Interstate Outdoor Advertising v. Zoning Bd. of the Twp. of Cherry Hill

INTERSTATE OUTDOOR ADVERTISING Plaintiff, v. ZONING BOARD OF THE TOWNSHIP OF CHERRY HILL AND THE TOWNSHIP OF CHERRY HILL, Defendants.

Civil Action No. 08-3753

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: September 13, 2011

NOT FOR PUBLICATION

Hon. Joseph H. Rodriguez

OPINION

RODRIGUEZ, Senior District Judge:

This matter comes before the Court on Motion for Partial Summary Judgment [Dkt. No. 43] filed by Defendants Township of Cherry Hill ("Cherry Hill") and Township of Cherry Hill Zoning Board of Adjustment ("Zoning Board")(collectively "Defendants").¹ Plaintiff Interstate Outdoor Advertising ("Interstate") was denied permits to erect offsite outdoor advertising displays ("billboards") in Cherry Hill by the Zoning Board based on failure to comply with various provisions of the township's zoning ordinance ("Zoning Ordinance"). At issue is whether Cherry Hill's ZoningOrdinance restricting off site signs and billboards violates the First and Fourteenth Amendments and whether Plaintiff's have standing to bring the present action.

The Court has considered the written submissions of the parties, as well as the arguments advanced during the two hearings in this case on November 23, 2009 and July 19, 2011. For the reasons expressed below, Defendants' motion will be granted as to the First and Fourteenth Amendment claims because Interstate lacks standing to challenge the alleged constitutional violations. The Amended Complaint will be dismissed for lack of subject matter jurisdiction.

I. Background & Procedural History

A. The Parties

Interstate is a company engaged in the business of erecting and leasing outdoor advertising structures in a variety of markets, including the township of Cherry Hill, New Jersey. (Def. SMF, ¶ 1.) Cherry Hill's Zoning Board is a land use board that operates pursuant to the New Jersey Municipal Land Use Law ("MLUL"), N.J. Stat. Ann. 40:55D-1, et seq. (Id. at ¶ 2.) In 2007, Interstate filed three permit applications with the Zoning Board, seeking to erect four double-sided billboards in various locations in Cherry Hill's Restricted Industrial ("I-R") Zone along U.S. Interstate- 295 (a major transportation corridor with three lanes of traffic in each direction).² (Id. at ¶ 5.) Each proposed billboard has face dimensions of forty-eight feet by fourteen feet and total heights ranging from approximately eighty-two feet to ninety-five feet. (Id. at ¶¶ 6-7.)

B. Article XXIII & Interstate's Requests for Variances

At the time Interstate filed its permit applications, the regulation of signs within all zones was governed by Article XXIII of Cherry Hill's Zoning Ordinance. (Id. at ¶ 9.) Article XXIII prohibited all offsite signs, defined as "any sign located on a lot other than the lot occupied by the use, event or product which said sign identifies." (Id.) Article XXIII also contained various regulations limiting sign height, area, spacing, mounting requirements, and setback distances for all signs. (Id. at ¶¶ 13-14.)

Each of Interstate's proposed signs required numerous variances from Article XXIII's sign regulations. Interstate sought "use variances" under N.J.S.A. 40:55D-70(d) for relief from the prohibition against offsite signs and from the prohibition against any structure greater than thirty-five feet in height in the I-R Zone. (Id. at ¶ 12.) In addition, Interstate sought "bulk variances" under N.J.S.A. 40:55D-70(c) to permit deviation from the general sign area, height, spacing, and setback regulations, among others. (Id. at ¶¶ 13-15.) The Zoning Board held public hearings on the applications in April and June of 2008, at which time Interstate presented fact and expert witnesses in support of the requested variance relief. (Id. at ¶ 16.)

C. Ordinance 2008-6

While Interstate's applications were pending before the Zoning Board, Cherry Hill adopted an ordinance amending Article XXIII in March of 2008 ("Ordinance 2008-6"), with the purpose of clarifying its ban of offsite signs and billboards. (Id. at ¶ 18.) The ordinance was accompanied by an extensive list of reasons and justifications in support of the ban; namely the promotion of traffic safety by eliminating distractionsand the preservation of the aesthetic beauty and essential character of the township. (Def.'s Br., Moore Aff., Ex. E., "Ordinance 2008-6.")

