(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued March 27, 2001 -- Decided June 29, 2001
Coleman, J., writing for the Court.
Do-Wop Corporation (Do-Wop) and its predecessor began operating an adult entertainment business on
Route 1 in Rahway in March 1991 after obtaining required licenses. Do-Wop became the operator in May 1993.
The business consists of the sale of adult books and videos, the operation of an “adult amusement center,” and
dancing meant for adult entertainment.
When the business opened in 1991, Rahway's Municipal Code did not impose minimum distance
requirements in respect of other adult entertainment centers, schools, places of worship, or residential
neighborhoods. That changed before the expiration of Do-Wop's license on December 31, 1993, when, on August
23, 1993, Rahway passed Ordinances A-44-93 and A-45-93. Those ordinances set up buffer zones for adult
entertainment and amusement centers. Preexisting centers that became nonconforming uses were allowed to
continue in operation for up to two years. As a nonconforming use, Do-Wop's applications for renewal of its
licenses were approved for 1994 and 1995.
The State Legislature passed two bills that addressed many of the same concerns that led Rahway to adopt
Ordinances A-44-93 and A-45-93. The bills were signed into law and took effect September 15, 1995. As a part of
that statute, 1,000 foot buffer zones were required for adult entertainment centers unless a municipality passed a
zoning ordinance that permitted the use within one or more of the categories of buffer zones. N.J.S.A. 2C:34-7. It is
undisputed that Rahway has not adopted a zoning ordinance that would legalize sexually-oriented businesses within
the buffer zones.
Do-Wop filed a timely application for renewal of its licenses on December 27, 1995. On the same day,
Rahway informed Do-Wop that the renewal application had been rejected because the two-year period permitting
nonconforming uses had expired.
Do-Wop filed suit in January 1996, seeking an order declaring the 1993 ordinances to be in violation of the
Municipal Land Use Law (MLUL). Rahway filed a counterclaim seeking enforcement of the 1993 ordinances and
N.J.S.A. 2C:34-7. After a summary hearing in January 1998, the trial court found for Do-Wop and directed it to file
applications for 1996, 1997, and 1998. An order memorializing that decision was entered June 23, 1998.
Do-Wop failed to file the applications within a year of the January 1998 hearing. On March 26, 1999, the
trial court entered another order that directed Do-Wop to file proper applications that included identification of and
fingerprints for each stockholder. When Do-Wop failed to comply, the trial court issued an April 16, 1999, order
compelling Do-Wop to cease operating its business.
Rahway appealed the June 23, 1998, order and Do-Wop appealed the April 16, 1999, order. The Appellate
Division reversed the April 1999 order because the trial court had not addressed the constitutional challenges to the
fingerprint and identification requirements.
The Court granted Rahway's petition for certification.
HELD: The adoption of a State statute governing buffer zones for adult entertainment centers (N.J.S.A. 2C:34-7)
superseded Rahway's municipal ordinances on the same subject. Plaintiff is not entitled to the nonconforming use
protection of the Municipal Land Use Law.
1. Do-Wop argues that the Rahway ordinances are zoning ordinances and that they violate the MLUL. Rahway
contends that the 1995 statute (N.J.S.A. 2C:34-7) “trumped” the nonconforming use protection of the MLUL and
that the decisions of the courts below effectively grandfathered all preexisting sexually-oriented businesses. (pp. 7-
9)
2. The nonconforming use protection of the MLUL applies solely to actions taken by municipal zoning ordinance.
The adoption of the State law creating buffer zones clearly does not qualify as a municipal zoning ordinance. Its
prohibitions therefore apply to Do-Wop. (pp. 9-11)
3. The absence of any reference to the State statute in Rahway's written rejection of Do-Wop's license-renewal does
not affect the application of that statute to the business. (pp. 11-13)
4. The claim that the trial court's order requiring fingerprinting and identification of Do-Wop stockholders was
unconstitutional has become moot. (p. 13)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, VERNIERO, and ZAZZALI join in
JUSTICE COLEMAN's opinion. JUSTICE LaVECCHIA did not participate.
SUPREME COURT OF NEW JERSEY
A-
25 September Term 2000
DO-WOP CORP., t/a RAZZLE
DAZZLE FANTASY RUNWAY,
Plaintiff-Respondent,
v.
