In re Denial of Outdoor Advert. Application No. 75708

IN THE MATTER OF THE DENIAL OF THE OUTDOOR ADVERTISING APPLICATION NUMBER 75708, NEW JERSEY TURNPIKE (I-95) E. ALIGNMENT E/S, MILEPOST 113.8 N.R.D. SECAUCUS TOWN, HUDSON COUNTY.

DOCKET NO. A-5468-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued November 8, 2018

June 18, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Ostrer and Mayer.

On appeal from the New Jersey Department of Transportation.

D. Mark Leonard argued the cause for appellant Hartz Mountain Industries, Inc. (Horowitz Rubino & Patton, attorneys; D. Mark Leonard, of counsel and on the briefs).

Jennifer R. Jaremback, Deputy Attorney General, argued the cause for respondent Department of Transportation (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Jennifer R. Jaremback, on the brief).

PER CURIAM

Hartz Mountain Industries, Inc. (Hartz) applied for a permit to erect a multi-message digital billboard visible to vehicles travelling south on the New Jersey Turnpike, I-95. Hartz proposed to place the sign on an existing structure that currently displays a sign facing northbound traffic. The New Jersey Department of Transportation (DOT) denied the application because the proposed billboard would be less than 500 feet from an interchange, as defined, contrary to N.J.A.C. 16:41C-8.1(d)(2). On appeal, Hartz claims the regulatory scheme violates its First Amendment rights to free speech. Hartz contends that DOT's regulations governing outdoor advertising are facially unconstitutional because they treat on-premise signs differently from off-premise signs, like Harz's proposed billboard. Hartz also argues that the regulation is unconstitutional as applied, because Hartz's proposed billboard, based on its particular location, poses no threat to aesthetics and traffic safety.

We conclude that Hartz lacks standing to raise its facial challenge. As for its as-applied challenge, we remand for development of a factual record to help determine whether the distance restriction applied to Hartz's proposed billboard promotes traffic safety.

I.

A.

The billboard structure that Hartz identified in its February 2015 permit application lies on the Turnpike's Eastern Spur near milepost 113.8 in Secaucus. Southbound motorists would need to look to their left, across the northbound lanes, to view the proposed billboard, which is located on the northwest corner of a Walmart property. The structure is also located north of Exit 17, which provides access to I-495 and the Lincoln Tunnel to New York City. To accommodate exiting traffic, the three south-bound lanes expand to five lanes, 374 feet south of the proposed billboard. Around 1900 feet from the pavement widening, the two added lanes split off and exit the highway.

DOT denied Hartz's application because the proposed billboard would be closer than 500 feet from the interchange at Exit 17. DOT measures distance from an interchange two ways: (1) from the "point of gore," that is, "the point where the main-traveled way and a ramp or another highway come together,"¹ N.J.A.C. 16:41C-2.1, and (2) from the point of pavement widening. N.J.A.C. 16:41C-8.1(d)(2). An "off-premise sign" may not be located within 500 feet ofeither the point of gore or the point of pavement widening, or any point between those two 500-foot zones. Ibid. If there is no pavement widening, a sign shall not be located within 1000 feet of the point of gore. N.J.A.C. 16:41C-8.1(d)(2)(i).

DOT's regulations implement state and federal statutory standards, as well as a federal-state agreement: the Roadside Sign Control and Outdoor Advertising Act (RSCOAA), N.J.S.A. 27:5-5 to -32; Agreement for Carrying Out National Policy Relative to Control of Outdoor Advertising in Areas Adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System (Agreement) (December 29, 1971); the Federal Highway Beautification Act of 1965 (HBA), 23 U.S.C. § 131; and federal implementing regulations, 23 C.F.R. 750.701 to .713.

The HBA conditions ten percent of a state's Federal-aid highway funds on the state's compliance with federal restrictions on outdoor advertising. 23 U.S.C. § 131(b). The statute requires "effective control" of signs within 660 feet of the right-of-way of all interstate and primary system highways. Ibid. In non-urban areas, the HBA also requires "effective control" beyond that 660-footlimit, if the sign is visible from the roadway and erected with that visibility in mind. Ibid.²

However, the HBA permits signs within 660 feet of the interstate and primary system highways in "zoned . . . or . . . unzoned industrial or commercial areas as may be determined by agreement" between a state and the United States Secretary of Transportation. 23 U.S.C. § 131(d); see also 23 C.F.R. 750.704(a)(4), (5) (permitting such signs); 23 C.F.R. 750.706(a) (providing that a state, "by law or regulation shall, in conformity with its agreement with the Secretary, set criteria for size, lighting and spacing of outdoor advertising signs" in commercial or industrial areas).

