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Berg Agency v. Township of Maplewood

Decided: November 8, 1978.

THE BERG AGENCY, A NEW JERSEY CORPORATION, AND LAWRENCE PINILIS, INDIVIDUALLY, PLAINTIFFS,
v.
THE TOWNSHIP OF MAPLEWOOD, TOWN OF WEST ORANGE, AND VILLAGE OF SOUTH ORANGE, MUNICIPAL CORPORATIONS OF THE STATE OF NEW JERSEY, DEFENDANTS



Harth, J.c.c. (temporarily assigned).

Harth

[163 NJSuper Page 544] In issue in this declaratory judgment proceeding is the constitutionality, vel non , of those sections of ordinances enacted in the defendant Towns of Maplewood, West Orange and South Orange which prohibit or regulate the use of "for sale" and "sold" signs on private residential property.

Plaintiff Lawrence Pinilis was the owner of a one-family house located in Maplewood in a residential zone where signs advertising that a house is for sale, or sold, are prohibited.

Plaintiff Berg Agency is a licensed real estate brokerage firm with offices throughout New Jersey and which maintains an office in defendant Town of West Orange. It belongs to the Board of Realtors of the Oranges and Maplewood and in the course of its business lists and sells homes located in the three defendant towns. Pinilis listed his house for sale with the Berg Agency. Despite the Berg Agency's efforts, which included newspaper advertising, the house remained unsold for a considerable period of time. In an effort to stimulate sales activity Pinilis took advantage of one of the services offered by the Berg Agency, which was the posting of a "for sale" sign on the Pinilis' lawn.

Although informed by the authorities that the sign was in violation of Ordinance 7.03, "Signs Prohibited," which reads as follows:

7.03-1. Roof Signs and Marquee Signs as defined in the Building Code and billboards, strings of pennants, advertising flags, and any modifications thereof.

7.03-2. Political, For Sale (or Sold) and For Rent (or Rented) Signs in one (1) and two (2) Family Residential Zones and Garden Apartment Zones, except For Sale (Sold) or For Rent (Rented) on Vacant Land or New Construction,

Pinilis refused to remove it. A summons was issued and the matter carried pending the outcome of this action.

With respect to the Town of West Orange, the Berg Agency placed a similar "for sale" sign at 1 Bradley Terrace in West Orange, which resulted in a West Orange officer sending a letter to it advising that the sign should be removed as it was in violation of West Orange Ordinance 427-77. Subsection 25-10.5(c) of that ordinance provides:

On any improved residential property, a temporary real estate "for sale," "for rent," or "sold" sign erected by the owner not over 12 square feet in area when located behind the prevailing front

line on the block, except that on land where garden apartments are situated or upon vacant land, said signs may be erected by the owner or his real estate broker. On all commercial and industrial properties, said signs may be erected by either the owner or his real estate broker, whether improved or vacant.

The South Orange ordinance, which is also challenged as being too unduly restrictive to be constitutional, reads as follows:

Section 2009.1(e):

Signs advertising premises, or any portion thereof, for sale or for rent on the premises on which they are displayed shall not exceed nine (9) square feet in area in Residence "C" zone. Nothing herein contained shall prevent an owner from putting up such a sign in Residence "A" or Residence "B" zones, not exceeding nine (9) square feet, which sign must be set back at least five (5) feet from any boundary line.

It is apparent that a fair reading of the West Orange and South Orange ordinance provisions does not indicate that such provisions regulate the content of the real estate sign. However, the pertinent provision of the West Orange ordinance as stipulated has been interpreted by that town to regulate the use of real estate signs as follows: (1) signs are limited to 12 square feet in area; (2) they must be located behind the prevailing front line of the block; (3) the legend on a sign is limited to "for sale," "for rent" or "sold," and the telephone numbers of both the property owner and broker; (4) a broker may erect his own sign on vacant land regardless of zone.

The pertinent provisions of the South Orange ordinance have been interpreted and applied by that town to regulate the use of real estate signs in the following manner: (1) only one sign may be erected on any residential property; (2) no sign may exceed nine square feet in area; (3) every sign must be set back at least five feet from any boundary line; (4) prior to the erection of a sign the property owner must inform the building inspector of the date on which the sign will first be displayed; (5) the sign is permitted to be displayed

for a 90-day period, with an opportunity for renewal, provided there is notice of intention to renew prior to the expiration of the period; (6) the legend on the sign is limited to the words "for sale" or "for rent," the property owner's name and telephone numbers of both the owner and realtor; signs with the word "sold" are prohibited; (7) signs may be erected by either the property owner or broker.

Evidence submitted on behalf of Maplewood showed that the sign prohibition was originally requested by the Board of Realtors of the Oranges and Maplewood by letter dated July 13, 1972. Portions of the letter indicate the reasoning behind the request:

The National Association of Realtor Boards, of which this Board of Realtors is a member, adopted a program to "MAKE AMERICA BEAUTIFUL" several months ago. As you are no doubt aware, there is also a national program to "MAKE AMERICA BEAUTIFUL." In our efforts to implement these programs at the grass roots level, we find that one of our own business practices runs contrary to these aims -- the placing of real estate signs in residential areas.

Although it has been the policy of our Board since 1937 to discourage the erection of signs in all residential areas, we have no powers to enforce this policy. We, therefore, respectfully request that an ordinance be adopted by the Township of Maplewood prohibiting all signs in residential zones. We are keenly aware that the adoption of such an ordinance will take from us a very beneficial tool of our field of endeavor. However, we sincerely believe the best interest of the public will be served by this action.

In support of this request, we submit the following observations:

1 -- Signs are an extension of commerce into the residential zones contrary to the intent ...


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