Posted by: Patricia Salkin | May 12, 2010

NJ Trial Court Finds 24-Hour Use Restriction on Convenience Stores Unconstitutional

Plaintiff NOH, Inc. (“NOH”) leased property in the Borough or Rutherford from owner 7-Eleven, Inc. in October, 2006 and entered into a franchise agreement shortly thereafter.  The property had never been operated as a 24-hour business and in May, 2007, the Borough Council passed Ordinance No. 3139-07 which restricted the hours of operation of convenience stores in all but two districts.  The Ordinance did not address the 24-hour operation of any other type of business.  The next day, NOH was issued a temporary certificate of occupancy and a summons was then issued the following day for violating the ordinance.   Plaintiff filed a complaint challenging the validity of the ordinance, claiming it abridged constitutional rights.

Plaintiff argued that the Fourteenth Amendment to the United States Constitution gives citizens the right to acquire, possess and protect property and that implied within this provision is the right to operate a lawful business, which includes the right to remain open during late night and overnight hours.  Therefore, Plaintiff argued, by imposing unnecessary, unreasonable and arbitrary restrictions with no relation to public interest, the ordinance violates this Fourteenth Amendment right.  Plaintiff contended that the wrongs the Ordinance sought to address were already covered by existing legislation which regulated noise and lighting, and prohibited littering.  Defendant stated that the Ordinance was enacted in response to concern raised by nearby residents that their “peace, privacy and repose” would be affected by operation of a twenty-four hour convenience store. 

The Superior Court of New Jersey agreed with the Plaintiff.  The Court approached its review of the Ordinance with a presumption of validity, which imposed a burden on the Plaintiff to overcome the presumption by a clear showing that the Ordinance is arbitrary or unreasonable.  To interfere with constitutionally protected property right, a municipality must make a clear showing that the ordinance is narrowly tailored to address a genuine public need.  The Court reasoned that the public justification asserted by the Borough, to protect the “peace and repose” of the nearby residential neighborhoods, was not supported by any evidence.  In enacting the Ordinance there was no reference to any studies, or statistical data that would support the position and the Borough was unable to identify any incident which illustrated the disturbance that the twenty-four hour operation of a convenience store would cause.  The Court pointed out that the Borough failed to address the question why the twenty-four hour operation of a Dunkin Donuts at the same location as the 7-11 would not equally disturb the “peace and repose” of the surrounding neighborhood.    The Court held that the Ordinance being predicated on unsupported findings established that its enactment was arbitrary, capricious and unreasonable.  The Court noted that the Borough’s failure to regulate all businesses in the same manner was discriminatory.  The Court went on to reason that the already existent regulatory means that address noise, littering, loitering and lights are sufficient and are less intrusive upon Plaintiff’s property rights than the Ordinance.  Therefore, since the Ordinance was not reasonably related to a public need, unreasonably discriminated against a particular business, and was not the least restrictive means to address the public need, the Court declared the Ordinance to be an invalid exercise of the Borough’s police power. 

NOH, Inc. and 7-Eleven, Inc. v. Borough of Rutherford Council and Mary B. Kriston, No. BER-L-5173-07 (N.J. Super. Ct. 11/10/2009).

The decision can be accessed here

Special thanks to Richard S. Keenan, Esq. of Amato & Associates, P.C. in Garden City, New York for forwarding this decision.


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