INTERSTATE OUTDOOR ADVERTISING, L.P. v. ZONING BOARD OF THE TOWNSHIP OF MOUNT LAUREL et al
Filing
56
OPINION FILED. Signed by Judge Robert B. Kugler on 9/19/11. (js)
NOT FOR PUBLICATION
(Doc. No. 31)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
INTERSTATE OUTDOOR ADVERTISING, :
:
:
Plaintiff,
CONSOLIDATED CASE
:
Civil No. 09-1376 (RBK/AMD)
:
v.
:
:
ZONING BOARD OF THE TOWNSHIP OF
OPINION
:
MOUNT LAUREL AND THE TOWNSHIP
:
OF MOUNT LAUREL,
:
:
Defendants.
:
___________________________________
:
INTERSTATE OUTDOOR ADVERTISING, :
:
:
Plaintiff,
:
:
v.
:
:
ZONING BOARD OF THE TOWNSHIP OF
:
MOUNT LAUREL AND THE TOWNSHIP
:
OF MOUNT LAUREL,
:
:
Defendants.
:
___________________________________
:
INTERSTATE OUTDOOR ADVERTISING, :
:
:
Plaintiff,
:
:
v.
:
:
ZONING BOARD OF THE TOWNSHIP OF
:
MOUNT LAUREL AND THE TOWNSHIP
:
OF MOUNT LAUREL,
:
:
Defendants.
:
___________________________________
1
KUGLER, United States District Judge:
Before the court is Defendants’ motion for summary judgment seeking dismissal of
Plaintiff’s claim that Mt. Laurel’s Zoning Ordinance prohibiting the erection of outdoor
advertising displays is unconstitutional on First Amendment, Fourteenth Amendment, and New
Jersey State Constitution grounds. Upon evaluation of the merits of that motion, the Court finds
that the ordinance is a reasonable means of achieving traffic safety and maintaining the natural
beauty of the township. Furthermore, the court finds that the evidence the city relies upon is
reasonably relevant to city’s goals of achieving traffic safety and preserving aesthetics. The
Court also finds that the Zoning Ordinance does not discriminate between similarly situated
classes, and is not selectively enforced. Accordingly, Defendants’ motion for summary judgment
[Doc. No. 31] is granted.
I. Background
Interstate Outdoor Advertising (“Plaintiff” or “Interstate”) is engaged in the business of
erecting and leasing outdoor advertising structures in a variety of markets, including Mt. Laurel,
New Jersey. Interstate’s billboards are made available for both commercial and non-commercial
purposes. (Gerber Cert. at 3: ¶5). Mt. Laurel first enacted a zoning ordinance banning billboards
23 years ago. (Section 154-81 of Ordinance 1988-7). In 2008, before Mt. Laurel amended its
zoning code, Interstate filed nine (9) development applications to the Township Zoning Board of
Adjustment (“Zoning Board”) proposing to erect nine outdoor advertising signs in the Township
along U.S. Interstate-295 (a major transportation corridor with three lanes of traffic in each
direction). (See Norman Cert. at 7, Ex. C). After a public hearing on each application, the Zoning
Board denied Interstate’s requests. (Norman Cert., Exs. F, G, and H).
2
In 2008, Defendant Township adopted Ordinance 2008-12 (hereinafter “the ordinance”)
to ban off-site 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:
154-84. Prohibited Signs. The following signs and sign-types are prohibited
within the Township and shall not be erected. . . .
(a)
Billboards. . . .
(y)
Signs immediately adjacent to Interstate 295 and the New Jersey
Turnpike.
(Norman Cert. at 19-20, Ex. D).
Plaintiff challenges those denials and alleges that the Ordinance constitutes an
impermissible restriction on 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 a connection between a complete ban of off-site
advertising throughout Mt. Laurel and the promotion of traffic safety and aesthetics.
