(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 November 30, 1998 -- Decided January 28, 1999
STEIN, J., writing for a unanimous Court.
This appeal concerns the validity of governmental regulations that have the effect of barring an adult
book store from operating anywhere within the Township of Saddle Brook (Township).
The business that challenges these regulations is A.B. Family Center, Inc. (Family Center), which
sought permission from the Township in 1995 to operate a store specializing in the sale and rental of adult
videos and related merchandise. For reasons supposedly unrelated to the nature of Family Center's business,
the Township denied a certificate of occupancy to Family Center. Notwithstanding the denial and an
unsuccessful appeal of the denial, Family Center opened its business. After Family Center ignored an order
to cease its operations issued by the local zoning officer, the Township filed suit against Family Center to
enjoin the violation of certain ordinances by Family Center.
The Township filed an amended complaint in April 1996, asserting the business operated by Family
Center violated a state statute, N.J.S.A. 2C:34-7, which bars the operation of a sexually oriented business
within 1,000 feet of any place of public worship, any school or school bus stop, any municipal or county
playground or place of recreation, or any area zoned for residential use. As the Township was developed and
zoned, there was no site on which a sexually oriented business could operate without violating the statute.
In the legal action in the Law Division, the court held the statute to be unconstitutional as applied to
the Township because there was no location within the Township that did not fall within the 1,000-foot area
of prohibition. The court also held unconstitutional the Township's Peace and Good Order ordinance, which
barred adult bookstores and video stores from operating anywhere in the Township. Further, the trial court
denied injunctive relief, finding the Township to have enforced selectively its site plan, parking, and sign
ordinances in denying Family Center permission to operate its business. The Township appealed these rulings
to the Appellate Division.
The Appellate Division agreed with the Law Division's rulings on selective enforcement and the
Peace and Good Order ordinance, but disagreed with the conclusion that the state statute was
unconstitutional as applied because Family Center was effectively precluded from operating its business
anywhere in the Township. The Appellate Division was convinced the Legislature, which acted after rulings
by the United States Supreme Court in the area of regulating sexually oriented businesses, intended N.J.S.A.
2C:34-7 to allow the 1,000-foot buffer zones to apply beyond municipal boundaries.
The Appellate Division remanded the matter to the trial court for an evidentiary hearing to
determine whether there were sites outside the Township, but within reasonable proximity of Family
Center's site, available for sexually oriented businesses. The court placed on the Township the burden of
proving the availability of such sites.
The Supreme Court granted Family Center's petition for certification and denied the cross-petition
of the Township, which sought review of the adverse rulings on the Peace and Good Order ordinance and
the selective enforcement of other ordinances.
HELD: The constitutionality of a state statute that restricts possible locations of sexually oriented businesses
is not required to be determined solely by consideration of the boundaries of the municipality in which the
business challenging the statute seeks to operate.
1. Substantially for the reasons of the Appellate Division, the Court agrees that the validity of N.J.S.A.
2C:34-7 is not to be decided strictly by whether there is a location within the municipality where the sexually
oriented business seeks to operate that does not violate the statute's 1,000-foot buffer requirement.
Decisions of the United States Supreme Court establish the criteria for evaluating the constitutionality of
restrictions on sexually oriented businesses; some have suggested or held that the constitutionality of
countywide zoning ordinances restricting protected speech should be considered on a regional basis. (pp.5-10)
2. The governing federal cases focus on whether alternative sites for the protected activity are feasible and in
this analysis de-emphasize the significance of higher costs. They also stress that in determining the sufficiency
of alternative avenues of communication a relevant inquiry is whether the extent of the alternative locations
is commensurate with the size of the relevant market. (pp.10-13)
3. On remand, the Law Division first must determine the relevant market area, reasonably proximate to the
Township, which may be determined by evidence of regional marketing patterns, transportation availability,
and other factors considered relevant by the parties and the court. Expert testimony may be offered. The
court must also determine the relative availability of sites within the market. The ultimate question to be
determined is whether the extent of the availability of alternative channels of communication, in relation to
the size of the relevant market, is sufficient to make the state statute constitutional as applied to Family
Center's site. (pp.13-15)
4. The Appellate Division's conclusion that the Township should bear the burden of proving the sufficiency
of alternative avenues of communication in the market area accords with First Amendment case law. (pp.15-16)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law
Division for further proceedings consistent with the opinions of the Appellate Division and of this Court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
180 September Term 1997
TOWNSHIP OF SADDLE BROOK, a
Municipal Corporation of the State
of New Jersey,
Plaintiff-Respondent,
and
ATTORNEY GENERAL OF NEW JERSEY,
Intervenor-Respondent,
v.
