Posted by: Patricia Salkin | October 16, 2014

NJ Appeals Court Upholds Ordinance Prohibiting Digital Billboards

Defendant, Township of Franklin (the Township), began a two-year process to adopt a new ordinance. During that deliberative process, the Planning Board (the Board) considered whether to permit digital multiple message billboards. The Board proposed, and the Township adopted, Ordinance No. 3875–10 (the Ordinance), which prohibited digital billboards. After Plaintiff E & J’s application for a variance to erect an electronic billboard was denied, it commenced this litigation, challenging the constitutionality of the Ordinance and the denial of its application for a variance. The trial court affirmed the denial of the variance, finding the Township’s decision to deny E & J’s application was not arbitrary, capricious or unreasonable. However, the trial court found the Ordinance’s ban violated the First Amendment.

In determining whether the Ordinance was content neutral, the court first looked at the fact that the Ordinance did not ban all billboards, only one feature of billboards that was unrelated to the content of any message. The effect of the ban was to prohibit electronic multi-messaging on a single billboard in the Township. The court noted that under the applicable standard, time, place or manner restrictions are valid, provided they satisfy three criteria: (1) they “are justified without reference to the content of the regulated speech,” (2) “they are narrowly tailored to serve a significant governmental interest,” and (3) “they leave open ample alternative channels for communication of the information.

On its face, the Ordinance did not restrict any speech based on its content, since a restriction on speech that serves purposes unrelated to the content of the speech is “deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Furthermore, the Ordinance explicitly stated the purpose for its regulation of billboards was “to balance the need to control and regulate billboards, promote and preserve the scenic beauty and character of the Township, provide for the safety and convenience of the public, and to recognize certain Constitutional rights relative to outdoor advertising; thus, it was narrowly tailored to serve a significant government purpose. Finally, the only type of message identified as being adversely affected by the loss of this advantage is emergency public service announcements, and there were other means were available to satisfy this need. Signs posted by NJDOT on I–287 were used to provide Amber alerts and Silver alerts; the Township had a “reverse 9–1–1” calling system and a system for sending “email blasts” to residents when necessary. Since all three prongs were met, the court reversed and found the ordinance constitutional.

E & J Equities, LLC v Board of Adjustment of the Township of Franklin, 2014 WL 5285501 (NJ Sup. 2014)

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