II. Legal Standard
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of
material fact exists only if the evidence is such that a reasonable jury could find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weighs the evidence presented by the parties, the Court is not to make credibility determinations
regarding witness testimony. Sunoco, Inc. v. MX Wholesale Fuel Corp., 565 F. Supp. 2d 572,
3
575 (D.N.J. 2008). “The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
However, to defeat a motion for summary judgment, the nonmoving party must present
competent evidence that would be admissible at trial. See Stelwagon Mfg. Co. v. Tarmac
Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995). The nonmoving party “may not rest upon
the mere allegations or denials of” its pleadings and must present more than just “bare assertions
[or] conclusory allegations or suspicions” to establish the existence of a genuine issue of material
fact. Fireman’s Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (citation
omitted); see Fed. R. Civ. P. 56(e). “A party’s failure to make a showing that is ‘sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial,’ mandates the entry of summary judgment.” Watson v. Eastman
Kodak Co., 235 F.3d 851, 857-58 (3d Cir. 2000) (quoting Celotex Corp., 477 U.S. at 322).
III. Analysis
A. Standing
“The ‘irreducible constitutional minimum’ of Article III standing requires that the
plaintiff demonstrate: (1) an injury-in-fact, (2) a causal connection between the injury and the
defendant’s conduct, and (3) a likelihood that the injury will be redressed by a favorable
decision.” Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 143 (3d Cir. 2009). The first
two prongs of the standing requirement are not in issue. The Township contends that the
Plaintiff’s claim is not redressable and thus fails the third prong of the standing inquiry.
The Township asserts that because Interstate did not challenge the sign restrictions on
height and size, the sign restrictions would prohibit Interstate’s applications even if the provision
4
banning billboards were invalidated. See id. at 143. It is true that Plaintiff specifically named
only § 154-84 in its amended complaint. However, Plaintiff asserted in its sur-reply1 that it has
challenged both the specific billboard prohibition and the entirety of the zoning ordinance,
including the general bulk size requirements for signs, in its pleadings. (Plaintiff's Sur-Reply at
2-3). Plaintiff argues that the Township should amend their ordinance to allow for signs with
reasonable height and size requirements. Therefore, Plaintiff has standing to challenge the
Township’s ordinance because Plaintiff’s claim is redressable. See Metromedia, Inc. v. City of
San Diego, 453 U.S. 490, 504 (1981) (holding that plaintiff billboard company had standing to
challenge restrictions on both commercial and noncommercial signs).
B. Interstate’s Free Speech Claim
Billboards can instigate communicative controversy via their display of strong
ideological messages. Similarly, billboards are capable of instigating noncommunicative
controversy via posing danger to drivers and interruption of the natural scenery. However, it has
been recognized that “the government has legitimate interests in controlling the
noncommunicative aspects of the medium . . .” Id. at 502. But because the regulation of the
noncommunicative aspects of a medium often impinges on the communicative aspects, it is
necessary for the Court to reconcile the government’s regulatory interests with the individual’s
right to expression. Id. The Court must therefore ensure that “a sufficient basis” exists for
Defendants’ assertion that billboards pose traffic hazards and compromise the aesthetics of the
community. Id. at 508.
1
Under Local Civil Rule 7.1(d)(6) sur-replies are not permitted without leave of the Court. The Court hereby grants
Plaintiff's request for leave to file a sur-reply.
5
The court analyzes the constitutionality of the ordinances in question under a four-part
test. Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 562
(1980). Under this test, a court must first determine whether the communication concerns lawful
activity and is not misleading. Second, in order for the restriction to withstand constitutional
review, the State must assert that a substantial interest will be achieved by restricting commercial
speech. If both inquiries yield positive answers, the Court must then determine whether the
restriction directly advances the state’s asserted interest. Finally, the Court must ensure that the
restriction is not more extensive than is necessary to serve that interest. Id. at 566. To properly
evaluate the last two elements of the Central Hudson, the Court must consider the “fit” between
the legislative ends and the means chosen to accomplish those ends. Rubin v. Coors Brewing
Co., 514 U.S. 476 (1995). The parties here do not dispute that the speech is lawful and agree that
the Township’s interests in traffic safety and aesthetics constitute substantial interests. However,
Plaintiff argues that the Township cannot show that the Zoning Ordinance directly advances the
Township’s asserted interests in traffic safety and aesthetics or that the Zoning Ordinance is not
more extensive than is necessary to serve those interests.