Under its 1971 Agreement with the federal government, New Jersey agreed to "effectively control" off-premise signs in industrial and commercial areas through regulation, or, in the absence of regulations, criteria in the agreement. Agreement, § III. The Agreement provided that outside of municipalities with a population over 40,000, signs may not be located within 500 feet of an interchange, intersection at grade, or rest area, as measured "from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way." Ibid.

However, the principal sources of New Jersey's restrictions on outdoor advertising are the RSCOAA and the implementing state regulations. The Legislature expressly intended that the RSCOAA and its implementing regulations balance and promote multiple goals, including the travelling public's safety, aesthetics, economic development, and free speech. N.J.S.A. 27:5-6(a); see also N.J.S.A. 27:5-18(b). Subject to implementing regulations, the RSCOAA authorized permits for signs in zoned and unzoned commercial and industrial areas, as well as on-premise signs, that is, "[s]igns advertising activities conducted on the property on which they are located." N.J.S.A. 27:5-11(a). Permits are not required for signs advertising the sale or rent of theproperty on which the sign is located and on-premise signs that are not adjacent to the interstate or primary system highways. N.J.S.A. 27:5-12.

As noted, an "off-premise sign" "shall [not] be located within 500 feet of an interchange, intersection at grade, or safety rest area." N.J.A.C. 16:41C-8.1(d)(2). An off-premise sign is defined as anything that is not an "on-premise sign," which is "a sign that identifies the proper name of the business or place where the sign is located or which identifies an actual bona fide and principal activity, product or service . . . of the property on which the sign is located." N.J.A.C. 16:41C-2.1. An otherwise on-premise sign will be deemed an off-premise sign if it (1) generates "compensation to the property owner or to the sign owner"; or (2) principally advertises a brand or trade name that is only incidental to the premise's principal activity. Ibid.

Notwithstanding N.J.S.A. 27:5-11(a), the regulation dispenses with permits for on-premise signs. N.J.A.C. 16:41C-1.2(c). Also, the regulation imposes no distance requirements on on-premise signs. Thus, a qualified on-premise sign may exist within 500 feet of interchanges, intersections at grade, and safety service areas. DOT charges application fees of up to $200 and annual permit fees of up to $635 for each off-premise billboard. N.J.A.C. 16:41C-7.1, -7.2.

Consistent with 23 C.F.R. 750.154, the New Jersey regulation provides that "directional signs" must not be "within 2000 feet of an interchange or intersection at grade along a limited access highway." N.J.A.C. 16:41C-8.2(f). Although the regulation does not expressly identify how to measure the 2000-foot distance, we infer it is from the point of pavement widening, as in 23 C.F.R. 750.154. A "directional sign" contains "directional information about publicly owned places, natural phenomena, historic, cultural, scientific, educational, and religious sites; or areas of natural scenic beauty or naturally suited for outdoor recreation, deemed, by the Commissioner, to be in the interest of the traveling public." N.J.A.C. 16:41C-2.1; see also N.J.A.C. 16:41C-8.2(a). These signs are significantly smaller than billboards and are limited in number and distance from the destination described. N.J.A.C. 16:41C-8.2. They are exempt from fees. N.J.A.C. 16:41C-7.2(d).

The regulation also addresses a separate category of off-premises signs, "service club and religious signs," which are "signs whose erection is authorized by law, relating to the meetings of nonprofit service clubs or charitable associations or religious services." N.J.A.C. 16:41C-2.1.³ These signs must beeven smaller than directional signs and are also limited in number and distance from the organization described. N.J.A.C. 16:41C-8.3(a), (b). Like directional signs, they may not be within 2000 feet of an interchange or intersection at grade. N.J.A.C. 16:41-8.3(c). The regulation expressly states that the 2000 feet is measured from the pavement widening. Ibid. Also, like directional signs, they are not subject to fees. N.J.A.C. 16:41C-7.2(d).

B.

Hartz appealed DOT's initial permit denial on two principal grounds. First, Hartz claimed that the regulatory scheme was arbitrary and capricious "as applied" to it for not considering the unique characteristics of the road and sign. Relying on an expert's...