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United Advertising Corp. v. Borough of Metuchen

Decided: March 16, 1964.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- Justice Hall. Hall, J (dissenting).

Per Curiam

This case involves the validity of a provision of a zoning ordinance prohibiting out door advertising signs other than those related to a business conducted on the premises. Off-premise signs are prohibited throughout the municipality. Plaintiff sought to erect one such sign in a business district and another in a manufacturing district. Defendant obtained summary judgment on motion. We reversed, holding that plaintiff was entitled to adduce facts in support of its constitutional challenges. United Advertising Corp. v. Borough of Metuchen, 35 N.J. 193 (1961). The case was thereafter tried and judgment again rendered in favor of defendant. We certified plaintiff's appeal before the Appellate Division heard it.

Plaintiff wishes to erect billboards 12 feet in height by 25 feet in width. These are standard dimensions for billboards throughout the country. Plaintiff concedes its billboards do not belong in residential or scenic areas, but its business being lawful, it claims it should be permitted to operate among other businesses and in industrial districts as well.

Plaintiff's position was rejected in United Advertising Corp. v. Borough of Raritan, 11 N.J. 144 (1952), where the Court refused to strike down an ordinance barring off-premise signs throughout the municipality. Plaintiff contends that case was wrongly decided because the evils once thought to abound in this setting were unreal or had been eliminated by the time of that decision and in truth no zoning purpose remained to be furthered by the ban. Further, plaintiff urges the discrimination between off-premise and on-premise signs violates the mandate of N.J.S.A. 40:55-31 that "All such regulations shall be uniform for each class or

kind of buildings or other structures or uses of land throughout each district * * *."

As to the first proposition, plaintiff starts with an analysis of Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S. Ct. 190, 61 L. Ed. 472 (1917), one of the cases cited in the Raritan opinion. Cusack did not involve a zoning ordinance. Rather the ordinance was addressed to the special evils then charged to billboards. They included the accumulation of offensive materials and rubbish, and the shield afforded for immoral practices and for loiterers and criminals. As to such matters, plaintiff says that today billboards are so constructed, positioned and maintained that these ills no longer exist. In other words, plaintiff says that proper regulation will suffice and enforcement is not so burdensome that prohibition is warranted.

With respect to whether billboards create traffic hazards, a topic which came to the scene after Cusack, plaintiff says that, as to obstruction of view, appropriate setbacks are sufficient; and as to distraction of the motorist, plaintiff claims the billboard, although designed to attract, presents no hazard because a driver's peripheral vision will embrace the roadway while he looks left or right to read the advertisement, and in fact such momentary diversions prevent road hypnosis and thus mean safer driving. Expert testimony was offered to maintain the last proposition, and the trial court was persuaded by it. We have some reservations as to whether billboards would not be a hazard in heavy traffic where a driver has quite enough to do to watch for sudden movements of men and machines. At any rate, for present purposes we accept the trial court's agreement with that testimony.

That the evils which prompted earlier legislation may be gone or be well in hand does not end the inquiry, for new circumstances generate new problems. Since the time Cusack was decided, it has been universally recognized that the growth in population, in commerce, in industry, and in land utilization call for order in land uses, to preserve human values and to conserve property values. Hence our zoning

statute authorizes ordinances to achieve aims made necessary by the new scene and expressed in R.S. 40:55-32:

"Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality."

We have italicized the portion which we think here pertinent.

As we have said, plaintiff concedes a billboard does not belong in a residential area or in places of scenic beauty. The concession is put in terms that billboards are a business use and hence may be barred wherever business does not belong. We think the concession is correct, not merely because billboards are a business use, but because they would clash with those settings whether they solicited an interest in toothpaste or in some charitable cause.

Much is said about zoning for aesthetics. If what is meant thereby is zoning for aesthetics as an end in itself, the issue may be said to be unexplored in our State, but if the question is whether aesthetics may play a part in a zoning judgment, the subject is hardly new. There are areas in which aesthetics and economics coalesce, areas in which a discordant sight is as hard an economic fact as an annoying odor or sound. We refer not to some sensitive or exquisite preference but to concepts of congruity held so widely that they are inseparable from the enjoyment and hence the value of property. Even the basic separation of industrial from commercial from residential, although obviously related to so much of the quoted statute as speaks of health and hazard, rests also on the aesthetic impact of uses ...

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