A regulation “may not be sustained if it provides only ineffective or remote support for
the government's purpose.” Central Hudson, 447 U.S. at 564. Moreover, regulations which
“indirectly advance” a state interest should be struck. Id. Hence, a court must carefully consider
whether the general application of the statute directly advances the government's interests. To
perform this analysis, the Court first considers whether there is “a sufficient basis for believing
that billboards are traffic hazards and are unattractive.” Metromedia, 453 U.S. at 508 (emphasis
added). If the Court finds such a basis, the Court accords broad deference to legislative judgment
6
of what constitutes regulations that directly advance substantial governmental interests. See id. at
453 U.S. at 509-10.
In Metromedia, the Court relied on legislative judgment in the absence of any evidence
contradicting those judgments. Id. at 508 (“There is nothing here to suggest that these judgments
are unreasonable.”). Where evidence contradicting legislative judgments is produced, the
municipality is entitled to Metromedia deference only if it supports its judgments with relevant
evidence to justify infringement upon the fundamental rights of citizens. See Metro Lights,
L.L.C. v. City of Los Angeles, 551 F.3d 898, 914 n.13 (9th Cir. 2009) (finding that Metromedia
deference is properly applied upon a showing that the municipality’s “Sign Ordinance . . .
advances the City’s interests and is narrowly tailored”). Some courts have required that
municipalities produce scientific evidence, including studies, empirical data or professional
literature to substantiate the connection between the government interest and the regulation at
issue. See Burkow v. City of Los Angeles, 119 F.Supp.2d 1076, 1080 (C.D.Cal. 2000) (citing
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)). In Burkow, the District Court struck down a
law which prohibited citizens from displaying a “For Sale” sign on or in a vehicle, finding the
regulation unsupported by any studies or evidence. Burkow, 119 F.Supp at 1080-81.
The New Jersey Supreme Court has similarly concluded that the government must show
a legitimate governmental interest that is to be served by an ordinance, and must demonstrate a
reasonable factual basis indicating that the regulation advances the governmental interest. Bell v.
Twp. of Stafford, 541 A.2d 692, 698 (1988). In Bell, the New Jersey Supreme Court was called
upon to evaluate the validity of an absolute billboard ban. Id. at 694. The Bell court noted that
the municipality had the burden “to present and confirm those compelling legitimate
governmental interests and a reasonable factual basis for its regulatory scheme in order to
7
validate its legislative action.” Id. at 698. Because the record was devoid of any evidence, the
Bell Court found that the municipality's regulation failed to pass constitutional muster.
A broad prohibition on billboards is an acceptable means of addressing the problems of
traffic safety and aesthetic suitability that the Township seeks to address. See Metromedia, 453
U.S. at 508 (“the most direct and perhaps the only effective approach to solving the problems
[billboards] create is to prohibit them”). Mt. Laurel’s Zoning Ordinance states that the purpose
for the Township’s billboard ban is to enhance traffic safety and the aesthetics of the Mt. Laurel
area. (Norman Cert. at 3-4, Ex. D). The central question is whether the Township has provided
sufficient evidentiary basis to support a finding that billboards present aesthetic and traffic safety
concerns.
The final prong of Central Hudson does not require a showing that the legislating
entity has employed the “least restrictive means” to accomplish its goals. See
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001). So long as there is a
reasonable fit between the means chosen and the ends identified, the regulation
meets the fourth prong of this test. Id. at 556.
Nichols Media Group v. Twp. of Babylon, 365 F.Supp.2d 295, 309-310 (2005).
Plaintiff has not raised any issues of material fact in its opposition to Defendants motion
for Summary Judgment.2 Plaintiff has only presented conflicting expert opinions, which rely on
studies that reach different legal conclusions than Defendant’s traffic engineering reports.3 The
2
Defendant Mt. Laurel has failed to include a Local Rule 56.1 Separate Statement of Undisputed Fact to supplement
its Summary Judgment brief. Failure to submit such a Rule 56.1 Statement is an appropriate grounds to deny the
Defendant’s motion. However, a court may excuse the failure to submit a Rule 56.1 statement where there is no
evidence of bad faith. See, e.g., Rumbas v. Borough of Lawnside, 2008 U.S. Dist. LEXIS 60712 (D.N.J.2008)
(Simandle, J.); Shirden v. Cordero, 509 F.Supp.2d 461, 463–64 n .1 (D.N.J.2007) (Martini, Jr.). For the purposes of
this Summary Judgment motion, the Court has accepted all of the facts submitted in the Plaintiff’s Rule 56.1
Statement as true. Nonetheless, the Court finds that Summary Judgment for the Defendant is appropriate here. While
the Court will overlook the Defendant’s failure to include a Rule 56.1 Statement in this instance, the Court
impresses upon the Defendant that the Court will not be so lenient in the future if the Defendant again fails to follow
the applicable rules.