A.B. FAMILY CENTER, INC., RHODESTAR
REALTY COMPANY and STUART RHODES,
individually,
Defendants-Appellants.
Argued November 30, 1998 -- Decided January 28, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
307 N.J. Super. 16 (1998).
Dennis J. Oury argued the cause for
appellants (Oury & Mizdol, attorneys).
Brian M. Chewcaskie argued the cause for
respondent (Gittleman, Muhlstock, Chewcaskie
& Kim, attorneys).
Bertram P. Goltz, Jr., Deputy Attorney
General, argued the cause for intervenor-respondent (Peter Verniero, Attorney General
of New Jersey, attorney; Joseph L. Yannotti,
Assistant Attorney General, of counsel).
The opinion of the Court was delivered by
STEIN, J.
This appeal concerns the validity of governmental
regulations that effectively bar an adult book store from
operating in the Township of Saddle Brook (Township). We affirm
the judgment of the Appellate Division remanding the matter to
the Law Division for further proceedings, substantially for the
reasons set forth in that court's opinion. Saddle Brook v. A.B.
Family Center, Inc.,
307 N.J. Super. 16, 26-33 (App. Div. 1998).
We add these comments to assist the Law Division in the conduct
of the remand proceeding.
The opinion below thoroughly describes the factual
background and procedural history, id. at 20-23, but a brief
summary will provide a context for this Court's supplemental
observations. In September 1995, Petitioner A.B. Family Center
(Family Center) sought permission from the Township to operate a
store specializing in the sale and rental of adult videos and
related merchandise. The Township denied a certificate of
occupancy, asserting that the applicant (1) was required to
obtain site plan approval; (2) had not demonstrated compliance
with the parking provisions of the zoning ordinance; and (3)
proposed the unlawful use of nonconforming signs. After an
unsuccessful appeal to the Board of Adjustment, Family Center
opened its business in reliance on a 1986 certificate of
occupancy for the premises, and continued operations in defiance
of a cease and desist order issued by the zoning officer. The
Township instituted this action to enjoin the violation of its
ordinances.
In April 1996, the Township filed an amended complaint
alleging that Family Center's business also violated N.J.S.A.
2C:34-7, which prohibits, unless expressly permitted by municipal
ordinance, the operation of a sexually oriented business within
1000 feet of any place of public worship, any school or school
bus stop, any municipal or county playground or place of public
recreation, or any area zoned for residential use. The Law
Division heard testimony from the Township's zoning officer that
a sexually oriented business could not operate at any site within
the entire township without violating the distance restrictions
of the state statute.
In the Law Division, the Township also asserted that Family
Center's business violated the provisions of the Township's Peace
and Good Order ordinance, adopted in January 1996, which barred
adult bookstores and video stores from operating at any location
within the Township.
The Law Division determined that the Township had
selectively enforced its site plan, parking, and sign ordinances
to prevent Family Center from operating, and denied injunctive
relief based on the alleged ordinance violations. That court
also held that the Township's Peace and Good Order ordinance was
unconstitutional because the Township failed to demonstrate that
a complete prohibition of sexually oriented businesses served a
compelling local interest or that such a prohibition constituted
the least restrictive means for achieving the Township's
objectives. The Appellate Division agreed with the Law
Division's rulings on both those issues, 307 N.J. Super. at 23-26, and we denied the Township's cross-petition for certification
seeking to contest those determinations.
