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CITIZENS UNITED FOR FREE SPEECH II v. LONG BEACH T

September 25, 1992

CITIZENS UNITED FOR FREE SPEECH II and CAROL A. SURGENS and HARRY L. BROWN, JR., Plaintiffs,
v.
LONG BEACH TOWNSHIP BOARD OF COMMISSIONERS and SEAN DEVITT, Defendants.



The opinion of the court was delivered by: MARY LITTLE PARELL

 PROCEDURAL BACKGROUND

 This action was initiated by a complaint filed on June 21, 1991 seeking a declaratory judgment that the Ordinance is unconstitutional, and seeking injunctive relief from its actual or prospective enforcement. Plaintiffs are Citizens United for Free Speech II ("CUFFS II"), a voluntary unincorporated association of individuals asserting a personal interest in the matter; Carol A. Surgens, a part-time resident of the Township of Long Beach ("the Township"); and Harry L. Brown, Jr., a licensed realtor in the Township. Defendants are the Township Board of Commissioners and Sean A. Devitt, the Township Zoning Officer.

 Plaintiffs sought a temporary restraining order ex parte on the date the complaint was filed. This court (Honorable John C. Lifland, U.S.D.J.) denied the application initially on that date. The court then conducted a telephone conference with counsel for both parties on June 26, 1991, and after reviewing the pleadings, briefs and certifications filed at that time, on August 27, 1991 the court issued an order denying the requested temporary restraint and directing that a preliminary injunction hearing be conducted within thirty days. The court's denial of preliminary relief, as stated in the order, was based upon the representations of defendants' counsel that there were not currently pending, and there would not in the future be, any enforcement proceedings against plaintiffs under the Ordinance while the application for preliminary injunction was pending before this court.

 The injunctive matter was not immediately scheduled for hearing, apparently because the parties were awaiting a determination by the Superior Court of New Jersey as to whether the subject matter of this action might be barred by having been raised in an earlier-filed state court action which had been settled. *fn1" In May, 1992, counsel for plaintiffs contacted this court and renewed their request for a hearing on the application for preliminary injunction, explaining that the state court had recently ruled that the Ordinance in question here, Ordinance 89-43C enacted September 1, 1991, was not included in the prior settlement. The parties then conferred with the court; stipulated that the injunctive application would be narrowed to address only the portion of the Ordinance dealing with real estate signs ("Subsection Q"); submitted supplemental briefs; conducted expedited limited discovery; and presented oral testimony and written exhibits at the hearing on July 1, 1992. Written summations were subsequently submitted.

 STATEMENT OF FACTS

 Ordinance 89-43C is a plenary regulation of all use of signs throughout the Township. The overall scheme of the Ordinance creates three categories of signs: (1) those for which a permit must be issued by the Zoning Officer, Ordinance § 22-3.1; (2) "exempt signs" that are described in detail and may be used without obtaining a permit, Ordinance § 22-6.2; and (3) "prohibited signs" that are not allowed under any circumstances, Ordinance § 22-7.

 For purposes of the present application for a preliminary injunction, the parties have agreed to address only one limited portion of the Ordinance, Subsection Q of Section 22-6.2. Subsection Q regulates the use of real-estate signs advertising properties "for sale" or "for rent"; it specifies the precise circumstances under which such signs may be used as "exempt signs", i.e., without the prior approval of the Zoning Officer. Subsection Q, in its entirety, reads as follows:

 (q) Real estate signs. One real estate sign advertising the property . . . on which it is located, either "for sale" or "for rent" or one sign advertising the property "for sale or for rent" (single or double face) on any lot or parcel, provided such sign is located entirely within the property to which the sign applies, is not illuminated, does not exceed an area of six square feet with a maximum dimension of four feet, and is removed within fifteen (15) days after the sale has been consummated. For rent signs are expressly prohibited during the months of June, July, August and September, provided, HOWEVER, for rent signs may be displayed at any time, including the months of June, July, August and September, if they are located and placed in a window of the premises advertised for rent. One additional sign, as described above, is permitted where a parcel has in excess of three hundred feet of frontage or fronts on two streets.

 The parties do not disagree over the meaning, application, or construction of the Ordinance or Subsection Q thereof; their points of difference center on whether the Ordinance as written, and Subsection Q in particular, meet the established legal standards governing permissible government regulation of speech or expression. To assist the court in making that determination, the parties presented testimony and exhibits at the hearing conducted on July 1, 1992. The court did not note any significant contradictions or differences in the facts as presented by the respective parties. Nonetheless, the following summary of the parties' presentations will serve as necessary background to the legal analysis of the constitutionality of Subsection Q.

 I. EVIDENCE PRESENTED AT THE HEARING

 The witnesses who testified on behalf of plaintiffs were the two named individual plaintiffs, Carol A. Surgens and Harry L. Brown, Jr. Testimony on behalf of defendants was provided by James J. Mancini, the Mayor of defendant Long Beach Township; by defendant Sean A. Devitt, the Township Zoning Officer; and by Jean DiPaola, who is Executive Director of the Ocean County Chamber of Commerce.