3
When deciding whether an expert report is sufficient to overcome a summary judgment, the court must make two
completely distinct analyses. The court must first see whether the expert report meets evidentiary requirements set
forth in Rule 703 of the Federal Rules of Evidence; if the evidence meets this level, then its ability to establish the
existence of an essential element of the nonmoving parties case is evaluated. In re Paoli R.R. Yard PCB Litigation,
8
Court merely reviews the Township’s data to determine whether “a plausible factual basis” exists
for the conclusion that billboards negatively impact traffic safety and aesthetics. Metro Lights,
551 F.3d at 914 n.13.
1. Traffic Safety
The third prong of Central Hudson addresses whether the regulations at issue “directly
and materially” advance the stated goals of the regulation. This prong is satisfied upon a showing
that the ordinances reduce the concerns addressed by the ordinance “to a material degree.”
Lorillard, 533 U.S. at 555. To make this showing, a municipality can rely on evidence gathered
from studies conducted in other geographic locations. Renton v. Playtime Theaters, Inc., 475
U.S. 41, 51 (1986). In Renton, the plaintiffs challenged the constitutionality of a zoning
ordinance that prohibited adult motion picture theaters from locating within 1,000 feet of any
residential zone, single or multiple-family dwelling, church, park or school. The Supreme Court
held that notwithstanding the lack of studies specific to the Renton locality, the city had cited
sufficient studies to support its justification for the municipal ordinance in question. “The First
Amendment does not require a city, before enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated by other cities, so long as whatever
evidence the city relies upon is reasonably believed to be relevant to the problem that the city
addresses.” Renton, 475 U.S. at 51-52 (emphasis added).
Plaintiffs argue that the 2003 study cited by Defendants, “Standards for On-Premise
Signs” from the United States Sign Council, is not relevant. Plaintiff correctly notes that the
study was only designed to study on-premise signs, not off-premise billboards. In a similar case,
35 F.3d 717, 744 n.10 (3rd Cir. 1994); see also Brill v. Guardian Life Ins. Co. of Am., 666 A.2d 146, 158 (N.J.
1995) (“[A] party cannot defeat a motion for summary judgment merely by submitting an expert's report in his or
her favor.”).
9
the District of New Jersey, citing Renton, held that while parties may rely on evidence
previously generated, that evidence must still be relevant to the circumstances at hand to be
admissible. Interstate Outdoor Advertising v. Twp. of Cherry Hill, 672 F.Supp.2d 675, 680
(2009). Therefore, Mt. Laurel may not rely on the 2003 study, which by its own terms was
designed exclusively to examine the traffic safety implications of on-site advertisements.
The Court is satisfied, however, that other studies cited by Mt. Laurel provide a sufficient
basis for allowing the Court to review the connection between traffic safety and a total ban of
billboards. The Township has produced extensive evidence upon which it relied when
concluding that traffic safety is compromised in Mt. Laurel by off-site advertising signs. Among
the evidence produced by Defendant are the 2006 National Highway Traffic Safety
Administration Report, “The Impact of Driver Inattention on Near-Crash/Crash Risk: An
Analysis Using the 100 Car Naturalistic Driving Study Data,” which found that within a 95
percent confidence interval, “23 percent of the crashes and near crashes that occur in a
metropolitan environment are attributable to eyes off the forward roadway for 2 seconds or
more.” (Litwornia Report at 4, Ex. L). The probability of an accident resulting from driver
inattention was multiplied by a factor of 4 for drivers who were drowsy. Id.
The Defendants also cite a 2001 study, “Forensic Aspects of Vision and Highway
Safety,” which noted that drivers have good vision only in a cone of vision of approximately 20
degrees. “Visual acuity diminishes from the small cone of vision where a person focuses his
attention.” (Litwornia Report at 3, Ex. L). When a driver expands his vision "from an angle of 3
degrees to 10 degrees a person's acuity would [diminish] from 20/20 to 20/100." (Id.). This study
provides reasonably relevant support for a legislative body’s finding that billboards, which are
10
designed to attract driver attention, would be likely to result in dangerously poor vision of the
roadway for the period of time that the driver is focused on the roadway.
