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Interstate Outdoor Advertising v. Zoning Board of the Township of Cherry Hill

December 7, 2009

INTERSTATE OUTDOOR ADVERTISING PLAINTIFF,
v.
ZONING BOARD OF THE TOWNSHIP OF CHERRY HILL AND THE TOWNSHIP OF CHERRY HILL , DEFENDANTS.



The opinion of the court was delivered by: Rodriguez, Senior District Judge

FOR PUBLICATION

ORDER & OPINION

Before the court is Defendants' motion for partial summary judgment seeking dismissal of Plaintiff's claim that Cherry Hill's Zoning Ordinance prohibiting the erection of outdoor advertising displays is unconstitutional on First Amendment grounds. However, before the court will evaluate the merits of that motion, it agrees that the record requires further development. Plaintiff's request for additional discovery pursuant to Federal Rule of Civil Procedure 56(f) is granted. Accordingly, the motion for partial summary judgment [Doc. No. 11] is administratively terminated pending the completion of additional discovery.

I. Background*fn1

Interstate Outdoor Advertising ("Plaintiff" or "Interstate") is a Cherry Hill based company engaged in the business of erecting and leasing outdoor advertising structures in a variety of markets, including Cherry Hill, New Jersey. Interstate's billboards are made available for both commercial and non-commercial purposes. (Gerber Aff. at 3: ¶ 4.) In 2008, the Defendant Township adopted Ordinance 2008-6 to ban offsite advertising signs such as those erected and leased by Interstate. The Zoning ordinance provides an extensive list of purposes in support of the terms of the ban; however, the primary justifications for the ban are the promotion of traffic safety and aesthetic improvement. As amended, the Zoning Ordinance provides:

Section 511. PROHIBITED STRUCTURES AND USES. The below listed structures and uses are prohibited in any zone. . . .

5. Billboards and Off-site signs.

All uses not specifically permitted in this Ordinance are hereby prohibited. . . (Moore Aff., Ex. E)

In 2007 before Cherry Hill amended the zoning code, Interstate filed three applications to the Township Board of Adjustment proposing to erect four outdoor advertising signs in the Township's Restricted Industrial Zones along U.S. Interstate-295 (a major transportation corridor with three lanes of traffic in each direction).

(Jenkins Aff. at 17, Ex. E & F.) After a public hearing on each application, the Zoning Board denied Interstate's requests. (Moore Aff., Ex.s F, G, and H "Board Resolution Regarding Variance Application.")

Plaintiff challenges those denials and alleges that the Ordinance constitutes an impermissible restriction on the freedom of speech in violation of the First Amendment. In response to Defendants' motion seeking dismissal of that claim Plaintiff's primary argument is that the defendants have not shown that there is a connection between a complete ban of offsite advertising throughout Cherry Hill and the promotion of traffic safety and aesthetics. Plaintiff argues that its First Amendment claim should proceed because summary judgment would be premature in light of the undeveloped record in this case. Accordingly, Plaintiff states that it is entitled to additional discovery as permitted under Rule 56 (f).

II. Rule 56(f)

Rule 56 (f) provides that a nonmoving party may move for a continuance pending further discovery on the premise that discovery from Defendant could aid its response to the summary judgment motion. By its very nature, the summary judgment process presupposes the existence of an adequate record; therefore, the Supreme Court has explained that "[a]ny potential problem with . . . premature [summary judgment] motions can be adequately dealt with under Rule 56(f)." Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Rule 56(f) states:

If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:(1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or ...


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