Gebhardt & Kiefer Successfully Defends Municipality’s Use of N.J.S.A. 2C:34-7 to Regulate Location of Sexually Oriented Businesses
Dec 4, 2015 | Written by: Share|
On November 24, 2015, the Appellate Division issued its decision in favor of Gebhardt & Kiefer’s client, the Township of East Hanover. Richard Cushing, Esq. argued the appeal on behalf of Gebhardt & Kiefer.
In the recent unpublished decision, GED LLC v. Twp. of East Hanover, Docket No. A-0757-13T3 (App. Div. Nov. 24, 2015), the Appellate Division concluded that the subsections of N.J.S.A. 2C:34-7 regarding regulating the location of sexually oriented businesses are severable.
The Zoning Officer denied the Plaintiff a zoning permit to operate a sexually oriented business on certain leased property within East Hanover, stating that the proposed use would violate section 95-63(c)(1) of the Township’s zoning ordinance, which prohibited the location of a sexually oriented business within 1,000 feet of certain uses. This section of the zoning ordinances mirrored N.J.S.A. 2C:34-7(a). The Plaintiff filed suit and the trial court determined that the ordinance and state statute were unconstitutional as applied to Plaintiff. However, the trial court also found that East Hanover had not waived its right to enforce N.J.S.A. 2C:34-7(b), which provides that sexually oriented businesses must be surrounded by a 50 foot wide perimeter buffer. The trial court found that subsection b was not unconstitutional as applied to Plaintiff because there were 14 other sites within the municipality that provided constitutionally available locations. Additionally, the trial court only awarded the Plaintiff nominal damages of $1 because the Plaintiff’s damages (i.e. inability to operate a sexually oriented business) flowed from the enforcement of the 50 foot buffer requirement (subsection b) and not the 1,000 foot distance requirement (subsection a). The trial court did award attorneys’ fees and costs as related to the litigation regarding the ordinance and subsection a.
The Plaintiff appealed, and the Appellate Division affirmed the trial court’s ruling. The Appellate Division held that the requirements of N.J.S.A. 2C:34-7 relating to the location of sexually oriented businesses (i.e., the 1,000 foot distance and 50 foot buffer requirements) were severable and that a municipality’s inability to enforce one requirement did not preclude it from enforcing the other statutory requirements, including those of subsection c relating to signage of sexually oriented businesses. The Appellate Division held that subsection b could be constitutionally applied to the Plaintiff. The Appellate Division also upheld the award of only nominal damages relating to the litigation regarding subsection b.