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Deg, LLC v. Township of Fairfield and Zoning Officer

April 7, 2011

DEG, LLC, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF FAIRFIELD AND ZONING OFFICER, GLENN PLUMSTEAD, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6984-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2011

Before Judges Yannotti, Espinosa and Skillman.

In July 2005, plaintiff DEG entered into a five-year lease of the rear half of a 10,000 square-foot building located on Route 46 East in Fairfield with the intention of operating a sexually-oriented business on the premises. The building and the property on which it is located are triangular, with Route 46 along one side, Horseneck Road along the second side, and an interior parking lot along the third side. The rear half of the building leased by DEG faces onto the parking lot, where both the entrance and a display window are located. The other side of the premises leased by DEG borders on Horseneck Road. There is no window or customer entrance on that side of the building. At the time DEG leased the rear half of the building, the front half, which faces primarily on Route 46, was leased by another commercial establishment, which sold dinette sets.

The sexually-oriented business that DEG proposed to operate on its premises was prohibited both by a Fairfield zoning ordinance, which prohibited sexually-oriented businesses anywhere in the municipality, and by N.J.S.A. 2C:34-7, which prohibits any person from operating a sexually-oriented business within 1,000 feet of any place of public worship, school, school bus stop, child care center, public playground, place of public recreation, hospital, or residential zone, unless such a business is expressly permitted by municipal ordinance.

To secure authorization for its proposed business operation, DEG filed this action claiming that the Fairfield zoning ordinance totally prohibiting all sexually-oriented businesses in the municipality violated its First Amendment free speech rights and that, as applied to its proposed business, N.J.S.A. 2C:34-7 also violated the First Amendment. Shortly after the filing of this action, the trial court issued a letter opinion which concluded that the zoning ordinance prohibiting sexually-oriented businesses anywhere in Fairfield was "unconstitutional on its face." The court also concluded, based on the limited record presented on the application for temporary restraints that "DEG has established that there are no locations in [Fairfield] or the surrounding municipalities where DEG can open its adult business without violating N.J.S.A. 2C:34-7," and therefore, DEG had "established a reasonable likelihood of proving that N.J.S.A. 2C:34-7, if applied to this location, would violate the First Amendment." Accordingly, the court entered an order mandating issuance of the permits required for DEG to commence operations. Under the authority of this order, DEG commenced operation of its sexually-oriented business, called the Essex Adult Emporium, on January 27, 2006.

The trial court also ordered a plenary hearing regarding the constitutionality of N.J.S.A. 2C:34-7 as applied to DEG's adult business. Before the court conducted that plenary hearing, the parties entered into settlement discussions, which culminated in entry of a consent judgment under which Fairfield agreed to permit DEG to continue operation of a sexually-oriented business on its premises, subject to the conditions set forth in the consent judgment. Those conditions placed restrictions on the manner of operation of DEG's business and its appearance to members of the public outside the store. Regarding the business's manner of operation, the consent judgment provided:

Customers shall not be permitted entry to the facilities except through the front door, of which there shall only be one.

DEG shall not permit customers to view the videos or DVDs in any booth or other enclosed area or on any device visible to customers in the Store. DEG shall not permit the appearance by "stars" or other well-known personalities in the sexually-oriented business trade at the Store for promotional purposes. DEG shall not sell any merchandise at the Store that is not described in this Consent Judgment. As frequently as necessary but at least daily, DEG shall police the exterior areas of the Store, its parking area, and the immediate environs to pick up any litter from customers, delivery people or the Store so that no videos or DVD wrappers or covers, or other packing or advertising material of an adult or sexually oriented nature is permitted to exist or accumulate on or near the premises of the Store.

Regarding the outward appearance of the store, which is the focus of this appeal, the consent judgment provided:

DEG shall operate the Store utilizing the name "Essex Adult Emporium" with signage for the Store being as depicted in Exhibits A1-A3 to the within Judgment.

Window displays shall not exhibit adult or sexually oriented products, but may display bathing suits and lingerie. DEG shall configure the Store and displays so that adult products, videos and DVDs are not visible from outside the Store. No products, videos or DVDs shall be displayed or offered for sale outside the Store. DEG shall block all visibility to the interior of the store so that the interior, except for the window display, is not visible from the outside. In addition, window displays shall not be located on the Horseneck Road side of the buildings.

After the parties entered into this consent judgment, the Fairfield governing body adopted a new zoning ordinance that authorized sexually-oriented businesses as a conditional use in a zoning district that did not encompass the location of DEG's premises. The adoption of this ordinance triggered the ...


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