Township of Saddle Brook v. A.B. Family Center, Inc.

Page 16

307 N.J.Super. 16

704 A.2d 81

TOWNSHIP OF SADDLE BROOK, a Municipal Corporation of the State of New Jersey, Plaintiff-Appellant, v. A.B. FAMILY CENTER, INC., Rhodestar Realty Company and Stuart Rhodes, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Sept. 16, 1997.

Decided Jan. 2, 1998.

Brian M. Chewcaskie, Fort Lee, for plaintiff-appellant (Gittleman, Muhlstock, Chewcaskie & Kim, attorneys; Mr. Chewcaskie, on the briefs).

Dennis J. Oury, Hackensack, for defendants-respondents (Oury & Mizdol, attorneys; Mr. Oury, on the brief).

Bertram P. Goltz, Jr., Deputy Attorney General, argued on behalf of intervenor State of New Jersey (Peter Verniero, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel; Mr. Goltz, on the briefs).

Before Judges LONG, STERN and KIMMELMAN.

The opinion of the court was delivered by

STERN, J.A.D.

The Township of Saddle Brook ("Township") appeals from a judgment (1) declaring its Peace and Good Order Ordinance "per se unconstitutional because it is a content-based regulation of speech"; (2) declaring N.J.S.A. 2C:34-7 "unconstitutional as applied by Saddle Brook based upon the fact that [its] application ... does not provide a reasonable alternative means of communication;" and (3) issuing "a Certificate of Occupancy for the operation" of defendant A.B. Family Center's store. Plaintiff Township had sought "an order restraining the defendant A.B. Family Center from operating a store specializing in adult video and related merchandise" because it was operating in violation of (1) several provisions of the Township's zoning ordinances, (2) the Township's Peace and Good Order Ordinance, and (3) N.J.S.A. 2C:34-7.

Following an evidentiary hearing, the trial judge found "that the town has engaged in selective enforcement of its ordinances" regarding "site plan approval, a certificate of occupancy, sufficient parking spaces, and the failure to obtain proper sign permits," and could not enforce those provisions. He further concluded that the Township's Peace and Good Order Ordinance "plainly violates the First Amendment of the United States Constitution" because it implements a content-based ban of all adult establishments within the city limits. The trial judge also held that N.J.S.A. 2C:34-7, as applied, violates the First Amendment because it "unreasonably limit[s] the defendant's avenues of communication on the grounds that there is no area within the town that does not fall within N.J.S.A. 2C:34-'s 1,000 foot barrier." With regard to N.J.S.A. 2C:34-7, the judge stated The town's Construction and Zoning Officer testified that there is no area within the borough that is beyond the statute's 1,000-foot buffer. The town did not argue that a comparable area in a neighboring borough permits an adult-oriented business. Furthermore, the town did not address why other businesses are permitted to sell adult-oriented merchandise in the borough. Accordingly, this court must hold that provision of the statute unconstitutional as against Saddle Brook on the grounds that the statute does not provide a reasonable alternative means of communication.

The Township has appealed from the resulting judgment, and we granted the State's motion to intervene on the issue related to the constitutionality of N.J.S.A. 2C:34-7. We now reverse the holding that N.J.S.A. 2C:34-7 is unconstitutional as applied and remand for further proceedings in light of our conclusion that N.J.S.A. 2C:34-7 renders municipal boundaries irrelevant where the buffer cannot be satisfied within a particular municipality and that the statute avoids the constitutional infirmity of not providing alternative means of communication within a single municipality.

I.

There is no dispute that the premises involved consist of a two-story, 10,000 square foot building facing Route 46 in Saddle Brook. The retail selling space consists of 500 square feet on the first floor. Certificates of occupancy for retail establishments were issued by the Township to former tenants of the premises. The premises are within 1,000 feet of several residential areas, a playground and the Franklin School. The Township's zoning officer and construction code official ("zoning officer" or "officer"), who testified at the hearing, could identify no location within the Township where an adult video store could operate in excess of 1,000 feet of a school, church, bus stop or residential area.

In April 1995, a certificate of occupancy was issued to Route 46 Video Inc. to operate a "Retail Video Store." Shortly thereafter a revised certificate of occupancy was issued authorizing the "[s]ales and rentals of Video Tapes, Adult Videos, Video Viewing Equipment, Periodicals, Newspapers, Apparel and novelty items."

