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EASTERN BERGEN CTY. BD. OF REALTORS, INC. v. BOROU

June 22, 1989

THE EASTERN BERGEN COUNTY BOARD OF REALTORS, INC., et al., Plaintiffs,
v.
BOROUGH OF FORT LEE, et al., Defendants



The opinion of the court was delivered by: WOLIN

 In this action for declaratory relief, plaintiffs move for summary judgment declaring Sections 20-2.3:51(o) and 20-2.3:52(a) and Ordinance No. 87-4, supplementing Chapter 20-2.3:54, of the Fort Lee Zoning Ordinance unconstitutional under the First, Fifth, Ninth and Fourteenth Amendments of the United States Constitution and for a preliminary and permanent injunction against the enforcement of the Zoning Ordinance. The Court finds that Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance, which effectively prohibited the use of all advertising signs pertaining to the sale or rental of any property in the Borough, violated the First Amendment to the United States Constitution when applied to real estate advertising signs and that all outstanding complaints issued by the defendants charging the plaintiffs with violations of this Section are unenforceable. However, the Court finds the newly enacted Ordinance No. 87-4 constitutional and enforceable.

 I. BACKGROUND

 Defendant, the Borough of Fort Lee, New Jersey, enacted the Zoning Ordinance of 1981, as amended through November 12, 1985. Included in the Zoning Ordinance are Section 20-2.3:51(O), *fn1" which defines a sandwich sign, and Section 20-2.3:52(a), *fn2" which prohibits certain signs within the Borough.

 On or about August 18, 1986, defendant John E. Collazuol, construction official and zoning officer of Fort Lee, sent written notice to plaintiff Terrace Picone Lee, Realtors ("Terrace Picone Lee") directing plaintiff to remove its "For Sale" sign located on property in the Borough within five days. Plaintiff failed to remove the sign and subsequently, on October 16, 1986, was served with a summons and complaint signed by defendant Kathleen Patrick, the Deputy Court Clerk of the Borough of Fort Lee, charging plaintiff with a violation of the Fort Lee Zoning Ordinance, Sections 20-2.3:51(o) and 20-2.3:52(a).

 The following day, plaintiff Terrace Picone Lee was served with another summons and complaint charging a violation of the same sections of the Fort Lee Zoning Ordinance at another location.

 On or about October 23, 1986, plaintiff Century 21-Turi Realty, Inc. ("Turi Realty") also received a summons and complaint charging violation of the same sections of the Fort Lee Zoning Ordinance for failure to remove a free-standing advertising sign located on property within the Borough.

 Counsel for plaintiffs Terrace Picone Lee, Turi Realty and The Eastern Bergen County Board of Realtors, Inc., a realtor association to which Terrace Picone Lee and Turi Realty belong, requested that the defendants dismiss these complaints, but the Borough of Fort Lee refused. *fn3"

 Plaintiffs then filed a complaint in this Court on January 5, 1987, challenging the constitutionality of Sections 20-2.3:51(o) and 20-2.3:52(a) of the Fort Lee Zoning Ordinance, seeking a declaratory judgment proclaiming the Sections unconstitutional and a permanent injunction against the enforcement of the Ordinance. Subsequent to the filing of the complaint, defendant Borough of Fort Lee amended the Zoning Ordinance by passing Ordinance No. 87-4 supplementing Chapter 20-2.3:54 of the Zoning Ordinance. *fn4"

 On January 31, 1989, plaintiffs filed a supplemental pleading as an amendment to the complaint alleging that Ordinance No. 87-4, regulating the size, height and location of real estate "For Sale" and "For Rent" signs, suffers from the same Constitutional defects as Sections 20-2.3:51(o) and 20-2.3:52 (a) of the Zoning Ordinance and therefore is unconstitutional and invalid. Therefore, plaintiffs also seek judgment declaring Ordinance No. 87-4 of the Fort Lee Zoning Ordinance unconstitutional and seek a preliminary and permanent injunction against its enforceability.

 II. DISCUSSION

 A. The Constitutionality of Sections 20-2.3:51(o) and 20-2.3:52(a) of the Fort Lee Zoning Ordinance

 Determination of the constitutionality of Section 20-2.3:52(a) *fn5" as it applies to "For Sale" signs requires application of relatively settled constitutional principles. Plaintiffs argue that this section violates the First Amendment of the United States Constitution, denies due process and equal protection, and violates the right to freely acquire, own and alienate property by banning business and advertising signs in the residential zones of the Borough of Fort Lee. Defendants contend that this claim is moot because of Ordinance No. ...


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