153 N.J. 217 (1998).
The Law Division also concluded that N.J.S.A. 2C:34-7 was
unconstitutional as applied to the Township "on the ground[] that
there is no area within the town that does not fall within [the
statute's] 1,000 foot barrier." 307 N.J. Super. at 27. The
Appellate Division rejected that conclusion, noting that because
N.J.S.A. 2C:34-7 is a state statute its validity should not be
determined solely on the basis of municipal boundaries, and
acknowledging that "locations . . . outside the Township's
boundaries can satisfy the constitutional requirement that the
restriction on speech leave open [alternative] channels of
communication." Ibid. Because that contention had not been
pressed below, the Appellate Division remanded the matter to the
Law Division to conduct an evidentiary hearing on the
availability outside of the Township of sites for sexually
oriented businesses within reasonable proximity to Family
Center's site in Saddle Brook. The court imposed on the Township
the burden of proving the availability of such sites. Id. at 32-33.
The question presented is one of first impression in this
jurisdiction. We are in accord with the Appellate Division's
conclusion that the constitutionality of a state statute
restricting available locations of sexually oriented businesses
need not be determined solely by reference to the boundaries of
the municipality in which the business challenging the
restriction seeks to locate. The basic criteria for testing the
constitutionality of analogous restrictions on sexually oriented
businesses are set forth in the United States Supreme Court's
opinion in Renton v. Playtime Theatres, Inc.,
475 U.S. 41,
106 S.
Ct. 925,
89 L. Ed.2d 29 (1986). In Renton, the Court sustained
the constitutionality of an ordinance adopted by the City of
Renton, Washington, prohibiting any adult motion picture theater
from locating within 1000 feet of any residential zone or
dwelling, church, or park, or within one mile of any school. The
Court sustained the finding of the District Court that the
ordinance's adoption was "unrelated to the suppression of free
expression," and that the City's dominant purpose was to "prevent
crime, protect the city's retail trade, maintain property values,
and generally 'protec[t] and preserv[e] the quality of
neighborhoods, commercial districts, and the quality of urban
life.'" Id. at 48, 106 S. Ct. at 929, 89 L. Ed.
2d at 38. The
Court described the Renton ordinance as consistent with the
standard for characterizing speech regulations as "content-neutral," because it could be justified without regard to the
content of the regulated speech. Initially determining that the
Renton ordinance was "designed to serve a substantial
governmental interest," the Court reaffirmed that "a city's
'interest in attempting to preserve the quality of urban life is
one that must be accorded high respect.'" Id. at 50, 106 S. Ct.
at 930, 89 L. Ed.
2d at 39 (quoting Young v. American Mini
Theatres, Inc.,
427 U.S. 50, 71,
96 S. Ct. 2440, 2453,
49 L. Ed.2d 310, 327 (1976) (plurality opinion)). Concerning the issue
relevant to this appeal -- whether the Renton ordinance allowed
for reasonable alternative avenues of communication -- the Court
noted that the ordinance left available approximately 520 acres,
or more than five percent of the city's land area, for use as
adult theater sites. Responding to the contention that
"practically none" of the undeveloped land was currently being
marketed for sale or lease, the Court noted "[t]hat respondents
must fend for themselves in the real estate market, on an equal
footing with other prospective purchasers and lessees, does not
give rise to a First Amendment violation." Id. at 54, 106 S. Ct.
at 932, 89 L. Ed.
2d at 41-42.