Defendants also cited the Madigan-Hyland Study, a more local study, which measured
accidents for two years along the NY State Thruway. The study showed that 32% of the
accidents on the NY State Thruway occurred in segments of the highway system that contained
outdoor advertisements, even though such areas comprised only 13% of the highway system.
This represented an increase in accident rates in the areas containing advertising that was over
triple the average rate. (Litwornia Report at 16, Ex. L).
Defendants cite several other site-specific studies, one of which is the Milwaukee County
Stadium Variable Message Sign Study. The Milwaukee study showed that immediately after a
Wisconsin billboard was installed in 1984 adjacent to Milwaukee County Stadium on I-94,
vehicular crashes increased by 8% to 35% after installation, depending on the type of crash. In
deciding whether to amend the 1988 ordinance in 2008, the Defendants considered several other
studies not discussed here. (See Litwornia Report at 16-17, Ex. L).
Plaintiff cites several studies intended to show that billboards do not endanger motorists.
Plaintiff attempts to discredit Defendant’s findings by citing a 2007 study by Virginia Tech that
concluded that there was no statistical correlation between billboards and traffic accidents.
(Simoff Report at 3, Ex. N). However, the Court notes that the Virginia Tech Study was funded
by the Outdoor Advertising Research and Education Foundation, an industry-sponsored
organization, and had numerous methodological flaws.4 For these reasons, another district court,
4
For example, “the visibility distances are greater than the legibility distances but the legibility distances were used;
crashes due to weather or senior related were excluded from the study; . . . [Importantly, the Virginia Tech Study]
made the baseless assumption that conventional billboards are an acceptable baseline; a true comparison where
billboards were absent in the before study was missing.” (Litwornia Report at 5, Ex. L).
11
deciding a similar issue of billboard safety in 2005, excluded testimony from Dr. Lee, the
principal investigator of the Virginia Tech Study.5
The studies cited by Defendant show a reasonable factual basis for believing that
billboards are detrimental to traffic safety. Defendants relied on accident data specific to Mt.
Laurel, which revealed that Mt. Laurel has a large number of accidents due to the high traffic
volume within the municipality. Such data showed that from the years 2005-2007, there were
601 accidents, 156 injuries, and 3 fatalities in Mt. Laurel. (Litwornia Report at 17, Ex. L).
Defendant also states that according to a 2007 report, the stretch of I-295 in the Mt. Laurel
Township along mile post 41.6, for which Plaintiffs filed an application to erect a billboard, had
high traffic volume (82,548 in 2007) (Defendant’s Brief, 36).
The several studies cited by the Township could provide a legislative body with a
reasonable basis for determining that a complete billboard ban is required to best promote traffic
safety. In light of the above, the Court finds that the Township has supported its regulatory
scheme with sufficient factual basis.
2. Aesthetics
The Court also finds that the Township has adequately shown that its asserted interest in
aesthetics is sufficiently substantial in Mt. Laurel. A township has the right to determine its
community’s aesthetics, and may select the means for preserving the community’s beauty. See
Berman v. Parker, 348 U.S. 26, 33 (1954). However, a municipality cannot simply assert the
importance of aesthetics and ignore First Amendment protections in the name of beautification.
5
“[T]he Lee Study is so infected by industry bias as to lack credibility and reliability. This conclusion is supported
not only by industry involvement in the design and execution of the study but also by the lack of peer review and the
fact that there is no other scientific study with the same or similar conclusions regarding driver distraction. For these
reasons, the court rejects Dr. Lee's conclusions regarding traffic safety.” Nichols, 365 F.Supp.2d at 308.
12
“[Ae]sthetic judgments are necessarily subjective, defying objective evaluation, and for that
reason must be carefully scrutinized to determine if they are only a public rationalization of an
impermissible purpose.” Metromedia, 453 U.S. at 490, While promulgating some limitations on
outdoor advertising displays is plainly relevant to protecting the Township from commercial
clutter, it is not as immediately apparent that forbidding them in all zones in Mt. Laurel would
have an incremental effect on the aesthetic quality of the Township. Plaintiff argues that the
Township need not have a complete billboard ban in the Township's industrial areas, and further
notes that the Township’s commitment to beautification is weakened when the zoning ordinance
excepts onsite signs and bus shelter advertisements from the ban.
