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GANNETT SATELLITE INFORMATION NETWORK v. TOWNSHIP

April 4, 1989

GANNETT SATELLITE INFORMATION NETWORK, INC., Plaintiff,
v.
THE TOWNSHIP OF PENNSAUKEN, ROBERT SINGER, MAYOR, and THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PENNSAUKEN, Defendants



The opinion of the court was delivered by: GERRY

 I. FACTS

 This case concerns the extent to which a municipality can control the placement of newspaper vending machines without infringing the First Amendment. Our jurisdiction in this matter is founded upon 28 U.S.C. §§ 1343 and 1331.

 On February 24, 1989, plaintiff, Gannett Satellite Information Network, Inc., brought an action seeking a temporary restraining order, preliminary injunction and permanent injunction against the enforcement of Pennsauken Township Ordinance No. 88-34. Briefs by both sides were submitted, and a hearing pursuant to F.R.Civ.P. 65(b) was held on March 2, 1989. Both sides have since filed supplemental briefs.

 The ordinance at issue treats with the placement of newspaper vending machines, or "honor boxes," in the Westfield Avenue Business District in Pennsauken. In Pennsauken, the Westfield Avenue Business District runs north from the intersection of Westfield Avenue and 42nd Street, which is Pennsauken's border with the City of Camden, for 33 blocks to the intersection of Westfield Avenue and Cove Road. The ordinance was enacted on September 14, 1988, and went into effect on October 14, 1988. It excludes all honor boxes *fn1" from Westfield Avenue but allows them to be placed "no less than thirty (30) feet from . . . Westfield Avenue and side street intersection(s)." Ordinance 88-34, § IV. "For purposes of measurement," the ordinance continues, "the thirty (30) feet distance shall begin from the intersectional curb line to the point where the curb on Westfield Avenue turns into the curb line on the adjoining side street." Id. The ordinance expressly allows for honor boxes "in any other location on any other street throughout the Township of Pennsauken." Id. The ordinance further provides that all honor boxes "shall be secured on a level surface such as concrete, or a similar surface. No 'honor boxes' . . . shall be chained to any telephone pole, street sign, bus stop sign, or any other similar roadway sign or directional sign within the boundaries of Pennsauken." Ordinance 88-34, § V. Violation of the ordinance is punishable by a $ 500 fine. Ordinance 88-34, § VII.

 A statement of legislative intent was included in the ordinance. The intent was twofold. First, Pennsauken

 
is in the midst of a revitalization (and) rehabilitation of the business district commonly known as "Westfield Avenue Business District." Numerous efforts have been made to aesthetically improve and beautify certain portions of the Westfield Avenue Business District. Accordingly, it is the legislative intent of the Township Committee of the Township of Pennsauken to maintain the developed character of Pennsauken Township and to maintain and enhance the aesthetic quality of the business district.

 Ordinance 88-34, § II(a). Therefore, honor boxes have been banned from the sidewalks of Westfield Avenue because they "are unsightly and unaesthetic and detract from the aesthetic quality of the business district." Id.

 The second reason for the ban is that the revitalization of Westfield Avenue is designed

 
to attract walking pedestrian customers in and around the Westfield Avenue Business District. It is further determined that motor vehicular stopping to obtain newspapers from "honor boxes" would create a traffic hazard and would be detrimental to the health, safety and welfare of the community of the Township of Pennsauken at large.

 Ordinance 88-34, § II(b).

 Prior to the passage of this ordinance, Pennsauken permitted honor boxes to be placed on Westfield Avenue subject only to the regulations set forth in N.J.A.C. 16:41B-1-1 et seq., promulgated by the New Jersey Department of Transportation.

 Plaintiff, a Delaware corporation, owns both The Courier-Post and USA Today newspapers. The Courier-Post publishes a daily and Sunday newspaper in Southern New Jersey. USA Today is a nationwide newspaper published Monday through Friday. Both newspapers are distributed in the Township of Pennsauken by means of home delivery, private retail outlets and honor boxes. Specifically, there is at least one convenience store located in the Westfield Avenue Business District in which newspapers may be purchased 24 hours a day. Prior to the promulgation of the ordinance, the Courier-Post had four honor boxes on Westfield Avenue in Pennsauken at the intersections of Gross Avenue, Lexington Avenue, 49th Street and 48th Street. These four boxes distributed a combined average of 90 daily and 25 Sunday papers. (Jackson Aff. at para. 4.) USA Today had two honor boxes on Westfield Avenue in Pennsauken, which were located at the intersection of Gross Avenue and in front of the post office. These distributed an average of seven papers each day. The USA Today honor boxes are washed and waxed at the beginning of the winter and summer, and refurbished on a routine basis. (Narewski Aff. at para. 4.) All unprotected boxes which are exposed to the elements are replaced annually. The Courier-Post honor boxes are inspected regularly by the employee who delivers newspapers to the boxes and are brought in for replacement or repair by an employee whose sole responsibility is to repair and maintain honor boxes. (Jackson Aff. at para. 11.)

 Shortly after the passage of the ordinance, Gannett removed all of its honor boxes from Westfield Avenue, rather than move them 30 feet in order to comply with the law. Although both the Courier-Post and USA Today have claimed to be losing revenue in the six months since the ordinance took effect (Jackson Aff. at para. 12; Narewski Aff. at para.), no figures have been produced. The removal of all of the Gannett honor boxes has precluded any determination of what effect, if any, the 30-foot asportation of honor boxes would have had on the sale of papers.