In Schad v. Borough of Mount Ephraim,
452 U.S. 61,
101 S.
Ct. 2176,
68 L. Ed.2d 671 (1981), the Supreme Court invalidated
a municipal ordinance that prohibited all live entertainment,
including nonobscene nude dancing, in the Borough's commercial
zoning district. The Court determined that the ordinance could
not be sustained as a reasonable "time, place, and manner"
restriction on commercial speech. The Court noted that the
Borough did not "identify the municipal interests making it
reasonable to exclude all commercial live entertainment but to
allow a variety of other commercial uses in the Borough," and
that the ordinance failed to "leave open adequate alternative
channels of communication." Id. at 74-76, 101 S. Ct. at 2186, 68
L. Ed.
2d at 684-85. In response to the Borough's contention
that the ordinance was sustainable because the prohibited
activities were permitted in neighboring municipalities, the
Court stated:
The Borough nevertheless contends that
live entertainment in general and nude
dancing in particular are amply available in
close-by areas outside the limits of the
Borough. Its position suggests the argument
that if there were countywide zoning, it
would be quite legal to allow live
entertainment in only selected areas of the
county and to exclude it from primarily
residential communities, such as the Borough
of Mount Ephraim. This may very well be
true, but the Borough cannot avail itself of
that argument in this case. There is no
countywide zoning in Camden County, and Mount
Ephraim is free under state law to impose its
own zoning restrictions, within
constitutional limits. Furthermore, there is
no evidence in this record to support the
proposition that the kind of entertainment
appellants wish to provide is available in
reasonably nearby areas. The courts below
made no such findings; and at least in their
absence, the ordinance excluding live
entertainment from the commercial zone cannot
constitutionally be applied to appellants so
as to criminalize the activities for which
they have been fined.
[Ibid., 101 S. Ct. at 2186-87, 68
L. Ed.
2d at 685.]
Justice Blackmun, in his concurring opinion, also addressed
the question whether a municipality constitutionally may restrict
protected speech if that form of expression is permitted in
adjacent communities:
My other observation concerns the
suggestion that a local community should be
free to eliminate a particular form of
expression so long as that form is available
in areas reasonably nearby. In Mini Theatres
the Court dealt with locational restrictions
imposed by a political subdivision, the city
of Detroit, that preserved reasonable access
to the regulated form of expression within
the boundaries of that same subdivision. It
would be a substantial step beyond Mini
Theatres to conclude that a town or county
may legislatively prevent its citizens from
engaging in or having access to forms of
protected expression that are incompatible
with its majority's conception of the "decent
life" solely because these activities are
sufficiently available in other locals. I do
not read the Court's opinion to reach, nor
would I endorse, that conclusion.
. . . This case does not require articulation
of a rule for evaluating the meaning of
"reasonable access" in different contexts.
The scope of relevant zoning authority varies
widely across our country, as do geographic
configurations and types of commerce among
neighboring communities, and this issue will
doubtless be resolved on a case-by-case
basis.
[Id. at 77-79, 101 S. Ct. at 2187-88, 68 L. Ed.
2d at 686-87
(footnote omitted).]
Some federal courts have either implied or held that the
constitutionality of countywide zoning ordinances restricting
protected speech should be evaluated on a regional basis, and not
determined by whether the use is permitted in the municipality
where the applicant seeks to locate. See, e.g., International
Eateries of Am., Inc. v. Broward County,
941 F.2d 1157 (11th Cir.
1991) (upholding county zoning ordinance prohibiting adult night
clubs within 500 feet of residential districts or within 1000
feet of churches, and noting that ordinance allowed for
reasonable alternative avenues of communication because twenty-six other sites in Broward County could accommodate applicant's
nonobscene nude dancing establishment), cert. denied,
503 U.S. 920,
112 S. Ct. 1294,
117 L. Ed.2d 517 (1992); Keego Harbor Co.
v. City of Keego Harbor,
657 F.2d 94, 98 (6th Cir. 1981)
(invalidating city ordinance prohibiting adult movie theatres in
all zoning districts, but noting that "[i]t might be that the
First Amendment burden would be rendered incidental if, for
example, county-wide zoning were present to ensure that there
[was] reasonable access to the protected activity in nearby
areas."); Ranch House, Inc. v. Amerson,
22 F. Supp.2d 1296, 1309
(N.D. Ala. 1998) (upholding Alabama state statute prohibiting
operation of "adult-only" enterprises within 1000 feet of
residences, churches, schools, parks or recreation centers and
noting that availability of sites permitting such enterprises
within same county demonstrates that statute did not unreasonably
restrict alternative avenues of expression); Wolfe v. Village of
Brice,
997 F. Supp. 939, 944-45 (S.D. Ohio 1998) (invalidating
village ordinance imposing minimum distance restriction on adult
entertainment facilities that effectively prohibited plaintiff's
business from locating anywhere within village; rejecting
contention that availability of sites for such use in adjacent
City of Columbus could sustain ordinance absent any proof in
record of countywide zoning).
