Agenda - Planning Commission - 01/06/2011

Home

34 November. 10, 2010 1 Volume 41 No. 21 Zoning Bulletin restrictions in § 2C:34 - 7, as applied to Club 35, had to also be constitu- tionally permissible. As determined by prior New Jersey case law, § 2C:34- 7(a)'s restric- tion on the location of sexually oriented businesses would not violate the First Amendment as applied to a particular business if the munici- pality enforcing § 2C:34 -7(a) could show that "there were adequate al- ternative channels of communication within the relevant market area." Thus, here, § 2C:34- 7(a)'s location restrictions could only be applied to Club 35 (thus prohibiting its operation at the Property) if the Bor- ough could show "there were adequate alternative channels of commu- nication within the relevant market area." The court explained that to meet that burden, the Borough had to: (1) identify "the relevant market area of the sexually oriented business," including areas in other municipalities within reasonable proximity, as determined by evidence of regional marketing patterns; availability of public transportation and access by automobiles; geographical distribu- tion of customers at comparable sexually oriented businesses; and other relevant factors; (2) identify "the availability of alternative sites within the relevant market," considering local zoning restrictions as well as the feasibility of the site; and (3) show that the "available sites, in relation to the size of the market area, provided enough suitable alternatives sites for expression to comply with constitutional standards. The trial court had found that the Borough met this burden. The ap- pellate court disagreed. It held that the Borough did not meet its bur- den of identifying Club 35's relevant market area so as to defeat Club 35's claim that § 2C:34 -7(a) violated the First Amendment as applied to Club 35. It found the Borough failed to identify Club 35's relevant market area because it did not address regional marketing patterns or available public transportation. The appellate court also found that the trial court in reaching its conclusion had failed to address the factor of the availability of alter- native sites. The court concluded that without determination on these "two predicate steps," it could not ascertain whether § 2C:34 -7 left "a suffi- cient number of suitable alternative sites for the expression of the con- stitutionally protected form of expression" by Club 35. See also: Township of Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587,722 A.2d 530 (1999). See also: Township of Cinnaminson v. Bertino, 405 N.J. Super. 521, 966 A.2d 14 (App. Div. 2009), certification denied, 199 N.J. 516, 973 A.2d 384 (2009). Case Note: As part of the injunctive relief it awarded to the Bor- ough, the trial court had imposed a permanent and recordable 10 © 2010 Thomson Reuters