32-33.
The question presented is one of first impression in this jurisdiction. We are in accord 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 restriction seeks to locate. The basic criteria for testing the constitutionality of analogous restrictions on sexually oriented businesses are set forth in the United States Supreme Court's opinion in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). In Renton, the Court sustained the constitutionality of an ordinance adopted by the City of Renton, Washington, prohibiting any adult motion picture theater from locating within 1000 feet of any residential zone or dwelling, church, or park, or within one mile of any school. The Court sustained the finding of the District Court that the ordinance's adoption was "unrelated to the suppression of free expression," and that the City's dominant purpose was to "prevent crime, protect the city's retail trade, maintain property values, and generally 'protec[t] and preserv[e] the quality of neighborhoods, commercial districts, and the quality of urban life.'" Id. at 48, 106 S. Ct. at 929, 89 L. Ed. 2d at 38. The Court described the Renton ordinance as consistent with the standard for characterizing speech regulations as "content-neutral," because it could be justified without regard to the content of the regulated speech. Initially determining that the Renton ordinance was "designed to serve a substantial governmental interest," the Court reaffirmed that "a city's 'interest in attempting to preserve the quality of urban life is one that must be accorded high respect.'" Id. at 50, 106 S. Ct. at 930, 89 L. Ed. 2d at 39 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S. Ct. 2440, 2453, 49 L. Ed. 2d 310, 327 (1976) (plurality opinion)). Concerning the issue relevant to this appeal -- whether the Renton ordinance allowed for reasonable alternative avenues of communication -- the Court noted that the ordinance left available approximately 520 acres, or more than five percent of the city's land area, for use as adult theater sites. Responding to the contention that "practically none" of the undeveloped land was currently being marketed for sale or lease, the Court noted "[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation." Id. at 54, 106 S. Ct. at 932, 89 L. Ed. 2d at 41-42.
In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981), the Supreme Court invalidated a municipal ordinance that prohibited all live entertainment, including nonobscene nude dancing, in the Borough's commercial zoning district. The Court determined that the ordinance could not be sustained as a reasonable "time, place, and manner" restriction on commercial speech. The Court noted that the Borough did not "identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the Borough," and that the ordinance failed to "leave open adequate alternative channels of communication." Id. at 74-76, 101 S. Ct. at 2186, 68 L. Ed. 2d at 684-85. In response to the Borough's contention that the ordinance was sustainable because the prohibited activities were permitted in neighboring municipalities, the Court stated:
"The Borough nevertheless contends that live entertainment in general and nude dancing in particular are amply available in close-by areas outside the limits of the Borough. Its position suggests the argument that if there were countywide zoning, it would be quite legal to allow live entertainment in only selected areas of the county and to exclude it from primarily residential communities, such as the Borough of Mount Ephraim. This may very well be true, but the Borough cannot avail itself of that argument in this case. There is no countywide zoning in Camden County, and Mount Ephraim is free under state law to impose its own zoning restrictions, within constitutional limits. Furthermore, there is no evidence in this record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. The courts below made no such findings; and at least in their absence, the ordinance excluding live entertainment from the commercial zone cannot constitutionally be applied to appellants so as to criminalize the activities for which they have been fined." [Ibid., 101 S. Ct. at 2186-87, 68 L. Ed. 2d at 685.]
Justice Blackmun, in his Concurring opinion, also addressed the question whether a municipality constitutionally may restrict protected speech if that form of ...