 At the March 2 hearing, both sides offered arguments concerning the degree to which the visibility of honor boxes is impaired by the ordinance. Pennsauken introduced photographs of Philadelphia Inquirer honor boxes, which it stated were in compliance with the ordinance. Although not located on the curb of Westfield Avenue, they were still apparently easily within view of passing motorists. Gannett challenged this contention and argued that the boxes were in fact more difficult to see if approached from a different angle. Moreover, Gannett noted that because the aim of the ordinance was to improve the appearance of Westfield Avenue by removing the unsightly honor boxes, the effect of the ordinance could only be to diminish the visibility of honor boxes to a motorist on Westfield Avenue. Whether or not honor boxes are less visible to pedestrians was not treated; nor was there any showing of whether newspapers vended in honor boxes are purchased primarily by pedestrians or motorists. Counsel for Pennsauken pointed out that the honor boxes in question are approximately three feet in height, and therefore, while located on the curb of Westfield Avenue, could be completely obscured to passing motorists by a parked car. In short, the evidence as to the diminishment of visibility of honor boxes is inconclusive. Still, because a major purpose of the ordinance was to improve the appearance of Westfield Avenue, it is reasonable to suppose that the ordinance will effect the visibility, in however small a degree, of the "unsightly" honor boxes. However, as has been noted, the extent to which this has discouraged or diminished sales of Gannett newspapers remains unknown.

 It was also the testimony of Kenneth W. Carruth, Administrator of the Township of Pennsauken, that the average depth of business lots along Westfield Avenue was 100 feet, and that the 30 foot asportation required by the ordinance, therefore, did not, strictly speaking, exclude honor boxes from the business district at all.

 The bulk of the argument and evidence adduced by the Township of Pennsauken has been directed to attacking the assertion made in paragraph 17 of Gannett's complaint that

 
the buildings along Westfield Avenue are circa 1950's and, while not in a deteriorated condition, are not particularly attractive or appealing.

 Pennsauken has introduced extensive proofs, including photographs and video tape, to show that Westfield Avenue has been in the process of refurbishment for the past two years, and this action has been part of a deliberately laid plan to resurrect a decaying urban district. Pennsauken further argues that the aesthetic interest it has evinced and continues to show justifies the restrictions placed upon Gannett.

 Westfield Avenue, from the border with the City of Camden at 42nd Street to the intersection at Cove Road, had long been the center of business and retail activity in Pennsauken but had deteriorated significantly in the past 20 years. In early 1987, according to the Mayor of Pennsauken, "there were fifty percent less open commercial business establishments on Westfield Avenue then [sic] there were 10 years prior to that time." (Singer Aff. at para. 8.) This was caused, at least in part, by the urban blight that has increasingly permeated the City of Camden in the past 20 years. In order to remedy the decay before it became irreversible, the Township of Pennsauken has taken several steps.

 First, the entire Westfield Avenue Business District was studied by the engineering firm of Taylor, Weissman, Taylor, together with Richard D. Huder, A.I.A., a New Jersey licensed architect. (Singer Aff. at para. 13; Carruth Aff. at para. 15.) Excerpts from the report issued by this group have been provided to the court. (Carruth Aff., Exh. B.) Specific recommendations included the establishment of a "Design District"; that is, a holistic approach to rejuvenating the appearance of Westfield Avenue in order to "develop an harmonic streetscape." (Carruth Aff., Exh. B, p. 39.) Other recommendations were the adoption of a detailed sign ordinance and certain zoning changes. (Carruth Aff., Exh. B, pp. 40-53.)

 Second, the Township began to "make low or no-interest loans to business owners for the purpose of upgrading the facades and otherwise making the business atmosphere more attractive." (Singer Aff. at para. 15.)

 Third, the Township, financed with aid from the state and federal government, *fn2" embarked upon a systematic improvement of the appearance of Westfield Avenue. This project, begun in 1987 and scheduled for completion in 1991, is two-thirds finished now. Red brick tree belts have been laid along much of the length of Westfield Avenue and trees planted. "Old-fashioned" style street lights have been installed, as well as large concrete free-standing trash receptacles. (Carruth Aff. at paras. 20, 21.) Taller telephone poles are being put in place so that less poles will be required. A street sweeper has been employed to clean Westfield Avenue from 42nd Street to Cove Road every weekday. A Township code inspector has also been detailed to Westfield Avenue to ensure compliance with the building code. Defendants supplied this court with a videotape of the scene as one drives from Camden into Pennsauken, and the measures described can fairly be said to have gone a long way towards fulfilling the recommendation that within the area bordering on the City of Camden, "a strong physical statement must be made identifying the fact that this area is part of Pennsauken Township." (Carruth Aff., Exh. B, p. 21.) As the Pennsauken Township Administrator stated:

 
The Township Administration has taken a very realistic view of the fact that the problems in the City of Camden are immense and are not likely to be solved very quickly. They are also mindful of the ease with which urban blight can creep across a municipal boundary line. For these reasons, the Township has taken such extraordinary measures to revitalize its business district.

 (Carruth Aff. at para. 16.)

 Pennsauken Township has also provided affidavit and photographic evidence of the particular improvements that have occurred along Westfield Avenue. Township Administrator Carruth testified at the March 2 hearing and described in detail most of the photographs and the improvements that had occurred. We will not reiterate all of the improvements along Westfield Avenue in detail, but we list some:

 
1) The Township has razed the decrepit buildings on Westfield Avenue between 46th and 47th Streets. On this site, an 8-story municipal complex and senior citizen housing facility ...

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