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Deg, LLC v. Township of Fairfield

November 16, 2012

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 Nos. L-6984-05 and L-8596-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2012

Before Judges Yannotti and Harris.

The Township of Fairfield (Township) appeals from an order entered by the Law Division on November 18, 2011, which permitted plaintiff DEG, LLC (DEG) to relocate its sexually-oriented business from the front to the rear of a building in the Township. We affirm.

In June 2005, DEG entered into an agreement with Wespres, Inc. (Wespres) to lease premises in the rear of a building located at 276 Route 46 East. DEG intended to operate a sexually-oriented business at that location. At the time, the Township's zoning ordinance prohibited sexually-oriented uses in any zone in the municipality.

DEG filed an application with the Township seeking a permit to operate the business in the leased premises as a nonconforming use. The Township denied the application. DEG thereupon filed an action in the Law Division, challenging the constitutionality of the Township's zoning ordinance and the application of N.J.S.A. 2C:34-7, which precludes persons from operating sexually-oriented businesses at certain locations.

The trial court determined that the Township's ordinance was unconstitutional on its face because it precluded all sexually-oriented businesses within the municipality. The court entered a temporary restraining order, which required the Township to issue to DEG the necessary permits so that it could operate its business in the leased premises.

Because factual issues remained with regard to DEG's as-applied challenge to N.J.S.A. 2C:34-7, the trial court allowed the parties an opportunity for discovery and scheduled a plenary hearing. While the matter was pending, the parties reached a settlement and agreed to the entry of a consent judgment, which permitted DEG to continue to operate its sexually-oriented business at its location and acknowledged that DEG was entitled to a certificate of nonconforming use pursuant to N.J.S.A. 40:55D-68.

The Township thereafter enacted new zoning ordinances which allowed sexually-oriented businesses to operate as conditional uses in a zone other than the zone where DEG was operating. The Township also refused to issue the certificate of nonconforming use to DEG on the ground that the operation at its location was not permitted by N.J.S.A. 2C:34-7.

Consequently, DEG filed a motion in the trial court to enforce the parties' consent judgment, and the Township filed a cross-motion seeking relief from the judgment pursuant to Rule 4:50. The trial court entered an order enforcing the consent judgment.

We reversed the trial court's order, noting that the Township's new ordinances represented a "significant change in law" which may warrant relief from the judgment pursuant to Rule 4:50-1(e), and we remanded the matter for a hearing to determine whether continued enforcement of the judgment would be equitable. DEG, LLC. v. Twp. of Fairfield, 398 N.J. Super. 59 73-75 (App. Div. 2008). The Supreme Court reversed our decision and reinstated the trial court's judgment. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 274 (2009). Among other things, the Court stated that the consent judgment, by its very terms, was not intended to rezone the area in which DEG was located but only to settle DEG's statutory claim and acknowledge its prior nonconforming status under the zoning laws so that, if DEG ever abandoned or otherwise terminated the use, the premises would lose its protection. [Id. at 273.]

On June 25, 2009, the Township issued a certificate of nonconforming use to DEG. About that time, DEG filed an application with the Township to relocate its business from the rear to the front of the building. The Township's zoning officer denied the application.

DEG thereafter filed a motion in aid of litigant's rights in the Law Division, claiming that the zoning officer's determination violated the consent judgment. The trial court determined that re-location of DEG's business from the rear to the front ...


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