CITY OF RAHWAY,
Defendant-Appellant.
Argued March 27, 2001 -- Decided June 29, 2001
On certification to the Superior Court,
Appellate Division.
Louis N. Rainone argued the cause for
appellant (DeCotiis, Fitzpatrick, Gluck,
Hayden & Cole, attorneys; Mr. Rainone and
Anthony C. DeFelice, on the brief).
Stephen E. Milazzo argued the cause for
respondent (Milazzo, Fortunato, McCann &
Murray, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.,
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.
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, § 3 (codified at N.J.S.A. 2C:34-7 and amending
N.J.S.A. 2C:34-2). In language similar to the pertinent language
in the Rahway Code, N.J.S.A. 2C:34-7 provides in pertinent part:
Except as provided in a municipal zoning
ordinance adopted pursuant to [N.J.S.A.]
2C:34-2, no person shall operate a sexually
oriented business within 1,000 feet of any
existing sexually oriented business, or any
church, synagogue, temple or other place of
public worship, or any elementary or
secondary school or any school bus stop, or
any municipal or county playground or place
of public resort and recreation, or any
hospital or any child care center, or within
1,000 feet of any area zoned for residential
use.
[N.J.S.A. 2C:34-7a.]
The same legislation also amended N.J.S.A. 2C:34-2 to make clear
that the enactment of N.J.S.A. 2C:34-7 did not change the
existing obscenity law codified at N.J.S.A. 2C:34-2. L. 1995, c.
230, § 1.
The significance of N.J.S.A. 2C:34-7 is that it makes
unlawful the operation of sexually-oriented businesses within the
1,000 foot buffer zones unless the municipality in which such a
business is located has, through a zoning ordinance, permitted
that operation within one or more of the buffer zones. Here, it
is undisputed that Do-Wop's facility is located within one of the
buffer zones__within 1,000 feet of a residential zone. It is
also undisputed that Rahway has not enacted a zoning ordinance
pursuant to N.J.S.A. 2C:34-2b and N.J.S.A. 2C:34-7a legalizing
sexually-oriented businesses within the buffer zones.
Do-Wop hand-delivered a timely application to Rahway on
December 27, 1995 for renewal of its licenses for theaters,
indoor performances, and amusements for 1996. On the same day,
Rahway advised Do-Wop's attorney that the renewal application had
been rejected based on Chapter 72-6 of the Rahway Code because
the two-year amortization period for non-compliant uses had
expired. The letter further stated that continued operation
would be in violation of the Code. In response to that letter,
Do-Wop instituted the present litigation on January 17, 1996
seeking, among other things, a declaratory judgment that the 1993
ordinances violated the MLUL, and an order compelling Rahway to
process its license-renewal application. Rahway filed a
counterclaim, seeking to enforce the 1993 amendments to its Code
and N.J.S.A. 2C:34-7a.
The trial court conducted a summary proceeding on January
28, 1998 and concluded that the applicable provisions of the
Rahway Code were invalid because they constituted an improper
exercise of zoning power that did not adhere to the requirements
of the MLUL. The trial court directed Do-Wop to file its
applications for renewal of its licenses for 1996, 1997, and 1998
within ten days. The court's decision was memorialized by an
order dated June 23, 1998. After proper renewal applications
were not filed by Do-Wop within a year of the January 1998
proceeding, the June 1998 order was effectively amended by an
order dated March 26, 1999, which required Do-Wop to file
“properly executed applications in the form supplied by the
Rahway City clerk.” That order also required each stockholder to
be fully identified and fingerprinted. Again, Do-Wop was given
ten days to file proper renewal applications. When Do-Wop failed
to comply, the trial court issued an order on April 16, 1999
compelling Do-Wop to cease operating its business.