The newly amended Article XXIII explicitly states that "[t]he purpose of a sign within the Township of Cherry Hill shall be to identify an establishment, not to advertise. Identification signs allow the principal name of the establishment or proprietor and a brief description of the principal goods or service offered." (Ordinance 2008-6, § 2301. SCOPE & APPLICATION.) Article XXIII was further amended to provide that: "Off-Site signs and Billboards are prohibited in all zones." (Id., § 2303.4.f. GENERAL REGULATIONS.) In addition, Article V, Section 511 of the Zoning Ordinance was amended to reaffirm that offsite signs and billboards, such as those erected and leased by Interstate, were prohibited in all zones:

The below listed structures and uses are prohibited in any zone . . .

5. Billboards and Off-site signs.

All uses not specifically permitted in this Ordinance are hereby prohibited.

(Id., § 511. PROHIBITED STRUCTURES AND USES.)

Article XXIII defines billboards as "a sign structure and/or sign utilized for advertising an establishment, an activity, a product, service or entertainment, which is sold, produced, manufactured, available or furnished at a place other than on the property on which said sign structure and or sign is located," and offsite signs as "any sign located on a lot other than the lot occupied by the use, event or product, which said sign identifies." (Id., §§ 2302.3, 2303.23.) However, Article XXIII also provides that"bus shelters as expressly provided by Township Council by contract or Ordinance" are excepted from the definition of offsite signs.

D. Original Complaint & First Motion for Summary Judgment

The Zoning Board ultimately denied each of Interstate's applications based on the restrictions contained in the Zoning Ordinance, as amended by Ordinance 2008-6, and as memorialized in detailed resolutions adopted by the Zoning Board in June and July of 2008. (Id. at ¶¶ 17-18.) Interstate thereafter filed three complaints in this court, challenging each of the Zoning Board's denials and alleging that Article XXIII violates the First and Fourteenth Amendment and various state laws.³ The three actions were consolidated on December 4, 2008 and Defendants filed a motion for summary judgment in March of 2009, seeking judgment in their favor as to the constitutional claims and dismissal of the pendant state law claims. Interstate argued that Defendants failed to present sufficient evidence to establish the necessary connection between the complete ban of offsite advertising and the promotion of traffic safety and aesthetics and requested additional discovery pursuant to Rule 56(f).

This court recognized that in Metromedia, Inc. v. City of San Diego, 453 U.S. 508-10 (1981), the Supreme Court expressed a willingness to accord broad deference to legislative judgment imposing restrictions on commercial speech when those restrictions seek to further substantial governmental interests in safety and aesthetics. See Interstate Outdoor Advertising v. Zoning Board of the Tp. of Cherry Hill, 672 F.Supp. 2d 675, 678 (D.N.J. 2009). However, the court stressed that when the legislature seeks to restrict free speech, conclusive statements alone cannot support the decision that an ordinance actually addresses the professed safety and aesthetic concerns. See id. at 679-81. Although Cherry Hill's interest in safety and aesthetics may be substantial in the abstract, it does not mean that a wholesale ban on all billboards and offsite sign necessarily serves that interest. See Edenfield v. Fane, 507 U.S. 761, 770 (1993). Thus, the court guided by the Metromedia Court's direction must undertake a particularized inquiry into the nature of the conflicting First Amendment interest at stake and the validity of the public interest allegedly served by the regulation. See Interstate, 672 F. Supp. 2d at 678 (citing Metromedia, 453 U.S. at 503). Without any relevant evidence regarding the basis for the complete ban of offsite signs and billboard, a diligent review of Cherry Hill's reasoning was impossible at that time. As a result, the motion was administratively terminated pending the completion of discovery.

E. Ordinance 2010-28

In November of 2010, Cherry Hill adopted Ordinance 2010-28, which further amended Article XXIII. (Moore Aff., Ex. S, "Ordinance 2010-28.") The new ordinance significantly expanded Article XXIII's Statement of Purpose with a fourteen-point clarification of the aims sought to be furthered by the sign regulation:

A. . . . the purpose of this Article is to promote the public health, safety, and general welfare through reasonable, consistent, and non-discriminatory sign standards. The sign regulations in this Article are not intended to censor speech or to regulate viewpoints, but instead are intended to regulate the secondary effects of speech, and, especially, insofar as those secondary effects may adversely affect aesthetics and traffic and pedestrian safety. In order to preserve and enhance the Township as a desirable community inwhich to live and do business, a pleasing, visually attractive environment is of foremost importance. The regulation of signs within the Township is a highly contributive means by which to achieve this desired end. These sign regulations have been prepared with the intent of enhancing the visual environment of the Township and promoting its continued well-being, and are intended to:

1. To promote the free flow of traffic and protect pedestrians, bicyclists and motorists from injury and property damage caused by, or which may be fully or partially attributable to cluttered distracting, or illegible signs.

2. To promote the use of signs that are

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