In addressing whether alternative sites for a protected
activity should be considered in determining the availability of
other adequate channels of communication, courts have focused on
whether such sites are feasible alternatives and, consistent with
Renton, have de-emphasized the significance of higher costs in
determining feasibility. See Woodall v. City of El Paso,
49 F.3d 1120, 1124 (5th Cir.) (describing factors material to determining
availability of alternative sites and noting that "[t]here is no
requirement that an adult business be able to obtain existing
commercial sites at low cost . . . to ensure its prosperity."),
cert. denied,
516 U.S. 988,
116 S. Ct. 516,
133 L. Ed.2d 425
(1995); Topanga Press, Inc. v. City of Los Angeles,
989 F.2d 1524, 1531 (9th Cir. 1993) (listing factors that determine
whether alternative site is part of relevant market and
emphasizing that whether site "will result in lost profits [or]
higher overhead costs" is irrelevant to whether site should be
included in determining relevant market), cert. denied,
511 U.S. 1030,
114 S. Ct. 1537,
128 L. Ed.2d 190 (1994).
The federal cases also emphasize that in determining the
sufficiency of alternative avenues of communication a relevant
inquiry is whether the extent of the alternative opportunities to
locate the regulated use is commensurate with the size of the
relevant market. See Walnut Properties, Inc. v. City of
Whittier,
861 F.2d 1102, 1107-09 (9th Cir. 1988) (holding
unconstitutional city ordinance prohibiting sexually oriented
businesses from locating within 500 feet of residences or within
1000 feet of schools, churches, parks or other such businesses
based on finding that "paucity of alternative sites is glaring"
and that ordinance "does not allow sufficient alternatives for
relocation of adult businesses."), cert. denied,
490 U.S. 1006,
109 S. Ct. 1641,
104 L. Ed.2d 157 (1989); CLR Corp. v. Henline,
702 F.2d 637, 639 (6th Cir. 1983) (invalidating city ordinance
prohibiting sexually oriented businesses from locating within 500
feet of any church, school or residence or within 1000 feet from
similar business based on finding that in city with 60,000 people
occupying twenty-five square miles ordinance would permit only
two to four sexually oriented businesses and permitted sites
would be restricted to within 2500 feet of frontage in B-2
business district); Alexander v. City of Minneapolis,
698 F.2d 936, 938-39 (8th Cir. 1983) (invalidating distance prohibition on
sexually oriented businesses applicable to both new and existing
businesses based on District Court's determination that ordinance
would "substantially [reduce] the number of adult bookstores and
theatres in Minneapolis" and "no new adult bookstores or theatres
would be able to open."); Basiardanes v. City of Galveston,
682 F.2d 1203, 1213-16 (5th Cir. 1982) (invalidating Galveston
ordinance imposing distance restrictions on sexually oriented
businesses that effectively barred such establishments from
central business district and limited their location to areas
zoned for industrial use that lacked access roads and included no
rental establishments); cf. Dumas v. City of Dallas,
648 F. Supp. 1061, 1070-71 (N.D. Tex. 1986) (upholding Dallas ordinance
imposing distance restrictions on sexually oriented businesses
based on finding that ordinance "permits location in several
areas stretching from the inner city area to the north and south
suburbs, [and] accessed by . . . major thoroughfares . . . .
Eight to ten percent of the city's total area -- 21,000 acres -
is available."), aff'd sub nom. FW/PBS, Inc. v. City of Dallas,
837 F.2d 1298 (5th Cir. 1988), cert. granted on other grounds,
489 U.S. 1051,
109 S. Ct. 1309,
103 L. Ed.2d 578 (1989), aff'd
in part, vacated in part,
493 U.S. 215,
110 S. Ct. 596,
107 L.
Ed.2d 603 (1990).
