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Do-Wop Corp. v. City of Rahway

June 29, 2001

DO-WOP CORP., T/A RAZZLE DAZZLE FANTASY RUNWAY, PLAINTIFF-RESPONDENT,
v.
CITY OF RAHWAY, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Coleman, J.

ON CERTIFICATION TO Appellate Division, Superior Court

Chief Justice Poritz PRESIDING

OPINION BY Justice Coleman

Argued March 27, 2001

On certification to the Superior Court, Appellate Division.

This case involves licensing provisions of the Code of the City of Rahway. Pursuant to that Code, individuals and commercial establishments that operate adult-oriented businesses are required to obtain annual licenses. The critical issue raised in this appeal is whether a statute that changed plaintiff's sexually-oriented business from a licensed conforming use to a nonconforming use has been "grandfathered" by virtue of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-68. The trial court and the Appellate Division concluded that plaintiff is protected by the MLUL. We disagree and reverse.

I.

Plaintiff, Do-Wop Corporation, trading as Razzle Dazzle Fantasy Runway (Do-Wop), and its predecessor, commenced operating an adult entertainment establishment on Route 1 in Rahway in March 1991 after obtaining the required licenses. Do-Wop became the operator in May 1993. Do-Wop's business consists of "dancing meant for adult entertainment, sales of adult books and videos, and [the] operation of [an] adult amusement center."

When plaintiff's predecessor opened the business in 1991, the Rahway Code did not impose on it minimum distance requirements with respect to other adult entertainment centers, schools, places of worship, or residential neighborhoods. That changed before Do-Wop's 1993 license expired on December 31, 1993.

On August 23, 1993, Rahway passed Ordinances A-44-93 and A- 45-93. Ordinance A-44-93 amended Chapter 72-6, Article II of the Code of the City of Rahway to add:

D) No application shall be approved if the property where the proposed activity is for the purposes of exhibiting nudity for entertainment or amusement purposes, establishing an Adult Entertainment Center, or establishing an Adult-only Books/Video Store, and is located within 1000 feet of any such adult entertainment or amusement use or within 1000 feet of any residential zone, church, designated public park, playground, and/or recreation facility, public institution or other public place and/or public school, and/or school bus stop. Such activity shall only be permitted in the I-1 Industrial Zone.

E) Amortization of nonconforming uses. As to those establishments which are operating as of the date of passage of this Ordinance, they shall become unlawful two years following the passage of the Ordinance. [Rahway, N.J., Code ch. 72-6, art. II (1993).]

Similarly, Ordinance A-45-93 amended Chapter 73-3(g) of the Code of the City of Rahway to read:

G) No application shall be approved if the property where the proposed activity is for the purposes of an Adult Amusement Center, games or devices and is located within 1000 feet of any other such Adult Entertainment or Amusement Center or within 1000 feet of any residential zone, church, designated public park, playground and/or recreation facility, public institution or other public place and/or public school, and/or school bus stop. Such activity shall only be permitted in the I-1 Industrial Zone. [Rahway, N.J., Code ch. 73-3 (1993).]

Do-Wop's applications for renewal of its licenses for the years 1994 and 1995 were approved based on the two-year "amortization" provision contained in Ordinance A-44-93. By early 1994, two bills were introduced in the State Legislature that addressed many of the same concerns that had been addressed in Rahway's ordinances, including the need to reduce the number of sexually-oriented businesses. G.A. 252, 206th Leg., 2d Sess. (1995); G.A. 842, 206th Leg., 2d Sess. (1995). Both bills were enacted into law and became effective on September 15, 1995. L. 1995, c. 230, ยง 3 (codified at ...


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