The Court must be wary of imposing its aesthetic preferences on Mt. Laurel. The
Township must provide a plausible rationale supporting its decision to implement a total ban
across all zones of Mt. Laurel of only off-site billboards. Mt. Laurel has made the aesthetic
judgment that off-site signs pose greater risk of aesthetic harm to the community than on-site
signs. There is precedent for this judgment, as the city in Metromedia's aesthetic distinction
between onsite signs and off-site signs was upheld as reasonable. Metromedia, 453 U.S. at 510.
The Metromedia Court accepted the City’s decision to value one kind of commercial speech
(onsite advertising) over another (off-site advertising). Id. at 514-515. Similar deference may be
warranted here, but may only be accorded after careful scrutiny of the evidence provided by Mt.
Laurel in support of its aesthetic judgments.
Mt. Laurel presents the following evidence on billboard aesthetics. First, Mt. Laurel notes
that billboards are not aesthetically desirable since “the major aspect of an advertisement sign by
definition is to distract a driver to read a message. Sign color, letter size, illumination create a
stark contrast with the natural and manmade environment.” (Litwornia Report at 20, Ex. L).
13
Second, Defendant notes that one of the main purposes of the federal Highway Beautification
Act is to protect scenic areas and major highways from aesthetic harm. Third, “Mount Laurel
considers the portion of I-295 in Mount Laurel scenic and is in the process of completing
comments on an application to the NJDOT for scenic highway designation.”6 (Litwornia Report
at 18, Ex. L). Mt. Laurel further notes that the need for aesthetic protection is greater in certain
areas of high traffic volume than in other areas. As Defendant’s expert report states, “the more
complex the landscape, e.g. multilane highways, the longer the time frame in the viewing cycle
necessary and therefore the more conspicuous signs need to be for specific detection.” (Litwornia
Report at 3, Ex. L). Because Mt. Laurel is a high-traffic volume area, the Township has few
options for maintaining the natural beauty of its environment.
Mt. Laurel is a community that must deal with high traffic volume from the portion of
interstate highway running through the Township. Despite commercial advantages that could
accrue to the Township from allowing billboard advertisements on its highways, the Township
has deemed that a ban on such advertisements is necessary to preserve the natural aesthetic
beauty of its environment. The Court is satisfied that the Township has produced sufficient
evidence to warrant Metromedia deference to the Township's aesthetic judgment. The Court
therefore holds that the Township's billboard ban is a reasonable means of preserving the
aesthetic environment of Mt. Laurel.
C. Interstate’s Equal Protection Claim
6
Mt. Laurel also anticipates that their request for a scenic corridor designation will be granted, “as a request was
submitted [to the NJDOT] and sent back for additional data and an expansion.” (Litwornia Report at 20, Ex. L).
14
Interstate argues that N.J. Stat. Ann. § 52:27D-345(e) violates the Equal Protection
Clause of the Fourteenth Amendment because it discriminates between on-site and off-site signs.
That claim fails.
The Equal Protection Clause protects similarly situated individuals from unequal
treatment under the law. U.S. Const. amend. XIV, § 1; see Kuhar v. Greensburg-Salem School
Dist., 616 F.2d 676, 677 (3d Cir. 1980). In general, if a challenged law distinguishes between
individuals based on their ability to exercise a fundamental right or by reference to race, national
origin, alienage, illegitimacy, or gender, the court must review the law under a heighted standard
of review. See Willing v. Lake Orion Community Sch. Bd. of Trustees, 924 F. Supp. 815, 820
(E.D. Mich. 1996). If a law does not involve a distinction implicating a fundamental right or a
recognized classification, the law is presumed valid and rational basis review applies. Id.
Significantly, the Equal Protection Clause applies only if the challenged law classifies
individuals on some basis. See Amerada Hess Corp. v. Div. of Taxation, 490 U.S. 66, 79 (1989)
(denying equal protection claims because there was “no discriminatory classification underlying
the challenged statute). A government can classify individuals by enacting a law that contains a
classification “on its face” or by applying a neutral law in a selective or discriminatory manner.