On May 16, 1995, the owner of Route 46 Video submitted a sketch of a proposed sign, which indicated that the business would offer "triple X rated adult books, magazines, ... C.D. Roms, lingerie and leather." The zoning officer then advised its owner that "he could not conduct such a business on the premises." The next day the zoning officer, believing that the property owner he had known and trusted had misrepresented the truth, revoked the certificate of occupancy and the sign permits previously issued to Route 46 Video. On June 12, 1995, the zoning officer also sent letters to Route 46 Video and the landlord advising that the certificate of occupancy "was issued in error" and that they were in violation of ordinance provisions relating to site plan approval, parking and signage for which Planning Board or Board of Adjustment approval was required.

Shortly after the certificate of occupancy was revoked, the Township officials painted a sidewalk and created a "no parking" area around the building. According to the property owner, the mayor made various threats to the effect that if the store did not close the owner would "lose [his] building" and that "[the mayor] would see that aggressive law enforcement was done." Route 46 Video endeavored to obtain accelerated judicial relief, but was unsuccessful.

On September 7, 1995, A.B. Family Center, Inc. ("defendant") submitted an application for a certificate of occupancy for the same premises. The application described the proposed use as "retail video variety store for sale and rental of videos, accessories and related items." The application was denied because:

1. Site plan approval pursuant to section 163, the site plan ordinance, is required.

2. Parking requirements must be shown to conform with section 206-36 of the zoning ordinance.

3. Existing signs are non-conforming and pursuant to section 206-73A of the zoning ordinance they cannot be used.

An appeal to the Board of Adjustment was unsuccessful, but defendant opened its business relying on a 1986 certificate of occupancy. A cease and desist order was issued by the zoning officer on December 29, 1995. When defendant operated its business in violation of the cease and desist order, the Township filed municipal court complaints and commenced this action seeking to enforce its ordinances.

According to the zoning officer's testimony, the site plan was required because approximately eight parking spaces had been eliminated when the sidewalk was created. He admitted, however, that prior to the painting of the parking spaces, the building "did not comply with the parking requirements of the zoning ordinance" but that certificates of occupancy had been issued to prior tenants. The officer also admitted that "[f]rom a parking standpoint," "there's no difference between a video store, clothing store or a [retail] tool store." He also testified that certificates of occupancy were issued to numerous other businesses in the Township which did not comply with the parking ordinance. The zoning officer concluded that the sign ordinance was also violated because defendant had no certificate of occupancy to operate a business and had no sign permit, but admitted that he did not always require the removal of signs which had been erected or installed without a permit.

II.

As noted, the Township denied defendant's application for a certificate of occupancy based on purported violations of ordinance provisions relating to site plan approval, parking requirements and signs, and the trial court found that these provisions were selectively enforced. The Peace and Good Order ordinance was not yet adopted at the time the application was denied.

The fact that other entities have obtained approval of similar licenses or permits in similar circumstances does not by itself support a finding of selective enforcement. Butler Oak Tavern v. Division of Alcoholic Beverage Control, 20 N.J. 373, 382, 120 A.2d 24 (1956). "The mere fact that a law has not been fully enforced against others does not give a defendant the right to violate it." State v. Boncelet, 107 N.J.Super. 444, 453, 258 A.2d 894 (App.Div.1969). The party asserting selective enforcement has a "heavy" burden of proof. State v. DiFrisco, 118 N.J. 253, 266, 571 A.2d 914 (1990).

We are nonetheless satisfied that the record justifies the trial judge's conclusion that the municipality endeavored to selectively enforce site plan, parking and sign requirements in order to prevent the operation of an adult video and bookstore. Stated otherwise, the record supports the view that the technical violations of the ordinance provisions were of no concern to the municipality but for defendant's desire to sell adult books, videos and related goods. We, therefore, find no basis to disturb the trial judge's decision to deny injunctive relief on the basis of zoning ordinance violations. ¹

III.

The Township argues that its Peace and Good Order ordinance should be presumed to be constitutional and control the disposition of the matter before us even though it was not adopted until January 4, 1996. ² The ordinance was found to be facially unconstitutional because...