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Philadelphia Outdoor v. New Jersey Expressway Authority

Decided: November 23, 1987.

PHILADELPHIA OUTDOOR, PETITIONER-RESPONDENT,
v.
NEW JERSEY EXPRESSWAY AUTHORITY, RESPONDENT-APPELLANT, AND NEW JERSEY DEPARTMENT OF TRANSPORTATION, OUTDOOR ADVERTISING SECTION, RESPONDENT-RESPONDENT



On appeal from a Final Administrative Decision of the Commissioner of Transportation.

J. H. Coleman, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

[221 NJSuper Page 210] This is an appeal by the New Jersey Expressway Authority (Authority) from a final decision of the Commissioner of the New Jersey Department of Transportation (DOT) granting an outdoor advertising permit to respondent Philadelphia Outdoor (Philadelphia). N.J.S.A. 54:40-60(1) and (2) prohibit the issuance of an outdoor advertising permit where the erection of the sign would ". . . injuriously affect any public interest . . ." or ". . . endanger the interests of public safety, health or morals[.]" In granting the permit, the Commissioner found that the Authority failed to demonstrate that the proposed sign would "create such a unique set of circumstances that the travelling public would be endangered." She also concluded

that the Authority failed to prove ". . . a correlation between frequency . . . of accidents and the presence of outdoor advertising. . . ." We now reverse. We conclude that the Commissioner applied an incorrect standard and that her decision is not supported by sufficient credible evidence on the record. We also conclude that N.J.S.A. 54:40-60(1) and (2) and its attendant regulation are not violative of the First Amendment's guarantee of free expression.

Philadelphia filed an application for an outdoor advertising permit with the Outdoor Advertising Section of the DOT. The billboard had dimensions of 16' X 60' and is to be placed on property adjacent to the right-of-way of the Atlantic City Expressway. The proposed double-faced, illuminated sign is to be located approximately 400' west of an overpass (the Fire Road overpass) and 400' east of the exit ramp for exit 7N by which traffic exits the expressway to travel north on the Garden State Parkway. The location of the proposed sign is adjacent to the deceleration lane which leads to the 7N off-ramp. The Authority objected to the billboard application on the grounds of traffic safety and aesthetics. After an informal hearing and a site inspection, the DOT's project engineer of maintenance, Robert Macai, denied the application. Philadelphia appealed.

At the hearing held before the administrative law judge, Macai, having over 30 years of experience involving highway safety, testified that he made two site inspections and drove by the proposed site six times. Macai noted that vehicles frequently exceeded the 55 m.p.h. speed limit and that the exit ramp at exit 7N is not visible to west-bound traffic until the driver passes under the Fire Road overpass. He also observed vehicles frequently crossing over from the fast lane to use the exit ramp and in many instances passing the exit ramp, and then backing-up to the ramp area to exit at 7N. It was Macai's view that locating a sign at the location would worsen an already hazardous situation by distracting the attention of drivers. The ALJ therefore denied Philadelphia's application.

Albert Effinger, Superintendent of Toll Repairs for the Authority, also testified concerning the heavy traffic, the erratic maneuvers approaching exit 7N and his observation of vehicles backing-up after missing the exit ramp. He was aware of one fatal accident that occurred in the 1970's as a result of a driver backing-up after missing the exit. Anthony Marino, Manager of Finance Administration for the Authority, testified that the annual toll traffic at the Pleasantville toll plaza, two miles east of exit 7N, was 19,505,641 vehicles during the year 1984. He described the dramatic increase in traffic since the advent of casino gambling in 1978, and the heavy traffic volume during commuter hours and spring and summer months.

Dr. Ned Walton, a consulting engineer for the Authority, testified that 41,000 vehicles per day use the four-lane expressway at or near exit 7N. Peak hour traffic is approximately 18% of the total daily traffic. This equates to 2,000 vehicles per lane, per hour, during peak-hour periods which is the absolute maximum capacity of any traffic lane. He noted that traffic information indicated that roughly one-third of all west-bound traffic exits at 7N, and that the proposed sign would become visible only when a driver reached the Fire Road overpass. With regard to exit 7N, the exit ramp becomes visible a few hundred feet before the exit ramp itself. It was his opinion that reading an outdoor advertising sign would take from 1.5 seconds or longer, depending on the nature of the sign and other factors. He noted that once through the overpass, there were additional official signs and lane designations which would compete with the proposed outdoor advertising sign for the driver's attention. He presented the following opinion:

We are in a location of high workload during many times of the year. We are in an area where the driver has the responsibility to maintain positional control of his automobile and certainly react to the situation of the demands that are placed upon him. We have an area where judgments must be made very timely in order for the driver to perceive, to react to the official communications that are there and to other traffic, to make the 7 north maneuver in the westbound direction. We have a situation where there are good indications that there is erratic behavior indicating load shedding problems on the part of

drivers, occasions that drivers are missing, in effect, the same time that they should be responding to make that 7 north maneuver.

That, along with traffic volumes and speed of flow that we have and the traffic control that is necessary to let the interchanging movement take place, I believe there is inadequate time, free time available to the driving public to attend to extraneous information at a point in time, any extraneous information at that point in time, in my opinion, would be distractive, would ...


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