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State v. Miller

Decided: September 28, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD L. MILLER, DEFENDANT-APPELLANT



On appeal from the Middlesex County Court.

Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

[162 NJSuper Page 335] Defendant appeals from his conviction by the Middlesex County Court on a trial de novo of a violation of that portion of the Borough of Milltown zoning ordinance prescribing the permitted size and content of signs erected in the various use districts of the borough.

The appeal is predicated on the claim of prima facie unconstitutionality of the ordinance provision, which purports to prohibit rather than merely regulate expressions of political views. We agree and accordingly reverse the conviction.

Defendant stipulates that he placed upon the front lawn of his house, located in a residential district, a sign approximately four feet by eight feet which bore the following legend: "Welcome!! Prospective residents of Lawrence Brook Glen. This resident and others of Reva Ave. want to welcome you to this flood hazard area. Good luck!! Information available." He further agrees that the sign violated the terms of the ordinance which prohibits all signs in residential districts except the following categories subject to the following limitations:

1. A decorative sign showing name or address of house or family, no larger than two square feet in area.

2. Signs advertising the prospective sale or rental of the premises upon which it is maintained, or signs identifying firms working at a site (one sign per firm), or indicating the future use of the site. Sale or rental signs shall be removed within one month after the sale or lease has been transacted. Other signs permitted in this paragraph shall be removed within one month after the new construction has been occupied. Maximum sign area per sign in square feet shall not exceed 15 per cent of the frontage of the lot along the street sign is to be located measured in feet.

3. A sign erected by the borough, county, state or federal government.

4. Identification signs for and signs announcing events of churches, schools, playgrounds, parks and public utility installations: Total area of signs shall not exceed 25 feet in area on each lot. [Milltown Zoning Ordinance, ยง 20-9.1(a)]

We further note that while subparagraphs (b) and (c) of Section 20-9.1 are more expansive in respect of sign content permitted in the business and industrial zones in the borough, subsection (d) (4) contains a general prohibition against signs exceeding six square feet in area unless a permit is obtained. No standards governing the issuance of such a permit are, however, stated and it is stipulated by

the parties that not only did defendant not have such a permit but also that had he applied for one, it would have been denied because the content of the sign violated subsection (a).

The basis of the conviction by the County Court judge was his expressed conclusion that the size limitation of subsection (d) of the ordinance could be validly applied to the sign in question since the content of the sign was not within First Amendment political free speech protection. We take a different view both as to the content of the sign, which we are persuaded was ...


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