Agenda - Planning Commission - 04/05/2012

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Zoning Bulletin February 25, 2612 Volume 61 No. 4 The Background/Facts: In November 2007, 35 Club L.L.C. ( "35 Club ") began operating a business called "XXXV Gentlemen's Club" in the Borough of Sayreville (the "Borough "). The business, "an all -nude gentlemen's cabaret," met the statutory definition of sexually - oriented business under New Jersey statutory law, N.J.S.A. 2C:34-6(a). Shortly after the business opened, the Borough commenced a Chan- cery Division action. In part, it sought to permanently enjoin 35 Club from operating its business at the location it had chosen. The Borough maintained that the location violated N.J.S.A. 2C:34-7(a), which prohib- ited the operation of a sexually- oriented business within 1,000 feet of a public park or residential zone. 35 Club conceded that the Club's location violated the statutory pro- hibition. However, it argued that the statute was unconstitutional as ap- plied to it because there were no "adequate alternative channels of com- munication [for the protected activity] within the relevant market area." Because the statute operates to limit free speech rights being exercised by owners and patrons of sexually- oriented businesses, the New Jersey Supreme Court had previously held that the statute could only limit those rights if there were adequate alternative channels of the commu- nication of that type of speech. Thus, the trial court in this case, in ana- lyzing whether the statute as- applied to 35 Club was unconstitutional in violation of the free speech rights of 35 Club and its patrons, had to look at whether there were adequate alternative channels of communication for sexually- oriented businesses within the relevant market area. The court found that the Borough had shown that there were ad- equate alternative channels of communication available in the relevant market area such that the statute could be 'constitutionally applied to prohibit 35 Club from operating in its current location within 1,000 feet of a public park or residential zone. In reaching that conclusion, the court considered the availability of al- ternative channels of communication outside of New Jersey specifically in Staten Island, New York. The matter was appealed. The Appellate Division reversed. In reversing, it commented that "[t] he inclusion of Staten Island [in the relevant market area] presents an in- dependent basis for rejecting the [Chancery] court's analysis with respect to the availability of suitable sites." The matter was appealed as of right to the Supreme Court of New Jersey. (The appeal arose only though the dissent in the Appellate Divi- sion, and thus the Supreme Court was confined to the issue which was the subject matter of the dissent: whether a trial court addressing an as- applied challenge to the statute may consider potentially available alter- native sites that are outside of New Jersey's borders.) © 2012 Thomson Reuters 5