Rahway appealed the June 23, 1998 order and Do-Wop appealed
the April 16, 1999 order. Both appeals were consolidated for
disposition. The thrust of Do-Wop's appeal was a challenge to
the validity of the fingerprinting and disclosure requirements of
the renewal applications. In an unpublished opinion, the
Appellate Division affirmed the June 23, 1998 order substantially
for the reasons expressed by the trial court. The Appellate
Division reversed the April 16, 1999 order that enjoined Do-Wop
from operating its business because the trial court had not
addressed the constitutional challenge to the fingerprinting and
disclosure requirements. Those issues were remanded to the Law
Division to be litigated. We granted Rahway's petition for
certification,
165 N.J. 604 (2000), and now reverse.
The issues in this appeal have been framed by Do-Wop's assertions that the Rahway Ordinances, A-44-93 and A-45-93, are zoning ordinances because they pertain to the location of sexually-oriented commercial establishments. According to Do- Wop, the ordinances converted its business from a permitted use in the zone to a nonconforming use for two years and an illegal use thereafter. It maintains that those ordinances violated the MLUL in two respects. First, Do-Wop asserts that the ordinances violate the MLUL's nonconforming use provision, N.J.S.A. 40:55D- 68, which allows nonconforming uses to continue indefinitely after a use has been made nonconforming because of an amendment to the zoning ordinance. Second, Do-Wop contends that even if the ordinances are valid, they were promulgated in violation of the procedural requirements of the MLUL. The trial court and the Appellate Division found Do-Wop's arguments to be persuasive and ruled in its favor.
Rahway, on the other hand, takes an entirely different approach. Rahway's primary contention is that Do-Wop's operation became an illegal establishment after September 15, 1995, when N.J.S.A. 2C:34-7 became effective, because that statute trumps the nonconforming use protection found in the MLUL, N.J.S.A. 40:55D-68. According to Rahway, N.J.S.A. 2C:34-7 prohibits Do- Wop's operation because it is located within the 1,000 foot buffer zones and because no Rahway zoning ordinance authorizes such businesses within the buffer zones. Thus, Rahway contends that it properly denied Do-Wop's 1996 license-renewal application in December 1995, and that neither N.J.S.A. 2C:34-7 nor Rahway's ordinances are subject to the MLUL.
Rahway also contends that under the Appellate Division and Law Division holdings, all preexisting sexually-oriented businesses will be grandfathered under N.J.S.A. 2C:34-7, despite the fact that the statute does not provide for that treatment. Rahway submits that the net effect of such a holding will be to exempt all sexually-oriented businesses in operation prior to September 15, 1995 when N.J.S.A. 2C:34-7 became effective.
The critical issue is whether N.J.S.A. 2C:34-7 can be the basis for a proper denial of Do-Wop's 1996 license-renewal application. If so, then the 1993 ordinances become irrelevant to the analysis for the reasons discussed below. The plain language of N.J.S.A. 2C:34-7 provides that “no person shall operate a sexually oriented business . . . within 1,000 feet of any area zoned for residential use.” That statute is a declaration of state policy that is binding on all municipalities. It is undisputed that Do-Wop's facility is within 1,000 feet of a residential zone.
Do-Wop contends that because the Legislature made its facility non-compliant, it is entitled to protection under the MLUL, N.J.S.A. 40:55D-68. That statute permits a use to continue indefinitely after it has been rendered nonconforming by a zoning amendment. The statute more specifically provides that “[a]ny nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied.” N.J.S.A. 40:55D-68. Contrary to Do- Wop's assertion, that statute does not conflict with N.J.S.A. 2C:34-7. The plain language of N.J.S.A. 40:55D-68 protects only preexisting nonconforming uses from changes made in municipal zoning ordinances. It does not protect those uses from changes made in state regulatory statutes. Thus, we agree with the commentators who noted:
[T]he protection afforded to pre-existing nonconforming uses by 40:55D-68 only protects such a use from prohibition pursuant to the zoning ordinance. The fact that a use is deemed to be permitted as a pre-existing nonconforming use pursuant to 40:55D-68 does not give that use immunity from the requirements imposed by other state laws and regulations that preempt the MLUL.
[William M. Cox & Donald M. Ross, New Jersey Zoning and Land Use Administration § 11-1.2, at 236 (2000).]
See also Mt. Bethel Humus Co. v. New Jersey Dep't of Envtl.
Protection,
273 N.J. Super. 421, 427-28 (App. Div. 1994) (holding
that preexisting nonconforming use must conform with requirements
of subsequently-enacted Freshwater Wetlands Protection Act);
Uncle v. New Jersey Pinelands Comm'n,
275 N.J. Super. 82, 90
(App. Div. 1994) (holding that Pinelands Commission regulation
adopted pursuant to Pinelands Protection Act (Act) trumped MLUL's
preexisting nonconforming use protection, because Act expressly
provided that its implementing regulations superseded MLUL when
there was a conflict). As we observed two years ago, “N.J.S.A.