 A. Testimony of Plaintiff Carol A. Surgens

 Ms. Surgens testified that she resides in Somerville, New Jersey, and also, since at least 1981, she spends significant time in Long Beach Township at 2A West McKinley Avenue, Holgate, New Jersey, a property owned by Gilbert Farr ("the Farr property"). The Township is predominantly a summer beach resort, and the Farr property is often rented out. The principal rental periods for the Farr property are June to September, with additional weeks and weekends rented off-season. Since 1981, Ms. Surgens has been assisting in renting the Farr property in various ways, including answering telephone inquiries from people responding to the "for rent" signs displayed on the property, and showing the property to prospective renters. She also executes leases as the agent for Mr. Farr.

 Ms. Surgens explained several reasons why she and the owner would not want to display rental signs in the window of the Farr property: (1) the design of the windows would not easily accommodate signs; (2) the location of the windows on the property is 12 to 20 feet farther back than the rail, and less visible from the street; (3) the size of the sign which is currently on the railing would not fit in the windows; (4) the house has an ocean view which would be partially obstructed by a window sign; and (5) she would find the appearance of a window sign aesthetically displeasing.

 Ms. Surgens compared the use of "for rent" signs on the Farr property and other modes of advertising the property for rent. She said that signs have been effective; e.g., calls in response to the signs have enabled her to make a list of prospects and when they are interested in renting, and have allowed her to develop a steady tenant base, including repeaters. The use of signs, she stated, has helped to supplement the rentals received through real estate agents and in some periods it provided tenants when the realtors did not. Ms. Surgens testified that signs are more cost-effective than newspaper ads or realtor listings. She estimated that on-site signs have generated more inquiries during the summer months than in off-season months. She recalled that there was one year when there were no rentals except by means of signs. She asserted that in her experience with the Farr property, if there are no signs on the premises during the summer, it is highly unlikely that the property will be rented in that period.

 At various times, Ms. Surgens has also been a tenant in Long Beach Township. She has primarily relied on signs on the properties in locating and obtaining those rentals, and seeks to do so currently and in the future. She feels that the requirement that "for rent" signs be posted only in windows during the summer season has the effect of reducing the use of such signs, and thus prevents her from being adequately informed of the availability of rental properties.

 Ms. Surgens also testified concerning the formation and membership of CUFFS II, the plaintiff organization. CUFFS II was formed in June 1991, after Mr. Farr had received a Notice of Violation from the Township because of the "for rent" signs posted on his property. At that time several community members joined with Mr. Farr to seek relief from the Ordinance's regulation of real estate signs; the group subsequently became concerned about other sections of the Ordinance as well. Ms. Surgens produced a list of 29 individuals and companies who are current members of CUFFS II.

 She described some practical problems in requiring "for rent" signs to be in the windows of properties, in addition to those described earlier concerning the Farr property. Certain neighbors of the Farr property have a house with no windows visible from the street larger than approximately six inches by twelve inches. Also, one member of CUFFS II owns property in the Loveladies section of the Township, where many homes are not visible from any public street.

 B. Testimony of Plaintiff Harry L. Brown

 Mr. Brown testified that he is a licensed real estate broker and has been an owner of Realty World, a sales and rental agency in the Township, since approximately 1985. Mr. Brown stated that in his experience, rentals in the Township occur in a "rolling time frame." He said that some properties, particularly ocean front listings, are usually rented for the entire season by May 1; but generally, many people also call him seeking near-term rentals during the summer months. At the time of the hearing (July 1) he had a significant number of listed vacancies for July and August, and also had some rentals available for September and October. In the prior year his seasonal rentals were mostly filled by July.

 Mr. Brown stated that he customarily advertises rentals by newspaper ads (in both on- and off-island publications), and by yard signs. Prior to the enactment of the Ordinance, his agency used on-site signs during the summer season to advertise available rentals. Mr. Brown compared the effectiveness of newspaper ads and on-premises signs, saying that in using both methods regularly, his experience has been that more inquiries result from on-site signs than from any other source. He also stated that in his experience his agency does not get much business from the published ads.

 Mr. Brown testified that on June 1, 1992, in compliance with the Ordinance, he removed all in-ground "for rent" signs from his listings. He did not place any "for rent" signs in the windows or ask his clients for permission to do so, for several reasons based on his experience as a broker, including: (1) the realtor signs used in yards are not appropriate for windows, given their size and weight; (2) windows come in many different sizes and locations; (3) renters have objected to obstructions blocking views from windows; and (4) he believes that signs in windows would not be as effective because they are not as observable by the public. Mr. Brown believes that the seasonal restriction on "for rent" signs has "armed his business economically.

 C. Testimony of James J. Mancini

 Mr. Mancini has been the Mayor of Long Beach Township since 1964. He explained that as mayor, he is aware of the state of the rental market in the Township. He testified that about 60 to 70 percent of the properties in the Township are used as rentals; approximately 90% of the rentals are listed by realtors. Mr. Mancini said that the busiest season for the leasing of summer rentals is from the beginning of the year to Memorial Day, with particularly heavy activity during the George Washington's Birthday weekend in February. He acknowledged that during the summer months, there are still some rentals available for the then-current season.

 He testified that he was familiar with the origins of the Ordinance; the public had expressed indignation about the proliferation of real estate signs, and the general feeling in the community was that the over-use of the signs made the Township undesirable. *fn2" He stated that the town was most distressed with "for rent" signs being left on the properties year-round, even when the properties were fully rented, more as advertising for realtors than as notice of availability. Mr. Mancini also testified from his own observation that there were streets in the ...


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