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D. Russo, Inc., and Daniel Russo v. Theodore J. Romankow

December 2, 2011

D. RUSSO, INC., AND DANIEL RUSSO, PLAINTIFFS-APPELLANTS,
v.
THEODORE J. ROMANKOW, IN HIS OFFICIAL CAPACITY AS PROSECUTOR OF UNION COUNTY, TOWNSHIP OF UNION, DEFENDANTS-RESPONDENTS, AND KEVIN KALENDEK, DEFENDANT.
TOWNSHIP OF UNION, PLAINTIFF-RESPONDENT,
v.
D. RUSSO, INC. AND DANIEL RUSSO,
DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3740-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2010 - Decided September 17, 2010 Reargued November 2, 2011

Before Judges Fuentes, Graves and Harris.

This appeal involves the constitutionality, as applied, of N.J.S.A. 2C:34-7, which governs where sexually oriented businesses can be located. In our earlier opinion in this appeal we reversed the trial court's order upholding the constitutionality of the statute as applied to plaintiffs D. Russo, Inc. and Daniel Russo (collectively Russo), subject to a remand to the Law Division with instructions to render complete findings as required by Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587 (1999). D. Russo, Inc. v. Romankow, No. A-0633-08 (App. Div. Sept. 17, 2010) (slip op. at 19). Following the remand proceedings, the trial court upheld the statute, determining that "[Russo's] First Amendment rights are protected because there are, indeed, alternative communicative sites reasonably available to [Russo] within the relevant area." A final judgment was entered in favor of defendants Theodore Romankow (in his official capacity as the Union County Prosecutor) (Prosecutor), Township of Union (Township), and Kevin Kalendek dismissing the complaint with prejudice, and Russo renewed his appeal. After a review of the record and the findings of the trial court pursuant to our mandate, we affirm.

I.

Familiarity with our earlier opinion is assumed, and we need not repeat in detail either the procedural background or facts, except as necessary to illuminate the remand proceedings.

The fundamental question in this matter asked whether Russo's sexually oriented business -- known as Hott 22 -- located on Route 22 in the Township, may operate in the face of N.J.S.A. 2C:34-7. To do so, the statute must be declared unconstitutional as applied.

The four-day bench trial (conducted more than two years prior to the remand) presented the trial court with disparate expert opinions, all claiming allegiance to the Saddle Brook paradigm of (1) preliminarily determining the relevant market for this type of sexually oriented business and (2) then ascertaining the availability of alternative sites, if any, that exist within this market area to accommodate such sexually oriented business. See Saddle Brook, supra, 156 N.J. at 597.

The Prosecutor and the Township presented two experts, both professional planners, who expressed views that the relevant market area could be configured either (1) by a twenty-minute drive from Hott 22 or (2) by drawing a circle on a map with a radius of fourteen miles and placing Hott 22 at the center. Russo's expert, also a professional planner, demarcated the proposed market area based upon customer data collected by Hott 22's staff and concluded that it included sixteen municipalities in which an aggregate seventy percent of Hott 22's customer base resided.

The Township's expert (using the twenty-minute drive time market area) concluded that available alternative sites existed in four municipalities. The Prosecutor's expert (drawing the circular trade area) opined that eleven municipalities contained suitable alternative sites. Russo's expert was of the view that no available alternative sites existed in his configured market area.

The trial court considered the evidence and while recognizing that the experts' views on the relevant market area were similar, it did not explicitly demarcate the parameters of Hott 22's relevant market area. One of the reasons for our remand was to obtain from the trial court a clear declaration of the contours of the market area as mandated by Saddle Brook. D. Russo, Inc., supra, slip op. at 12.

On remand, in its written opinion dated January 19, 2011, the trial court reassessed the expert evidence and notwithstanding its view that its earlier expression of the market area was "self-explanatory," held that the fourteen-mile-radius design best described Hott 22's relevant market area. The trial judge primarily compared the approaches of Russo's and the Prosecutor's experts and found them "substantially identical," particularly since they both utilized Hott 22's customer survey data. Based upon its view that a twenty-minute drive in this State was too fraught with vagaries to accurately delimit a trade area, the court determined the fourteen-mile-radius approach "to be reasonable."

A second reason for our remand was to have the trial court -- after explicitly demarcating the market area -- apply the appropriate factors touching on a site's availability to establish the quantum of available sites for Hott 22's relocation. We concluded that the trial court had properly found that defendants met their burden of proof on the question of available alternative channels for Hott 22's communication. However, we were concerned that without first delineating the perimeter of the market area, such approach would contravene the Court's clear analytical mandate in Saddle Brook. We reiterate that pursuant to Saddle Brook, the concepts of market area and available suitable sites are legally and analytically separate.

D. Russo, Inc., supra, slip op. at 17.

On remand, the trial court applied the same methodology for determining alternative sites that we upheld in our earlier opinion. It found "that the nineteen sites identified by [the Prosecutor's expert] in Newark are reasonably available," and outlined seven ...


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