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E&J Equities, LLC v. Board of Adjustment of Township of Franklin

Superior Court of New Jersey, Appellate Division

October 17, 2014

E& J EQUITIES, LLC, a New Jersey limited liability company, Plaintiff-Respondent,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, Defendant-Respondent, and TOWNSHIP OF FRANKLIN, Defendant-Appellant

Submitted: March 4, 2014.

Approved for Publication October 17, 2014.

Page 540

[Copyrighted Material Omitted]

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On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1526-10.

DeCotiis, FitzPatrick & Cole, LLP, attorneys for appellant ( Louis N. Rainone, of counsel; Jason D. Attwood and Victoria A. Flynn, on the briefs).

Francis P. Linnus Law Office, attorneys for respondent E& J Equities, LLC ( Mr. Linnus, of counsel; Benjamin T. Wetzel, on the brief).

Respondent Board of Adjustment of the Township of Franklin has not filed a brief.

Before Judges FISHER, ESPINOSA and KOBLITZ. The opinion of the court was delivered by ESPINOSA, J.A.D.

OPINION

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[437 N.J.Super. 495] ESPINOSA, J.A.D.

Concerned that inconsistencies in its regulation of billboards exposed it to possible legal liability, defendant Township of Franklin (the Township) began a two-year process to adopt a new ordinance. During that deliberative process, the Planning Board (the Board) considered whether to permit digital multiple message billboards, receiving information from plaintiff E& J Equities (E& J) and other sources. Concluding that a determination whether to permit a digital billboard was best made within the context of an application for a conditional variance, the Board proposed and the Township adopted Ordinance No. 3875-10 (the Ordinance), [437 N.J.Super. 496] which prohibited such billboards.[1] After E& J's application for a variance to erect an electronic billboard was denied, it commenced this

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litigation, challenging the constitutionality of the Ordinance and the denial of its application for a variance.

The trial court affirmed the denial of the variance, finding the Township's decision to deny E& J's application was not arbitrary, capricious or unreasonable. The court also rejected E& J's equal protection argument. But, relying upon language in Bell v. Township of Stafford, 110 N.J. 384, 541 A.2d 692 (1988), the trial court found the Ordinance's ban violated the First Amendment. The sole issue presented by the Township's appeal is whether the Ordinance's ban on digital billboards passes constitutional muster. For the reasons that follow, we conclude that it does.

I

" [T]he right to free speech is not absolute and is subject to reasonable limitations." Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 570-71, 993 A.2d 805 (2010). In Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the Supreme Court acknowledged the challenge of " applying the broad principles of the First Amendment to unique forums of expression," stating, " [e]ach method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method." Id. at 500-01, 101 S.Ct. at 2889, 69 L.Ed.2d at 810-11 (quoting Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513, 528 (1949) (Jackson, J., concurring)). Like the Court in Metromedia, " [w]e deal here with the law of billboards." Id. at 501, 101 S.Ct. at 2889, 69 L.Ed.2d at 811.

Signs " pose distinctive problems that are subject to municipalities' police powers." City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 [437 N.J.Super. 497] S.Ct. 2038, 2041, 129 L.Ed.2d 36, 42 (1994). " Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." Id. at 48, 114 S.Ct. at 2041, 129 L.Ed.2d at 42-43. Accordingly, billboards are the subject of federal, state and local regulation.

Consistent with the Supreme Court's observation regarding the nature of signs, both Congress[2] and our Legislature[3] have identified the promotion of safety on the highways and the preservation of natural beauty as interests to be served in their regulation of billboards.

All roadside signs in New Jersey are subject to conditions and restrictions established by N.J.S.A. 27:5-9. " Off-premise

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multiple message signs," such as the one E& J sought to erect, are subject to additional conditions. N.J.A.C. 16:41C-8.8(a)(1) requires an application and a permit specific to that use when the off-premise multiple message sign would be visible to a highway. The regulation [437 N.J.Super. 498] states that, provided the conditions enumerated in N.J.A.C. 16:41C-8.8(a) are met, the Department of Transportation (NJDOT) " shall grant permission" for the use. Because N.J.S.A. 27:5-9.1 provides that, after NJDOT issues the permit, any billboard " to be erected on or above any State right-of-way . . . shall be subject to local government zoning ordinances[,]" it is evident N.J.A.C. 16:41C-8.8(a) establishes threshold requirements that must be satisfied without limiting the authority of local government to further regulate billboards. We therefore turn to the Township's effort to do so.

