Agenda - Planning Commission - 04/05/2012

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February 25, 2012 [ Volume 6 I No. 4 Zoning Bulletin DECISION: Affirmed in part and reversed in part. The Supreme Court of New Jersey held that "in evaluating the ad- equacy of alternative channels of communication," New Jersey trial courts may consider the existence of sites that are located outside of New Jersey but that are found within the relevant market area as defined by the parties' experts. In reaching its conclusion, the court noted that the legislature's state- wide approach to regulating sexually - oriented businesses demanded that any ordinance be tested by .means of a regional market rather than be confined to the borders of any particular municipality. The court had previously held that, in the context of a statewide statute, New Jersey trial courts could look beyond the borders of any particular municipality and consider on a broader scale whether there were adequate alternative avenues for the operation of those business establishments. Here, the court now determined that just as it had held courts could look beyond municipal borders in evaluating the availability of alterna- tive avenues of communications, courts could also look beyond the bor- ders of the state if within the relevant market area. The court based that determination on several grounds: First, the court recognized that it might be "far more conve- nient for a patron to travel a few minutes into New York or Pennsylvania than to travel twenty minutes away to [another municipality in New Jersey]." Second, the court found the record made clear that patrons of sexual- ly- oriented businesses often travel from and to states other than the ones in which they reside to access this sort of entertainment. Confining court review only to potentially available locations within state borders thus "may not comport with the manner in which individuals in fact exercise the rights that the First Amendment protects," said the court. The court also noted that "refusing to permit any consideration of locations that are found in nearby states would result in unequal treat- ment among [New Jersey] municipalities themselves because a town in the middle of the State would be able to use a wide market area," while a town on the border would have a "truncated" regional market ap- proach. This, said the court, could require border municipalities to host far more sexually- oriented businesses than would otherwise be the case. Finally, the court rejected the argument that courts should not con- sider sites beyond New Jersey borders because the operators of sexually - oriented businesses have no voice in the government of those out-of-state municipalities. The court found that argument ignored the fact that such 6 © 2012 Thomson Reuters