its content. Because the ordinance did not prohibit all lawn signs or only lawn signs of a specific size or shape, the Court concluded that the ban on real estate advertising signs was content based. Linmark, 431 U.S. at 93-94, 97 S. Ct. at 1618-19.
Finally, the Court determined that the ordinance did not promote an important governmental objective. The Court reasoned that the ban on "For Sale" signs was not necessary to achieve the Township's asserted goal of promoting integrated housing. Thus, the court concluded that because the ordinance restricted the free flow of vital commercial information without serving a significant governmental interest, the ordinance was unconstitutional. Linmark, 431 U.S. at 96-97, 97 S. Ct. at 1620-21.
In Bloomfield Bd. of Realtors v. Township of Bloomfield, No. 86-1515 (D.N.J. July 28, 1986), this Court, per Judge Ackerman, struck down an ordinance prohibiting real estate advertising signs in residential zones as a violation of the First Amendment. Applying the reasoning employed by the Supreme Court in Linmark, the Court determined that the Bloomfield ordinance failed to meet the three requirements set forth in Virginia Pharmacy Bd. and, therefore, was unconstitutional. Bloomfield Bd. of Realtors, slip op. at 5.
Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance is unconstitutional as applied to real estate advertising signs for similar reasons. This section prohibits only certain types of signs in the Borough. Institutional signs, occupancy signs, professional signs and vacancy signs are not banned by the ordinance. Thus, this section is content-based and fails to meet the first requirement of Virginia Pharmacy Bd.
In addition, although methods of advertisement other than the use of "For Sale" signs are available to the plaintiffs, the cost and effectiveness of these methods do not render them acceptable or practical alternatives. Bloomfield Bd. of Realtors, slip op. at 5.
Finally, the defendants have not offered any governmental interests that are served by the enforcement of Section 20-2.3:52(a). Because the Borough may not "completely suppress the dissemination of concededly truthful information about an entirely lawful activity," Virginia Pharmacy Bd., 425 U.S. at 773, 96 S. Ct. at 1831, without having a legitimate governmental objective realized through a valid time, place or manner regulation, Bloomfield Bd. of Realtors, slip op. at 8, Section 20-2.3:52(a) is unconstitutional as applied to real estate advertising signs and any outstanding complaints issued under that ordinance are unenforceable.
B. The Constitutionality of the Supplementing Ordinance
In plaintiffs' amended complaint, they contend that the ordinance supplementing Chapter 20-2.3:54 of the Fort Lee Zoning Ordinance is also unconstitutional. However, the Court finds Ordinance No. 87-4, which allows "For Sale" and "For Rent" signs conforming to certain size, height and location restrictions, meets the criteria presented in both Virginia Pharmacy Bd., and Clark, 468 U.S. at 295-96, 104 S. Ct. at 3069-70. See also South Suburban Housing Center v. Greater South Suburban Bd. of Realtors, et al., 713 F. Supp. 1068 (N.D. Ill. 1988) (LEXIS, Genfed library, Dist. file) (holding that ordinances that did not prohibit but merely regulated the size, placement and manner of "For Sale" signs did not violate the standard of Clark or, therefore, the First Amendment).
Because Ordinance No. 87-4 regulates only the form and manner of speech, it is not content-based. Additionally, this amendment to the Zoning Ordinance leaves open a satisfactory alternative of communication for realtors who may have wished to advertise on signs not conforming to the ordinance. Ordinance No. 87-4 preserves the freedom to advertise by permitting the use of "For Sale" and "For Rent" signs that meet its height, size and location requirements.
The restrictions provided in Ordinance No. 87-4 limit the signs to standard industry size so as not to block vision or distract a driver's attention from the road. The provision regulating the location of the signs serves the purpose of promoting traffic safety and is closely tailored to serve that purpose. Clearly, the restrictions set forth in this amendment help further the significant governmental interest of protecting pedestrians and drivers using the Borough's roadways. Cf. Dills v. City of Marietta, 674 F.2d 1377 (11th Cir. 1982) (holding that an ordinance restricting the use of portable display signs violated the First Amendment because the time restriction on the use of the signs did not directly further the asserted governmental interest in traffic safety). Because Ordinance No. 87-4 bears a significant relationship to the public health, safety and general welfare, it is a reasonable and proper exercise of the Borough's police power. See Sign Supplies of Texas v. McConn, 517 F. Supp. 778 (S.D. Tex. 1980) (holding that an ordinance regulating the size, height, location and construction of signs was a valid exercise of the city's police power). Additionally, since the effect of Ordinance No. 87-4 is not to restrict the free flow of vital commercial information, Linmark, 431 U.S. at 95, 97 S. Ct. at 1619, it is constitutional and enforceable.
Therefore, after examining the sections of the amended ordinance in light of the criteria for determining the constitutionality of a regulation of commercial speech employed by the Supreme Court in Virginia Pharmacy Bd., the Court finds Ordinance No. 87-4 of the Fort Lee Zoning Ordinance constitutional.
For the reasons set forth above, the Court finds that Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance is unconstitutional as applied to real estate advertising signs and therefore grants plaintiffs' motion for summary judgment with respect to this section. The Court further holds that any outstanding complaints charging plaintiffs with a violation of this section are void and unenforceable.
Finally, the Court further finds that Section 20-2.3:51(o) and Ordinance No. 87-4 supplementing Chapter 20-2.3:54 of the Fort Lee Zoning Ordinance are constitutional and therefore denies plaintiffs' motion for summary judgment with respect to these sections.
An appropriate order is attached.
Dated: JUNE 22, 1989
This matter having been opened to the Court on January 5, 1986 by Paul W. Ross, Esq., attorney for plaintiffs, The Eastern Bergen County Board of Realtors, Inc., et al., in a declaratory judgment action seeking judgment declaring Sections 20-2.3:52(a) and 20-2.3:51(o) and Ordinance No. 87-4 of the Fort Lee Zoning Ordinance unconstitutional and for injunctive relief against the enforcement of the Zoning Ordinance, and the Court having considered plaintiff's motion for summary judgment and the papers and arguments of counsel, and it appearing to this Court that plaintiffs are entitled to partial summary judgment,
It is on this 22TH day of June, 1989,
ORDERED that Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance be declared unconstitutional as applied to real estate advertising signs; and it is further
ORDERED that any outstanding complaints charging plaintiffs with a violation of Section 20-2.3:52(a) are void and unenforceable; and it is further
ORDERED that Ordinance No. 87-4 supplementing Chapter 20-2.3:54 of the Fort Lee Zoning Ordinance is declared to be constitutional and enforceable; and it is further
ORDERED that final judgment be entered, in accordance with this Order, disposing of the entire case.