See John E. Nowak & Ronald D. Rotunda, Constitutional Law 711 (7th ed. 2004).
In an equal protection challenge to a zoning law, the question is whether “the township
has irrationally distinguished between similarly situated classes.” County Concrete Corp. v. Twp.
Of Roxbury, 442 F.3d 159, 171 (3d Cir. 2006) (citing Rogin v. Bensalem Twp., 616 F.2d 680,
689 (3d Cir. 1980)). Here, Plaintiff argues that the Township has irrationally distinguished
between similarly situated classes in permitting on-site advertisements while banning billboards.
However, Mt. Laurel has presented evidence that off-site billboards are more dangerous and
15
cause more aesthetic harm than on-site signs. (Litwornia report at 2-11, 15-19, Ex. L). Moreover,
Mt. Laurel has not selectively enforced its billboard ban against Interstate or any other entity.
Applying rational basis review, the Court finds that Mt. Laurel has demonstrated that the
ordinance is rationally related to the legitimate government purposes of preventing traffic
accidents within the Township and preserving the Township’s aesthetic beauty.
D. Interstate’s State Constitutional Claims
Interstate asserts that the ordinance violates its right to free speech and equal protection
as guaranteed by the New Jersey Constitution.
1. Free Speech
Article I, Paragraph 6 of the New Jersey Constitution has been interpreted by New Jersey
Courts to be no more restrictive than the federal free speech clause. Shelton College v. State Bd.
of Educ., 226 A.2d 612, 622 (N.J. 1967); see Karins v. City of Atlantic City, 706 A.2d 706, 713
(N.J. 1998). Plaintiff cites no authority for the position that Article I, Paragraph 6 provides more
expansive protections than the First Amendment. Thus, the Court finds that the Church’s claim
under the New Jersey Constitution fails for the same reasons that its First Amendment claim
fails.
2. Equal Protection
“Unlike its federal counterpart, the New Jersey Constitution does not contain an equal
protection clause.” State v. Chun, 943 A.2d 114, 142 (N.J. 2008). However, the New Jersey
Supreme Court has found that “[a] concept of equal protection is implicit in” the New Jersey
16
Constitution’s Due Process guarantee, N.J. Const. art. I, par. 1. McKenney v. Byrne, 412 A.2d
1041, 1047 (N.J. 1980). “Although conceptually similar, the right under the State Constitution
can in some situations be broader than the right conferred by the Equal Protection Clause.” Doe
v. Poritz, 662 A.2d 367, 414 (1995). Moreover, the New Jersey Supreme Court applies a
different analysis to equal protection claims under the New Jersey Constitution:
In considering equal protection-based challenges, we have not
followed the traditional equal protection paradigm of the federal
courts, which focuses rigidly on the status of a particular protected
class or the fundamental nature of the implicated right. Instead,
when analyzing equal protection challenges under New Jersey’s
Constitution, we have applied a balancing test that weighs the
nature of the affected right, the extent to which the governmental
restriction intrudes upon it, and the public need for the restriction.
Chun, 943 A.2d at 142 (quotation marks and citations omitted).
Applying that standard, the Court finds that Plaintiff fails to state an equal protection
violation under the New Jersey Constitution. Although the New Jersey Constitution can provide
greater protection than the Federal Constitution, there is no evidence in this case that New
Jersey’s adoption or enforcement of the ordinance is based on any impermissible classifications
or an intent to infringe upon Interstate’s fundamental rights. There is simply no indication that
the Township applies the ordinance in a discriminatory manner. Equal protection concepts
therefore do not apply.
IV. Conclusion
Mt. Laurel’s Zoning Ordinance clearly states the purposes for its ban on off-site
advertising displays, and the court is satisfied that the Township’s conclusions are supported by
sufficient evidence. The Township has provided evidence demonstrating that the ordinance
directly advances the substantial government interests of traffic safety and aesthetics, including
17
evidence that the Township considered less restrictive means and made a particularized inquiry
regarding the ban and the areas upon which it would apply. For the reasons discussed above, the
Court grants summary judgment for the Township. An appropriate Order shall issue
contemporaneously with the filing of this opinion.
Dated: 9/19/11
/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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