The relevant decisional law demonstrates that the Law
Division's responsibilities on remand are formidable. Although
N.J.S.A. 2C:34-7 is not a statewide zoning regulation for
sexually oriented businesses, it does constitute a statewide
restriction on their location. Nor is our characterization of
the statute as a statewide restriction on the location of
sexually oriented businesses affected by the fact that the state
statute expressly authorizes municipalities, at their option, to
override the statutory limitation by a local zoning ordinance
more permissive than the state statute. Absent such an election
by affected municipalities the statutory limitations will govern.
Accordingly, the statute's constitutionality as applied will
depend on whether its application to Saddle Brook allows adequate
alternative channels of communication within the relevant market
area.
The Law Division will be required preliminarily to determine
the market area relevant to the Family Center site in order to
ascertain the adequacy of alternative available sites. We
anticipate that the parties will offer expert testimony on that
issue to assist the Law Division in its determination. As the
Appellate Division opinion suggests, the relevant market area
should include areas located in other municipalities "within
reasonable proximity to the Saddle Brook location." 307 N.J.
Super. at 33. We infer that the trial court's determination of
reasonable proximity may be informed by evidence of regional
marketing patterns, availability of public transportation and
access by automobiles, geographical distribution of customers at
comparable sexually oriented businesses, and other factors deemed
relevant by the parties and the court. The trial court's
ascertainment of the availability of alternative sites
necessarily will depend in part on the provisions of zoning
ordinances enacted by neighboring municipalities that permit,
prohibit, restrict or affect the feasibility of establishing
sexually oriented businesses. After determining the relevant
market and the relative availability of sites within that market,
the Law Division must then determine whether the extent of the
availability of alternative channels of communication, in
relation to the size of the relevant market, is adequate to
sustain the constitutionality of N.J.S.A. 2C:34-7 as applied to
the Family Center site.
Finally, we concur with the Appellate Division's conclusion
that the Township should bear the burden of proving the adequacy
of available alternative avenues of communication within the
relevant marketing area. 307 N.J. Super. at 33. The Attorney
General relies on J.E. on behalf of G.E. v. State of New Jersey,
Department of Human Services, Division of Developmental
Disabilities,
131 N.J. 552, 569-70 (1993), for the principle that
"the party with greater expertise and access to relevant
information should bear [the] evidentiary burden[]," and argues
that Family Center is the party best suited to produce evidence
concerning available alternative sites for sexually oriented
businesses. Whether Family Center is better equipped than the
Township and the State to bear the burden of proof at the remand
hearing is debatable. We decline to disturb the Appellate
Division's allocation of the burden of proof because we believe
it to be consistent with First Amendment decisional law that
recognizes the fairness of imposing on the public body that
elects to restrict protected speech the obligation of
demonstrating that its restrictions are reasonably tailored to
achieve its objectives, are not more intrusive than necessary,
and provide adequate available alternative avenues of
communication. See Schad, supra, 452 U.S. at 74, 101 S. Ct. at
2186, 68 L. Ed.
2d at 689; Ben Rich Trading, Inc. v. City of
Vineland,
126 F.3d 155, 163 (3d Cir. 1997); Phillips v. Borough
of Keyport,
107 F.3d 164, 173 (3d Cir.), cert. denied, ___ U.S.
___,
118 S. Ct. 336,
139 L. Ed.2d 261 (1997).
We affirm the judgment of the Appellate Division and remand
the matter to the Law Division for further proceedings consistent
with the opinions of the Appellate Division and of this Court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-180 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
TOWNSHIP OF SADDLE BROOK, etc.,
Plaintiff-Respondent,
and
ATTORNEY GENERAL OF NEW JERSEY,
Intervenor-Respondent,
v.
A.B. FAMILY CENTER, INC., et al.,
Defendants-Appellants.
DECIDED January 28, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY