COASTAL OUTDOOR ADVERTISING GROUP, L.L.C. v. TOWNSHIP OF UNION, NEW JERSEY

Filing 89

OPINION filed re 52 MOTION for Partial Summary Judgment filed by COASTAL OUTDOOR ADVERTISING GROUP, L.L.C., 53 MOTION for Summary Judgment filed by TOWNSHIP OF UNION, NEW JERSEY. Signed by Judge Freda L. Wolfson on 12/29/2009. (mmh)

UNITED STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY ____________________________________ : : : : P la in tiff, : : v. : : T O W N S H I P OF UNION, NEW JERSEY, : : D e fe n d a n t. : ____________________________________ : C O A S T A L OUTDOOR ADVERTISING G R O U P , LLC, W O L F S O N , United States District Judge: Presently before the Court is a Motion for Partial Summary Judgment by Plaintiff, C o a s ta l Outdoor Advertising Group, LLC ("Coastal") on its challenges to the

Civil Action No.: 07-04351(FLW) Opinion

c o n s t i t u ti o n a l i t y and application of an ordinance precluding the placement and erection of o ff-s i t e signs. After Coastal brought this suit, Defendant, Township of Union, New Jersey (" T o w n s h i p " ), amended the ordinance. Coastal does not challenge the new ordinance, but s e e k s damages (under 42 U.S.C. § 1983) and equitable relief (under state law) arising from t h e Township's application of the former allegedly unconstitutional ordinance. C o a s t a l claims that the former ordinance: (1) impermissibly favors commercial over n o n c o m m e r c i a l speech; (2) is impermissibly content-based; (3) lacks appropriate procedural s a fe g u a r d s ; (4) fails to satisfy the constitutional requirements for restrictions on

c o m m e r c i a l speech; (5) is invalid under state law; and (6) contains an unconstitutional fee

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structure.

In its Motion for Partial Summary Judgment, Coastal seeks judgment on its

c l a im s .1 The Township counters with its own Motion for Summary Judgment, arguing first, t h a t Coastal lacks standing to bring its various challenges, and second, that the ordinance i s constitutional.2 F o r the following reasons, the Court finds that Coastal lacks standing to bring its F i r s t Amendment, Equal Protection, and Procedural Due Process claims because it fails to d e m o n s t r a t e redressability. As to Coastal's Fee Structure claim, Coastal has failed to

a d d r e s s the merits of that claim in its opposition brief. See Harrington v. All American P l a z a s , Inc., 2009 WL 2992538, * 5 (D.N.J. 2009) (granting summary judgment for d e fe n d a n t where plaintiff failed to respond in its opposition brief with an argument a d e q u a t e l y articulating the factual and legal basis in support of its position); California N a t u r a l , Inc. v. Nestle Holdings, Inc., 631 F.Supp. 465, 470 (D.N.J. 1986) ("If a party fails to r e s p o n d in the required manner, the court may, if appropriate, enter summary judgment

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C o a s t a l 's motion is for partial summary judgment only in the sense that it does not seek ju d g m e n t regarding the types and amounts of its claimed damages. Its motion does seek ju d g m e n t on the merits of each of its claims, with the exception of its fee structure claim which i s not briefed. See Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Partial S u m m a r y Judgment ("Pl. Open. Br.") at 1 ("[J]udgment should be entered in favor of Coastal o n the narrow issue of the validity of the former Union Sign Ordinance. A trial as to damages a n d other remedies should then be scheduled."). T h e Township incorporates by reference several of the arguments it advanced in its o p p o s i t i o n to Coastal's Motion for a Preliminary Injunction and Temporary Restraining O r d e r . For completeness, the Court shall address throughout this opinion the arguments r a i s e d by both parties in the previous motions, citing to the relevant documents where a p p lica b le .

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against it.").3 Accordingly, summary judgment is granted to Defendant on all counts. I. F a c t u a l Background A s is required on a motion for summary judgment, this court will view the facts in t h e light most favorable to the non-moving party, relying upon only those facts that are u n d i s p u t e d .4 Coastal is in the business of posting and operating signs to be used for the d i s s e m in a t i o n of both commercial and noncommercial speech. Plaintiff's Statement of

M a t e r i a l Facts ("Pl. SOMF") at ¶ 1.5 Coastal owns multiple advertising signs throughout N e w Jersey that display advertising for businesses, organizations and individuals. Plaintiff's Verified Complaint ("Ver. Compl.") at ¶ 10. By way of a lease, Coastal arranged w i t h the owners of two parcels of real property in the Township to place signs on their p r o p e r t i e s , which are adjacent to Interstate 79, a multi-lane federal interstate highway that r u n s through the Township. The State of New Jersey issued outdoor advertising permits fo r each location. Id. ¶ 13. The Township claims that, on or shortly before August 1, 2007, a representative of

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S e e also Delaware, L. & W. R. Co. v. Kingsley, 189 F.Supp. 39 (D.N.J. 1960) ("This c o n te n t i o n was neither briefed nor argued. It will, therefore, be assumed to be abandoned."). Since both parties have moved for summary judgment on the same jurisdictional and s u b s t a n t i v e issues, the dictate to view the facts in the light most favorable to the non-moving p a r t y is not straightforward. I n its Brief, the Township provides a rather exhaustive account of Coastal's o p e r a t io n s and litigation strategy. While perhaps revealing of the cottage industry of l i t i g a tio n over billboards, Coastal's motivation in bringing the present suit is largely i r r e l e v a n t to the disposition of the present motions. It is for this Court to decide based on t h e facts and allegations of the present case only whether Coastal has standing to sustain a c o n s t i t u ti o n a l challenge to the Township's now-superceded ordinance.

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Coastal contacted the Township's zoning office to confirm that the Township does not allow b i l l b o a r d s advertising goods or services other than those provided at the site of the sign, a n d this representative further indicated that Coastal intended to challenge any such p r o h ib itio n . Statement of Material Fact in Support re Motion for Summary Judgment

(" D e f. SOMF") at ¶ 211-12; Plaintiff's Response to Defendant's Statement of Undisputed M a t e r i a l Facts ("Pl. Resp. to Def. SOM F " ) at ¶ 211-12 ("Admitted"). Shortly thereafter, on A u g u s t 6, 2007, Coastal submitted two sign application packages to the Township. Ver. C o m p l. at ¶ 14. The Township denied each application on the same day, faxing a copy of t h e denials to Coastal's counsel. Def. SOMF at ¶ 215; Pl. Resp. to Def. SOMF at ¶ 215. C o a s t a l 's applications revealed that its proposed signs would be 95-feet in height a n d would have 1000-square feet in size per sign face, each sign being double-sided. See U n io n Township Zoning Board Applications for Permit dated 8/6/07 ("Billboard

A p p li c a t i o n s " ), Plaintiff's Appendix to Motion for Temporary Restraining Order ("TRO A p p x ." ), Exhibit B. The Billboard Applications identified each sign as an "off-site general a d v e r t i s i n g sign." Id. In the written denial statements provided to Coastal, the Township cited section "30-8.2 et seq." as the basis for the denial, noting simply that "Proposed sign n o t permitted in Township." See id. Former Township Code 30-8.2a provided that "[o]nly s i g n s which promote or draw attention to a product, article of business, or service offered, s o l d , or rendered at or in the place or premises where such sign is located shall be p e r m i t t e d in the municipality." In other words, off-site signs were not permitted. Other s u b s e c t i o n s in former 30-8.2 addressed setback, height, number, size, and spacing

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restrictions.6

Other sections within the ordinance, apart from 30-8.2, contain similar

r e s t r i c t i o n s .7 Coastal contends that the former ordinance is unconstitutional and violates N e w Jersey state law. C o a s t a l also challenges the procedural framework of the former ordinance. The T o w n s h i p 's denial letters informed Coastal that it could appeal the initial decision to the B o a r d of Adjustment pursuant to Section 30-11.2(e) of the ordinance. See Pl. Open. Br. at 16. Even though the Township promptly considered, and rejected, Coastal's sign

a p p l i c a tio n s , the ordinance does not specify a time period within which the Township must r e s p o n d to a sign application. Thus, the permitting process is potentially of unlimited d u r a t i o n ; no provision of the ordinance prevents the Township from indefinitely considering a sign application. While N.J.S.A. § 40:55D-73 requires that decisions by boards of

a d ju s t m e n t be rendered not later than 120 days after an appeal is filed, if the Township n e v e r responds, the applicant cannot appeal.8 Such a framework has the effect of chilling
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F o r m e r Township Code 30-8.2i provided that "[a]ll signs must be contained within the b u il d in g height restriction of the zoning district." Section 8.2g provided for "a minimum d i s t a n c e of twenty (20) feet between any side property line and sign erected under the p r o v i s i o n s of this section." Under former section 8.2j, only one sign for which a permit is r e q u i r e d may be erected on any one premises. S u b s e c t i o n s 8.5.a.5(a), (c), (d) of the former ordinance provided for similar restrictions w i t h i n specified zoning districts. These restrictions, along with those found in 30-8.2 will h e r e a ft e r be referred to as "size and height limitations" or "size and height restrictions." 40:55D-73 provides: a . The board of adjustment shall render a decision not later than 1 2 0 days after the date (1) an appeal is taken from the decision of a n administrative officer or (2) the submission of a complete a p p l i c a t i o n for development to the board of adjustment pursuant

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an applicant's speech. I n connection with each claim, Coastal asserts that it is entitled to recover damages r e s u l t i n g from The Township's enforcement of the unconstitutional ordinance under 42 U .S . C . § 1983. Coastal contends that The Township is liable for enforcing the

u n c o n s t i t u t i o n a l ordinance, and that Coastal is entitled to compensatory damages for the " s u b s t a n t i a l financial damage" caused by the rejection of its sign applications. S O M F at ¶ 16. See Pl.

According to Coastal, damages include its inability to "disseminate

c o m m e r c ia l and noncommercial messages to the Township's residents and visitors" on its o w n behalf and on behalf of third-parties that would advertise through Coastal. Ver.

C o m p l. at ¶¶ 16-17. The Township argues, in response, that Coastal suffered no damages b e c a u s e its leases were conditional in that, inter alia, they were contingent upon the T o w n s h ip approving the signs. See Defendant's Rule 56.1 Counterstatement in Opposition t o Plaintiff's Statement of M a t e r i a l Facts in Support of Plaintiff's Motion for Partial S u m m a r y Judgment ("Def. Resp. to Pl. SOMF") at ¶ 16. Apart from compensatory

d a m a g e s , Coastal argues, it is at least entitled to a nominal damages award. See Pl. Open. B r . at 37-8.

t o section 59b. of this act. b . Failure of the board to render a decision within such 120-day p e r i o d or within such further time as may be consented to by the a p p l i c a n t , shall constitute a decision favorable to the applicant. I d . This provision was enacted "for the very purpose of preventing an applicant for a variance fr o m being exposed to unnecessarily protracted proceedings before a zoning board of a d ju s t m e n t ...." Kryscnski v. Shenkin, 53 N.J.Super. 590, 597 (App. Div. 1959).

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The Township further argues that Coastal lacks standing to bring any of its c h a lle n g e s . According to The Township, Coastal cannot fulfill the Article III standing

r e q u i r e m e n t s of injury-in-fact and redressability. See Def. Open. Br. at 24, 30. That is, C o a s t a l cannot demonstrate that a ruling declaring the former ordinance unconstitutional w o u l d redress any harm incurred from application of the ordinance. In addition, the

T o w n s h ip argues that Coastal's constitutional and state law challenges fail as a matter of la w . II. P r o c e d u r a l History O n September 6, 2007, Coastal filed its Complaint against The Township, and on S e p t e m b e r 24, 2007, Coastal filed a motion for a temporary restraining order and/or p r e l i m i n a r y injunction against the Township to prevent the enforcement of the ordinance. Before the disposition of the motion, the Township enacted a new ordinance that s u p p l a n te d the one at issue in this case. The new ordinance, also codified at Chapter 30-8, w e n t into effect on December 1, 2007, and maintained the same height, size, setback, and l o c a t i o n restrictions as its predecessor. The new ordinance no longer included a general offs i t e ban, but added a ban on all billboards.9

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T h e new ordinance provides: T h e following signs and sign-types are prohibited within the T o w n s h i p and shall not be erected .... a. Billboards ....

C o d e 30-8.5a. As for the height, size, setback, and location restrictions, section 30-8.5p is one e x a m p l e . It prohibits "[a]ny freestanding sign that is higher than fourteen (14') feet."

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Coastal has not challenged the new ordinance.

Thus, on January 1, 2008, the

T o w n s h ip filed a Suggestion of Mootness with respect to Coastal's request for a preliminary i n ju n c ti o n and temporary restraining order. On February 28, 2008, this Court entered an O r d e r dismissing as moot Coastal's request for a preliminary injunction and temporary r e s t r a i n in g order. On May 22, 2009, Coastal filed the present Motion for Partial Summary J u d g m e n t . That same day, the Township followed suit with its own Motion for Summary J u d g m e n t on the grounds that Coastal lacked standing to pursue its claims, or a l t e r n a t i v e l y , that the ordinance was constitutional. T o w n s h ip 's Motion for Summary Judgment is granted. III. S t a n d a r d of Review A. J u r i s d i c t i o n a l Challenges For the reasons that follow, the

D e fe n d a n t 's challenge to this Court's jurisdiction is governed by Federal Rule of C iv i l Procedure 12(b)(1). Rule 12(b)(1) permits a party to bring a motion to dismiss for

w a n t of standing. See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007); St. T h o m a s -S t . John Hotel & Tourism Ass'n v. Gov't of the U.S. Virgin Islands, 218 F.3d 232, 2 4 0 (3d Cir.2000) ("The issue of standing is jurisdictional."). In ruling on such a motion at t h e pleading stage, the Court must accept as true all material allegations set forth in the c o m p l a i n t , and must construe those facts in favor of the nonmoving party. See Storino v. B o r o u g h of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003). Once the proceeding has reached the summary judgment stage, however, the p l a i n ti ff "bears the burden of establishing the elements of standing, and each element must

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be supported in the same way as any other matter on which the plaintiff bears the burden o f proof, i.e., with the manner and degree of evidence required at the successive stages of t h e litigation." FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d C i r . 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Thus, Coastal m u s t demonstrate jurisdiction in accordance with the summary judgment standard d i s c u s s e d below.10 B. S u m m a r y Judgment Standard

" S u m m a r y judgment is proper if there is no genuine issue of material fact and if, v i e w i n g the facts in the light most favorable to the non-moving party, the moving party is e n t i t l e d to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 4 8 2 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R . Civ. P. 56(c). For an issue to be genuine, there must be "a sufficient evidentiary basis on w h i c h a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 4 5 5 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). I n determining whether a genuine issue of material fact exists, the court must view the fa c t s and all reasonable inferences drawn from those facts in the light most favorable to the n o n -m o v i n g party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

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W h i l e there is dispute amongst various courts as to whether it is proper to bring ju r i s d i c t i o n a l challenges per a summary judgment motion, see 5B Charles Alan Wright & A r t h u r R. Miller, Federal Practice & Procedure § 1350 (3d ed. 2009), courts in the Third Circuit p e r m i t this practice. See e.g., Berger v. Weinstein, 2009 WL 3236058, *1-2 (3d Cir. 2009) (a ffir m in g district court's grant of summary judgment for lack of jurisdiction); Option One M o r t g . Corp. v. Fitzgerald, -- F.Supp.2d --, 2009 WL 3380679, *5 (M.D.Pa. 2009).

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(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it m u s t have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F .3 d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of s u m m a r y judgment. I n i t i a l l y , the moving party has the burden of demonstrating the absence of a g e n u i n e issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has m e t this burden, the non-moving party must identify, by affidavits or otherwise, specific fa c t s showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, I n c ., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion fo r summary judgment, the non-moving party must identify specific facts and affirmative e v id e n c e that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. " A non-moving party may not 'rest upon mere allegations, general denials or . . . vague s t a t e m e n t s . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F .2 d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1 9 9 1 )). Moreover, the non-moving party must present "more than a scintilla of evidence s h o w i n g that there is a genuine issue for trial." Woloszyn v. County of Lawrence, 396 F.3d 3 1 4 , 319 (3d Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the entry of s u m m a r y judgment, after adequate time for discovery and upon motion, against a party w h o fails to make a showing sufficient to establish the existence of an element essential to t h a t party's case, and on which that party will bear the burden of proof at trial. Celotex, 4 7 7 U.S. at 322.

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IV. Jurisdiction A s a preliminary matter, this Court must consider whether it has jurisdiction to h e a r Plaintiff's Complaint. Pursuant to Article III of the Constitution, federal courts

" e n fo r c e the case-or-controversy requirement through the several justiciability doctrines t h a t cluster about Article III." Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Vander J a g t v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir. 1982) (Bork, J., concurring)). ju s ticia b ility doctrines include "standing, ripeness, mootness, the The

political-question

d o c t r i n e , and the prohibition on advisory opinions." See Toll Brothers, Inc.v. Township of R e a d i n g t o n , 555 F.3d 131, 137 (3d Cir. 2009) (quoting DaimlerChrysler Corp. v. Cuno, 547 U .S . 332, 352 (2006); Erwin Chemerinsky, Federal Jurisdiction § 2.1 (5th ed. 2007)). Having conceded the mootness of its injunctive relief claims, Coastal now proceeds on its d a m a g e s claim against the Township under 42 U.S.C. § 1983.11 Coastal, specifically, seeks

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I n prior briefing, Coastal abandoned its injunctive relief request (Count Five of the V e r i fi e d Complaint), conceding its mootness. See Plaintiff's Response to Defendant's S u g g e s t i o n of Mootness and Motion to Convert its Request for Injunctive Relief into a Motion fo r Partial Summary Judgment at 3. The court is aware that "repeal of . . . objectionable l a n g u a g e would not preclude a city from reenacting precisely the same provision ...." N o r t h e a s t e r n Florida Chapter of Associated General Contractors of America v. City of J a c k s o n v i l l e , 508 U.S. 656, 662 (1993), and a challenge to an amended law is not moot if the n e w law replacing it is substantially similar. See also Nextel West Corp. v. Unity Twp., 282 F .3 d 257, 262-63 (3d Cir. 2002). Nonetheless, Coastal has chosen of its own accord not to p u r s u e its injunctive relief claims. Coastal's claims for damages are clearly not moot under Third Circuit law. See Khodara Environ., Inc. v. Beckman, 237 F.3d 186, 196 (3d. Cir. 2001) (holding that a "claim fo r damages for the past application of the original statute invests it with a continuing, c o n c r e t e stake in the outcome of this litigation that has not been redressed by the passage of t h e recent Amendment") quoted in Nextel West Corp. v. Unity Twp., 282 F.3d 257, 263 (3d. Cir. 2 0 0 2 ).

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compensatory damages for the alleged First Amendment (Count One), Equal Protection ( C o u n t Two), and Fee Mechanism (Count Four) violations, and at least nominal damages fo r the alleged Procedural Due Process (Count Two) violation.12 As noted, Coastal has

fa i l e d to adequately challenge summary judgment on the Fee Structure Claim, hence, s t a n d i n g to raise such a claim need not be addressed.13 " P e r h a p s the most important of [the justiciability] doctrines is standing." B r o t h e r s , 555 F.3d at 137 (quoting Toll

Allen, 468 U.S. at 750) (internal quotation marks

o m i t t e d ). See also Pennsylvania Prison Soc. v. Cortes, 508 F.3d 156, 158 (3d Cir. 2007) ( " T h e rules of standing . . . are threshold determinants of the propriety of judicial i n t e r v e n t i o n ." ) (quoting W a r t h v. Seldin, 422 U.S. 490, 517-18 (1975)). To satisfy this

r e q u i r e m e n t , a plaintiff must demonstrate that (a) he has suffered "injury in fact," (b) the i n ju r y is "fairly traceable" to the actions of the defendant, and (c) the injury will likely be r e d r e s s e d by a favorable decision. Svc. Employ. v. Municipality of Mt. Lebanon, 446 F.3d 4 1 9 , 422 (3d Cir. 2006).

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C o a s t a l asserts that its "equitable relief" claim is, also, not moot. The only claim for e q u i ta b l e relief asserted in Coastal's complaint is made pursuant to its state law claim. See V e r . Compl. at ¶ 52 (petitioning the Court to "declare the sign restrictions valid in their e n t i r e t y " and order the Township to "permit Plaintiff Coastal to erect the requested signs"). Because, for reasons stated herein, the Court declines to exercise supplemental jurisdiction o v e r Coastal's state law claims, the Court need not address whether Coastal's claim for e q u i ta b l e relief is rendered moot by the amended ordinance. I n light of this Court's grant of summary judgment to the Defendant, for the reasons t h a t follow, the Court will decline to exercise supplemental jurisdiction over Plaintiff's state l a w claims. Hence, standing to raise the state law claims is not addressed here.

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For the following reasons, I conclude that Coastal has not satisfied these r e q u i r e m e n t s for its First Amendment, Equal Protection, and Procedural Due Process c l a im s . Generally, courts must separately address a plaintiff's standing to raise each claim a s s e r t e d in its complaint. See id. at 422 (citing Granite State Outdoor Adver., Inc. v. City of C le a r w a t e r , 351 F.3d 1112, 1116-19 (11th Cir. 2003)). Where claims, however, challenge the s a m e conduct and allege the same injuries, a claim-by-claim discussion is unnecessary. Toll B r o t h e r s , 555 F.3d at 139 n.5. Plaintiffs' First Amendment and Equal Protection claims c h a lle n g e the same conduct (the allegedly unconstitutional denial of the billboard a p p l i c a tio n s ) and will be treated together. Plaintiff's Procedural Due Process claim alleges a different sort of harm and will, therefore, be treated separately. A. F i r s t Amendment and Equal Protection Claims

C o a s t a l brings both facial and as-applied First Amendment challenges to the former o r d i n a n c e , along with similar challenges under the Equal Protection Clause. Whether asa p p l i e d or facial in character--a point of great dispute between the parties--Coastal must d e m o n s t r a t e Article III standing to challenge the former ordinance. See Svc. Employ, 446 F .3 d at 424 ("[The first amendment overbreadth] doctrine effectively allows a party to c h a lle n g e separate and hypothetical applications of a regulation only when an otherwise v a l i d application of that same regulation causes the party injury-in-fact."). This means that C o a s t a l must demonstrate that the denial of its billboard applications resulted in an injuryi n - f a c t , fairly traceable to the Township's denial, and likely to be redressed by a favorable d e c i s i o n by this Court.

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1.

In ju r y

T h e Third Circuit has held that the injury-in-fact requirement is often determinative o f whether a plaintiff has standing to sue. Toll Brothers, 555 F.3d at 139. Injury, in the s t a n d i n g context, must be sufficiently "distinct and palpable" to distinguish the plaintiff fr o m "the generalized and undifferentiated interest every citizen has in good government." Id. (citations omitted). "The need to insist upon meaningful limitations on what constitutes i n ju r y for standing purposes ... flows from an appreciation of the key role that injury plays ... in a limited and separated government." Id. (quoting John G. Roberts, Jr., Article III L i m i t s on Statutory Standing, 42 Duke L.J. 1219, 1224 (1993)). C o a s t a l contends that rejection of the billboard applications has caused it " s u b s t a n t i a l financial damage," including its inability to "disseminate commercial and n o n c o m m e r c i a l messages to the Township's residents and visitors" on behalf of itself and " t h o s e who would advertise on its signs." Ver. Compl. at ¶¶ 16-17. Billboard locations in t h e Township, Coastal alleges, "will be extremely effective at directing motorists to local b u s i n e s s e s and organizations and informing them about important issues and events." Id. a t ¶ 11. Coastal had procured twenty-year leases, conditioned upon, inter alia, the

T o w n s h ip 's approval of its billboard applications, that afforded it access to locations upon w h i c h it could have erected its two off-site signs. See Def. Appx. in Supp. of Mot. for Summ. J d m t . ("Def. Appx.") # 25 at ¶ 3 ("The Premises is leased . . . for a term of Twenty (20) years . . . commencing the earlier of ninety (90) days after the date of procurement of all n e c e s s a r y permits ....").

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As an initial matter, I reject the Township's argument that the conditional nature of t h e leases undermines Coastal's ability to demonstrate injury-in-fact. The Third Circuit e x p r e s s l y rejected a similar argument in Toll Brothers, 555 F.3d at 139-40. As explained in T o ll Brothers, the Supreme Court has held that a developer that procured a conditional l e a s e , and that had expended funds on plans for the project it intended to complete, suffered a n injury-in-fact. Id. at 140 (discussing Village of Arlington Heights v. Metropolitan The developer in Arlington Heights

H o u s i n g Development Corp., 429 U.S. 252 (1977)).

e n t e r e d into a 99-year lease-purchase agreement with a local landowner. The lease began i m m e d i a t e l y , but its continuation, along with the developer's right to purchase, was c o n ti n g e n t upon the developer convincing the local zoning board to re-zone the property to p e r m i t construction of an apartment building. The zoning board refused to re-zone the

p r o p e r t y and the developer brought suit challenging the board's decision on equal p r o t e c t i o n grounds. T h e Supreme Court, in addressing the developer's standing, ruled that the developer s u ffi c i e n t l y alleged injury-in-fact: [I ]t is inaccurate to say that MHDC suffers no economic injury fr o m a refusal to rezone, despite the contingency provisions in i t s contract. MHDC has expended thousands of dollars on the p la n s for Lincoln Green and on the studies submitted to the V i l l a g e in support of the petition for rezoning. Unless rezoning i s granted, many of these plans and studies will be worthless e v e n if MHDC finds another site at an equally attractive price. I d . at 262. Moreover, that the developer would still be required to "secure financing, qualify fo r federal subsidies, and carry through with construction," did not trouble the Court. Id.

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at 261. Because the developer had a "detailed, specific plan," the Court was "not required t o engage in undue speculation as a predicate for finding that the plaintiff ha[d] the r e q u i s it e personal stake in the controversy." Id. A p p l y i n g Arlington Heights to its facts, the Toll Brothers Court concluded that the p l a i n ti ff developer demonstrated injury-in-fact. Like the developer in Arlington Heights, T o ll Brothers had an interest in land, i.e., an option contract, it procured in pursuit of its d e v e l o p m e n t plans. At the time Toll Brothers purchased the land, it was zoned in a

m a n n e r amenable to its development plans. When the township rezoned the land after Toll B r o t h e r s procured its option, it rendered the land unsuitable for development. Toll

B r o t h e r s , 555 F.3d at 142. The Third Circuit held that Toll Brothers' inability to develop t h e land and the decrease in value of its option contracts constituted injury-in-fact. Id. Further, the lost opportunity to develop a specific tract of land, for which Toll Brothers had a n option to purchase, also constituted a cognizable injury. That Toll Brothers possessed a n option to purchase was significant because the holder of an option is entitled to apply for z o n i n g variances under New Jersey law. Id. I find Coastal's property interest sufficiently similar to that in Arlington Heights to w a r r a n t the same result here. The developers in Arlington Heights held a 99-year leasep u r c h a s e agreement. Coastal's 20-year lease is the sort of long-term lease present in

A r l i n g t o n Heights. Moreover, under New Jersey law, a long-term lessee has standing to a p p l y for zoning variances and approvals, see generally Cantor v. Saputelli, 121 F.Supp.2d 7 8 6 (D.N.J. 2000) (interpreting and explaining New Jersey law regarding lessee's rights to

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apply for subdivision approval), just as did the developer in Arlington Heights.

The

T o w n s h ip has not suggested otherwise-- t h a t Coastal, as a lessee of the proposed off-site s i g n locations, lacked standing to file the applications. M o r e o v e r , Coastal has alleged that "it expended substantial time and effort i n v e s tig a t i n g potential sign locations in the Township," Ver. Compl. at ¶ 11. It entered into a professional service agreement with a site planner to aid in preparing its applications for N e w Jersey Department of Transportation Notice of Approval Letters. See Def. SOMF at ¶ ¶ 140-42; Pl. Resp. to Def. SOMF at ¶¶ 140-42 ("Admitted").1 4 The Notices of Approval w e r e conditioned upon Coastal's billboard applications being approved by the Township. See e.g., Notice of Approval from Department of Transportation dated Feb. 17, 2005, Def. A p p x ., #32d at 12 ("[T]his permit for a new outdoor advertising sign shall be a conditional p e rm it .... To have this restriction removed from the permit you must submit

d o c u m e n t a t i o n to this office that . . . all relevant approvals required by the municipality h a v e been received."). This expenditure of funds in connection with a permit application is s i m i l a r to that expended by the plaintiff in Toll Brothers. Furthermore, as in Toll Brothers, t h e value of its leasehold agreements, conditional though they were, must have decreased,

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T o be clear, the NJDOT approval letters and initial expenditures described here were i n the name of Coastal-Inc., which then transferred its assets and existing permits to Plaintiff. See Def. SOMF at ¶¶ 177-81; Pl. Resp. to Def. SOMF at ¶¶ 177-81 ("Admitted") . That the New J e r s e y Department of Transportation ("NJDOT") letters were initially issued to Plaintiff's p r e d e c e s s o r does not affect the standing analysis because, at the time of its billboard a p p l i c a tio n s and at the time this suit was brought, Plaintiff was the holder of the leases and N J D O T letters.

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once the applications were denied. The monies Coastal expended in securing those leases c o u ld not be recouped. A c c o r d in g l y , I consider Coastal's leasehold interest, in conjunction with the expenses i n c u r r e d by Coastal in pursuing its billboard erection plans, similar to the type of injuries fo u n d cognizable in Toll Brothers and Arlington Heights. As with the property interests in t h o s e cases, the conditional nature of Coastal's lease does not undermine its standing to c h a lle n g e denial of the billboard applications on constitutional grounds. For these reasons, I conclude that Coastal has sufficiently demonstrated injury-in-fact. 2. T r a c e a b ilit y

T h e second element of Article III standing is one of causation. "If the injury-in-fact p r o n g focuses on whether the plaintiff suffered harm, then the traceability prong focuses on w h o inflicted that harm." Toll Brothers, 555 F.3d at 142 (emphasis in original). The key q u e s ti o n is whether "the defendant's challenged actions, and not the actions of some third p a r t y , caused the plaintiff's injury." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S.

5 5 5 , 560 (1992)). M o r e o v e r , "[the] causal connection need not be as close as the proximate c a u s a t i o n needed to succeed on the merits of a tort claim." Id. (citing Pub. Interest

R e s e a r c h Group of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1 9 9 0 )). Coastal challenges the constitutionality of the ordinance upon which the Township Z o n i n g Officer relied in denying its billboard applications. In Toll Brothers, it was the rez o n i n g that "directly caused Toll Brothers' inability to move forward with its development p l a n s , and it directly impacted the value of Toll Brothers' option." Id. at 142. Here, it is the

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Township's application of the former ordinance that directly caused Coastal's inability to m o v e forward with its plans, and directly impacted the value of Coastal's leasehold i n t e r e s ts . "No action of a third party is a more immediate cause of these harms." Id.

Accordingly, Coastal satisfies the traceability element. 3. R e d r e s s a b ilit y

W h e t h e r the third element­redressability­is met here is a source of great contention b e t w e e n the parties. Redressability is closely related to traceability, "as two sides of a

c a u s a t i o n coin." Toll Brothers, 555 F.3d at 142 (quoting Dynalantic Corp. v. Dep't of Def., 1 1 5 F.3d 1012, 1017 (D.C. Cir. 1997)). Whether a "favorable decision [will] alleviate the h a r m " is the essence of the redressability inquiry. Id. (citing Lujan, 504 U.S. at 560-61). As l o n g as a plaintiff establishes a "substantial likelihood that the requested relief will remedy t h e alleged injury in fact," the plaintiff's claim may proceed. Id. (citations omitted). In the z o n i n g context, a plaintiff's injury is redressable where "invalidation of the challenged o r d i n a n c e ... would tangibly improve the chances of construction." Id. (citing Huntington B r a n c h , N.A.A.C.P. v. Town of Huntington, N.Y., 689 F.2d 391, 395 (2d. Cir. 1982)). A recent District of New Jersey decision involving a challenge to a billboard ban held t h a t there was no substantial likelihood that the plaintiff billboard company would be able t o construct its billboard even if the challenged billboard ban was struck down. See Coastal O u t d o o r Advert. Gp., LLC v. Twp. of East Hanover, 630 F.Supp.2d 446, 454 (D.N.J. 2009). East Hanover reasoned that the size and height restriction of the former ordinance at issue i n that case would have "independently blocked the billboard, making it substantially

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unlikely the billboard could have even been constructed."

Id.

Because these size and

h e i g h t restrictions were unchallenged by the plaintiff, the court found that it could not s a t i s fy that court's redressability concerns.15 Id. at 452. I agree with East Hanover that a plaintiff must demonstrate substantial likelihood b y showing that it would have otherwise been entitled to approval of the billboard a p p lic a tio n s . To grant a plaintiff standing on any less of a showing would result in a

p y r r h i c victory. Since Coastal failed to challenged the size and height restrictions, Coastal c o u ld not ultimately prove any compensatory damages caused by the deprivation of a c o n s t i t u ti o n a l right. Cf. American Marine Rail NJ, LLC v. City of Bayonne, 289 F.Supp.2d 5 6 9 , 589 (D.N.J. 2003) (denying compensatory damages for lack of proof of causation where p l a i n ti ff bidder failed to demonstrate that it would have been awarded bid by municipality). I n short, I find East Hanover's redressability reasoning persuasive, as it is a p p r o p r i a te l y guided by Toll Brothers, and it is supported by the decisions of several other c i r c u i t s . See e.g. Covenant Media of Ga., LLC v. City of Lawrenceville, 580 F.Supp.2d 1313,

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T h e East Hanover Court further concluded that the plaintiff could not challenge the o r d i n a n c e 's size and height restrictions for a lack of causation. Because the township relied s o l e l y on the billboard ban provision, the court reasoned, the plaintiff did not have standing t o challenge any other provisions in the ordinance, including the size and height restrictions. N e it h e r party here has suggested that Coastal could not challenge the size and height r e s t r i c t i o n s for lack of causation. Furthermore, Toll Brothers describes the causation inquiry a s whether the alleged injury was by the township or a third party (see supra at IV.A.2)--not w h a t specific subsection of the ordinance was actually applied by the Township. See Toll B r o t h e r s , 555 F.3d at 142. Thus, I find that the causation prong would not preclude Coastal fr o m challenging the ordinance's size and height restrictions. Coastal chose not to challenge t h o s e restrictions; hence my redressability analysis relies upon Coastal's decision not to c h a lle n g e the size and height restrictions. See footnote 16, infra.

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1314 (N.D.Ga. 2008) (finding lack of redressability where plaintiff did "not mount a federal c o n s t i t u ti o n a l challenge to the height, size, location, and certification provisions of the C ity 's sign ordinance"); Harp Advert. Ill., Inc. v. Vill. of Chicago Ridge, 9 F.3d 1290, 1292 ( 7 t h Cir. 1993) (finding lack of redressability where plaintiff billboard company did not c h a lle n g e d size and height restrictions). Like the plaintiffs in these cases, Coastal has

fa i l e d to challenge the size and height restrictions in the former ordinance that clearly bar i t s sign applications.16 Thus, it cannot demonstrate redressability and it does not have

s t a n d i n g to bring its First Amendment and Equal Protection claims. 4. O v e r b r e a d t h Challenge

F o r the sake of clarity, I briefly address Plaintiff's purported "overbreadth" c h a lle n g e . There is disagreement between the parties as to whether Coastal has properly

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I directed the parties to address the East Hanover decision in supplemental letter b r i e f i n g . In its letter brief, Coastal argues that it has challenged the size and height r e s t r i c t i o n s by asserting that the entire ordinance is unconstitutional. Coastal's challenge to t h e entire ordinance, it says, is based on its challenge to the ordinance's governmental interest. Coastal, however, made no attempt in any of its briefing to properly analyze the size and h e i g h t restrictions under the appropriate content-neutral tests espoused by the Supreme Court a n d the Third Circuit. See e.g., City of Ladue v. Gilleo, 512 U.S. 43 (1994) (discussing c o n s t i t u ti o n a l i t y of time, place, and manner sign restrictions); Riel v. City of Bradford, 485 F.3d 7 3 6 , 751 (3d Cir. 2007) (same). Accordingly, I do not consider Plaintiff to have challenged the s i z e and height restrictions. It is not this Court's job to make legal arguments on behalf of the P l a in t i ff, particularly at the summary judgment stage. Cf. Globespanvirata, Inc. v. Texas I n s t r u m e n t s , Inc., 2005 WL 3077915 (D.N.J. 2005) ("Based on Defendants' failure to present a d e q u a t e infringement arguments for the majority of the claim limitations in this patent, the C o u r t will only address the disputed issues before the Court that are clearly discernable from t h e parties' briefs.") (citations omitted). See also Roma Outdoor Creations, Inc. v. City of C u m m i n g , Georgia, 599 F.Supp.2d. 1332, 1336, 1342 (N.D. Ga. 2009) ("Plaintiff's blanket c h a lle n g e to the Ordinance does not allow it to argue that it has specifically challenged the h e i g h t and separation requirements.").

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brought a facial challenge to the ordinance under the First Amendment overbreadth d o c t r i n e . I need not foray into the contours of the overbreadth doctrine, nor explain how C o a s t a l might have asserted such a challenge here. I simply reiterate that a party raising a n overbreadth challenge is subject to the same standing requirements discussed above; t h u s , Coastal does not have standing to bring such a claim here. See Svc. Employ, 446 F.3d a t 424 ("[The overbreadth] doctrine effectively allows a party to challenge separate and h y p o t h e t i c a l applications of a regulation only when an otherwise valid application of that s a m e regulation causes the party injury-in-fact."); Storino, 322 F.3d at 299 ("The Court has r e c o g n i z e d a limited right of litigants to bring actions on behalf of third parties only when t h e following three criteria are met: (1) the litigant has suffered an injury in fact giving him a sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close r e l a t i o n to the third party; and (3) there exists some hindrance to the third party's ability to p r o t e c t his own interests. ") (emphasis added). B. P r o c e d u r a l Due Process Claim

P r o c e d u r a l due process claims differ from First Amendment and Equal Protection c l a im s in that a plaintiff need not prove that it incurred actual injury to be awarded n o m i n a l damages. See Carey v. Phillips, 435 U.S. 247 (1978). "In procedural due process c l a im s , the deprivation by state action of a constitutionally protected interest in `life, l i b e r ty , or property' is not in itself unconstitutional; what is unconstitutional is the d e p r i v a t i o n of such interest without due process of law." Burns v. PA Dept. of Correction, 5 4 4 F.3d 279, 283-84 (3d Cir. 2008) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).

