HELD: In evaluating the adequacy of alternative channels of communication when deciding an as-applied constitutional challenge to the State’s statute limiting the places where sexually-oriented businesses may operate, trial courts are not precluded from considering 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.
NJ Superior Court reverses injunction against sexually oriented business, holds internet is not sufficient “alternative forum”
Borough of Sayreville v. Club 35, LLC, No. A-3537-08T1 (N.J. Super. App. Div. Sept. 17, 2010)
Alternatives for Adult Uses Required When Town is Sued
Anthony S. Guardino, 5/26/2010 N.Y.L.J. 5, (col. 2)
“The particular issue in TJS was whether the constitutionality of a zoning ordinance should only be evaluated with regard to the ‘alternative avenues of communication‘ the ordinance left open at the time it was passed, or those it left open at the time it was challenged.”
2nd Circuit: Courts must consider “adequacy of alternative sites” at time of challenge to SOB ordinance
TJS of New York, Inc. v. Town of Smithtown, No. 08-2789-cv (2nd Cir. March 10, 2010)
2nd Circuit: When evaluating First Amendment challenges to a zoning ordinance, a court must consider the adequacy of alternatives at the time the ordinance is challenged.