II

In February 2008, the Board began the process of revamping the Township's regulation of billboards by authorizing the Zoning Officer to prepare a draft billboard ordinance. Over the following year, the drafting of the Ordinance was a matter of discussion at the Board's meetings. Input was received from both the Land Use and Open Space Committee and the Township's Environmental Commission. Plaintiff engaged actively in the deliberative process, appearing before the Board to discuss a lighting study supporting its position that LED lighting was appropriate, and even submitting a suggested ordinance for the Board's consideration.

Minutes and memoranda from the various meetings reflect the Board's consideration of digital billboards and the impact of the size and placement of billboards along Interstate 287 (I-287) upon driver safety, as well as the Environmental Commission's concerns regarding the glare from billboards onto residential properties and that billboards not be visible from residential properties. At the direction of the Land Use and Open Space Committee, the draft ordinance was revised to include a ban on variable message and electronic signage throughout the Township. One memo noted the draft ordinance's " rather unique requirement," reducing the maximum distance of billboards from the highway, which was [437 N.J.Super. 499] intended to reduce overall tree removal and the likelihood that billboards would be visible from local roadways.

In January 2009, Mark Healey, the Township's Director of Planning, reported to the Board regarding: his survey of existing billboards; potentially acceptable locations along Route 27 and I-287; and potential location, bulk, and design requirements. Healey recommended against allowing billboards on Route 27 because most of the area under consideration there had been developed and placement in front of existing businesses " would significantly detract from community character." He advised further that if the Board wanted to consider locations on Route 27, a few commercially zoned locations might be appropriate because " they are either undeveloped or have features (e.g., transmission tower or industrial use) that already detract from the aesthetics of the area." As to potential design restrictions, the memo recommended against permitting billboards to " rotate, move, produce noise or smoke, give the illusion of movement, display video or other changing imagery, automatically change or be animated or blinking."

The Board submitted a draft zoning ordinance to the Mayor and Council in April 2009. The accompanying memo reports that the Board " spent four worksession meetings on the proposed ordinance and

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did a field visit to assess potential impacts." The Board determined that permitting billboards along I-287 would be the most appropriate means of addressing potential First Amendment claims on the part of billboard companies. The memo discussed the Board's reasoning:

The draft ordinance was carefully crafted to minimize impact to the character of Franklin, particularly to the residential properties on the north side of I-287. For example, the ordinance would: limit the number of potential billboards; require that billboards be a certain distance apart; would limit their height and size; and would NOT allow billboards adjacent to the residential properties along the north side of I-287 (i.e., billboards would ONLY be permitted on the industrially-zoned land on the opposite side of I-287).

Specifically addressing the issue of digital billboards, the memo stated:

[437 N.J.Super. 500] It should be noted that the Board spent a good amount of time discussing whether to permit LED billboards in the ordinance. In the end, the Board decided that it would be best to not permit LED billboards in the Ordinance. This was done because the Board felt that it did not have enough information or sufficient expertise to craft ordinance language to appropriately address LED billboards. The Board, however, did not make a determination whether LED billboards would be inappropriate. If a billboard company wanted to pursue a LED billboard, the Board felt that the more proper forum for that discussion was before the Zoning Board of Adjustment where sworn testimony by expert witnesses would be provided and where specific conditions could potentially be placed on its operation.

In language similar to the declarations of policy underlying federal and state legislation, the stated purpose of the Ordinance is " to balance the need to control and regulate billboards, promote and preserve the scenic beauty and character of the Township, provide for the safety and convenience of the public, and to recognize certain Constitutional rights relative to outdoor advertising." The Ordinance permits a conditional use of static billboards in an area approximately 2000 feet long fronting on I-287 in the M-2 zone, but prohibits all digital and electronic billboards:[4]

No billboard or billboard display area or portion thereof shall rotate, move, produce noise or smoke, give the illusion of movement, display video or other changing imagery, automatically change, or be animated or blinking, nor shall any billboard or portion thereof have any electronic, digital, tri-vision or other animated characteristics resulting in an automatically changing depiction.
[Franklin Twp., N.J., Ordinance 3875-10 § 112-53.1(c)(3) (2010) (emphasis added).]

Both the Ordinance and N.J.A.C. 16:41C-8.7(b)(3) require a minimum of 1000 feet between billboards. Since the M-2 zone fronting I-287 is approximately 2000 feet long, the net result is that the Ordinance permitted the construction of three ...


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