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For this reason, "a procedural due process violation is complete at the moment an i n d i v i d u a l is deprived of a liberty or property interest without being afforded the requisite p r o c e s s ." Id. at 284. Nonetheless, a party bringing a procedural due process challenge See Covenant

m u s t still demonstrate the jurisdictional requirement of injury-in-fact.

M e d i a of SC, LLC v. City of North Charleston, 493 F.3d 421, 428-9 (4th Cir. 2007) (e n g a g i n g in standing analysis for procedural due process claim). A s to whether a party may bring a facial or an as-applied challenge, under Third C ir c u i t law, "[i]t is well settled in the procedural due process context that a party has s t a n d i n g to challenge the constitutionality of a statute only insofar as it has an adverse i m p a c t on his own rights." United States v. Palma, 760 F.2d 475, 477 (3d Cir. 1985). Cf. U n i t e d States v. Woods, 915 F.2d 854, 862 (3d Cir. 1990) ("[O]utside of the First A m e n d m e n t context, a party has standing to raise a vagueness challenge only if the c h a lle n g e d statute is vague as to that party's conduct.") (citations omitted). Thus, a court " n e e d not hypothesize" whether the statute as applied to a different plaintiff under a d i ffe r e n t set of facts would be unconstitutional. Palma, 760 F.2d at 477. B y way of illustration, consider the Third Circuit's decision in United States v. P a l m a . The criminal defendant in Palma challenged the constitutionality of the restitution p r o v i s i o n s of the Victim and W i t n e s s Protection Act of 1982 (the "VWPA"). Id. at 476. After h e pled guilty to embezzling over a million dollars, the judge imposed a restitution c o n d it i o n on his parole at his sentencing hearing. Id. at 477. The defendant argued that t h e procedures for ordering restitution were facially invalid because they did not provide for

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a meaningful opportunity for a defendant to challenge a victim's claim for restitution. A c r i m i n a l defendant would be "chilled" from raising such a challenge at his sentencing h e a r i n g , the Defendant argued, out of fear that such an objection would adversely affect his c h a n c e of receiving a lenient sentence. Rejecting his facial challenge, the Court held that it m u s t "limit [its] inquiry into the constitutionality of the VWPA as applied to the particular fa c t s of this case." Id. (emphasis added). The Court went on to conclude that the defendant c o u ld not succeed on an as-applied claim because he "was afforded, and indeed took a d v a n t a g e of, the opportunity to present witnesses in support of his factual claims." Id. Moreover, he "[did] not contend that this opportunity to be heard was in any way i n a d e q u a t e ." Id. U n d e r Palma, this Court must limit its procedural due process inquiry to the c o n s t i t u ti o n a l i t y of the lack of time limits in the former ordinance as applied to Coastal. In t h a t context, Coastal may not facially challenge the lack of a time limit, arguing that it c h i l ls the speech of third parties not before the Court. What is before this Court is whether t h e lack of a time limit resulted in a denial of procedural due process to Coastal. Coastal is h a r d - p r e s s e d to so argue, since it received a same-day turn-around decision of its sign a p p l i c a tio n s , albeit they were denials. Like the defendant in Palma, Coastal cannot See Burns, 544 F.3d

c o n te n d that its opportunity to be heard was in any way inadequate.

a t 284 ("[A] procedural due process violation is complete at the moment an individual is d e p r i v e d of a liberty or property interest without being afforded the requisite process.") (e m p h a s i s added). Cf. Ellis v. U.S. Dept. of Housing and Urban Develop., 551 F.2d 13, 16

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(3d Cir. 1977) (holding that plaintiff tenants demonstrated injury-in-fact where their rents w e r e raised without a hearing). T h e Fourth Circuit's decision in Covenant Media of SC, LLC v. City of North C h a r l e s t o n , 493 F.3d 421, 428 (4th Cir. 2007), holding that a billboard company had s t a n d i n g to bring a procedural due process challenge, is distinguishable. In that case, the l o c a l government delayed over 300 days in responding to the plaintiff's billboard a p p l i c a tio n s . This "untimely consideration" of plaintiff's application constituted an injuryi n -fa c t . Id. at 429. Coastal, by contrast, has not pointed to any untimely consideration of i t s applications and, therefore, has failed to demonstrate injury-in-fact. C o a s t a l does not have standing to bring its procedural due process claim. IV . S u p p l e m e n t a l Jurisdiction T h e remaining allegations in the Complaint are based on New Jersey state law. See V e r i f. Compl., Count Three, ¶¶ 47-51. Under 28 U.S.C. § 1367(c)(3), a district court "may d e c l i n e to exercise supplemental jurisdiction" over a related state law claim when "it has d i s m i s s e d all claims over which it has original jurisdiction." In addition, the Third Circuit h a s held that, where all federal claims are dismissed before trial, "the district court must d e c l i n e to decide the pendent state claims unless considerations of judicial economy, c o n v e n i e n c e , and fairness to the parties provide an affirmative justification for doing so." H e d g e s v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citations omitted). As Plaintiff has not a s s e r t e d any basis for the exercise of diversity jurisdiction, the Court will dismiss Plaintiff's r e m a i n i n g state law claims. Accordingly,

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V.

C o n c lu s io n F o r the foregoing reasons, Defendant's M o t i o n for Summary Judgment is GRANTED

a n d Plaintiff's Partial Motion for Summary Judgment is DENIED.

D a t e d : December 29, 2009

/s / Freda L. Wolfson Freda L. Wolfson, U.S.D.J.

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