2C:34-7 is not a statewide zoning regulation for sexually
oriented businesses, [but] it does constitute a statewide
restriction on their location.” Township of Saddle Brook v. A.B.
Family Ctr., Inc.,
156 N.J. 587, 596 (1999). That is so because
N.J.S.A. 2C:34-2 “expressly authorizes municipalities, at their
option, to override the statutory limitation by [enacting] a
local zoning ordinance more permissive than the state statute.
Absent such an election by affected municipalities the statutory
limitations will govern.” Ibid. Because the preexisting use
provision protects nonconforming uses only from subsequent
municipal zoning ordinances, and not subsequent statutory
changes, the prohibition in N.J.S.A. 2C:34-7 applies to Do-Wop's
facility.
We recognize that Rahway's written rejection of Do-Wop's
license-renewal application did not refer to N.J.S.A. 2C:34-7 as
a basis for its rejection. But it is well-settled that appeals
are taken from orders and judgments and not from opinions, oral
decisions, informal written decisions, or reasons given for the
ultimate conclusion. Heffner v. Jacobson,
100 N.J. 550, 553
(1985); Isko v. Planning Bd.,
51 N.J. 162, 175 (1968), abrogated
on other grounds, Commercial Realty & Resources Corp. v. First
Atl. Properties Co.,
122 N.J. 546 (1991); Ellison v. Evergreen
Cemetery,
266 N.J. Super. 74, 78 (App. Div. 1993). It is clear
from the record that Rahway has relied on N.J.S.A. 2C:34-7 in
both of the courts below.
“Generally, a municipal corporation may not license acts
that are prohibited by the penal laws of the state.” 9 Beth A.
Buday & Julie Rozwadowski, The Law of Municipal Corporations §
26.23.20 (Eugene McQuillin ed., 3d ed. 1995). At least one
reported New Jersey decision has followed that general rule. In
State v. Betti,
21 N.J. Misc. 345 (Cty. Dist. Ct. 1943), rev'd on
other grounds,
23 N.J. Misc. 169 (Quarter Sessions 1945), the
court concluded that “[t]he licensing of [a] pin ball machine
under the provisions of [a town] ordinance . . . does not
legalize its possession,” which was criminal under a then-
existing penal statute. Betti, supra, 21 N.J. Misc. at 351.
This Court, by implication, adopted that general rule when it
declared that “local government may not act contrary to State
law.” Summer v. Township of Teaneck,
53 N.J. 548, 554 (1969);
see also Auto-Rite Supply Co. v. Mayor & Township Committeemen of
Woodbridge,
25 N.J. 188, 194 (1957) (stating that municipal
government may not authorize activity, such as selling certain
merchandise on Sunday, that transgresses State law). Here, the
Legislature has declared that operating a sexually-oriented
business within the 1,000 foot buffer zones is violative of this
State's public policy and has made it a fourth-degree crime
unless authorized by a municipal zoning ordinance. N.J.S.A.
2C:34-7a and -7d. Rahway has not enacted such an ordinance. Do-
Wop offers no reason to deviate from the general rule. To do so
would subvert the intent undergirding N.J.S.A. 2C:34-7, which is
to curtail the number of sexually-oriented businesses. We
conclude that N.J.S.A. 2C:34-7 gave Rahway the authority to deny
Do-Wop's license-renewal application.
As noted previously, because N.J.S.A. 2C:34-7 superceded subsection D of Ordinance A-44-93 three months before Do-Wop's application for 1996 licenses was denied, we need not address whether that ordinance violates the MLUL. Suffice it to say that subsection D of that ordinance has no impact on this case. Because of our holding that the denial of the application for renewal of Do-Wop's licenses for 1996 was proper under N.J.S.A. 2C:34-7, the claim that the fingerprinting and disclosure requirements under Rahway's Code are unconstitutional becomes moot.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, VERNIERO, and ZAZZALI join in JUSTICE COLEMAN's opinion. JUSTICE LaVECCHIA did not participate.
NO. A-25 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DO-WOP CORP., t/a RAZZLE
DAZZLE FANTASY RUNWAY,
Plaintiff-Respondent,
v.
CITY OF RAHWAY,
Defendant-Appellant.
DECIDED June 29, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY