U.S. THIRD CIRCUIT

Interstate Outdoor Advertising L.P. v. Zoning Board of Mount Laurel

LAND USE AND PLANNING

New Jersey Law Journal

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Interstate Outdoor Advertising L.P. v. Zoning Board of Mount Laurel, No. 11-3837; Third Circuit; opinion by McKee, U.S.C.J.; filed February 11, 2013. Before Judges McKee, Jordan and Vanaskie. On appeal from the District of New Jersey. [Sat below: Judge Kugler.] DDS No. 26-8-xxxx [14 pp.]

Interstate Outdoor Advertising L.P. filed four development applications with the Mount Laurel Township Zoning Board of Adjustment seeking approval to erect nine outdoor advertising signs along U.S. Interstate-295. While the applications were pending, the Mount Laurel Township Council adopted Ordinance 2008-12, which prohibits the erection of outdoor advertising displays.

At the public hearings on its applications, Interstate presented expert testimony on the aesthetic suitability of the proposed billboards and their negligible impact on traffic safety. Despite that testimony, the zoning board denied the applications.

Interstate then filed this suit alleging that the ordinance violated the First Amendment guarantee of free speech. The district court granted Mount Laurel's motion for summary judgment, holding that the ordinance was a reasonable means of achieving the township's substantial interests in traffic safety and the township's aesthetics.

This appeal followed.

Held: Mount Laurel has satisfied its burden of establishing that the challenged ordinance is a reasonable means of achieving the township's substantial interests of traffic safety and maintaining the natural beauty of the township. The district court's grant of summary judgment is affirmed.

The court first notes that Interstate's billboards are entitled to the protection of the First Amendment. Accordingly, the ordinance can only withstand Interstate's challenge if it serves a substantial governmental interest and is no more extensive than necessary to advance that interest.

Mount Laurel presented extensive evidence to support its contention that the ordinance directly advances the township's goals of traffic safety and aesthetics, including a report from its traffic engineer that reviewed 37 articles pertaining to billboards and traffic safety and concluded that limiting the number of driver distractions would advance traffic safety.

In opposition, Interstate's traffic expert testified that the accident rate in the area of the proposed billboards was well below that which would indicate a hazardous location and that several studies indicate that there is no causal relationship between the presence of billboards and accidents.

On appeal, Interstate claims Mount Laurel's studies merely establish a correlation, not causation, between billboards and traffic accidents. It also argues that the locations where it seeks to post billboards are heavy industrial zones and that the concern about preserving aesthetics is therefore overblown. It argues that the testimony it offered created a genuine issue of material fact that had to be resolved by a fact finder, rather than at the summary judgment stage.

The court says Interstate's position ignores the context in which this issue is presented. Metromedia Inc. v. City of San Diego, 453 U.S. 490 (1981), explained that each method of communication has its own set of laws. In the context of billboards, Metromedia deferred to the collective judgment of both legislatures and lower courts, and highlighted the importance of considering the plainly unattractive nature of billboards when evaluating whether a ban directly advances a local government's interests in traffic safety and aesthetics. The court says the force of the deference the court afforded San Diego's judgments regarding aesthetics and safety is controlling here. That some of the studies can be challenged academically in no way undermines that deference.

The court also says the industrial nature of the highway does not mitigate Mount Laurel's concerns about aesthetics. In fact, it may suggest an even greater need to guard against the deterioration of its character and evoke a greater concern for safety.

Moreover, the court says that even if it were to assume that Interstate has raised a genuine issue of material fact as to whether Mount Laurel's traffic studies establish the requisite causal relationship that Mount Laurel claims, it would still conclude that the ordinance would survive the challenge because it advances the township's substantial interest in the aesthetics of the community, relying on Metromedia's statement that given their nature, billboards can be perceived of as an esthetic harm.

The court says that neither the attack on Mount Laurel's studies nor Interstate's contrary evidence would allow a reasonable fact finder to conclude that there was an insufficient basis for Mount Laurel's conclusion that its billboard ban would directly advance its stated goal of improving the community's aesthetics.

Moreover, given the language of Metromedia, the court is not willing to conclude that there is a genuine issue of material fact as to whether the ordinance sufficiently advances traffic safety. The 37 studies that Mount Laurel relied on cannot be said to be insufficient, even when viewed in conjunction with Interstate's expert testimony and studies. The conclusion that billboards affect traffic safety and aesthetics is neither "facially unreasonable" nor "palpably false."

The court also rejects Interstate's claim that the ordinance is excessive because it institutes a total ban of billboards. It cites Metromedia's reasoning that if the city has a sufficient basis for believing that billboards are traffic hazards and unattractive, perhaps the only effective approach to solving the problems they create is to prohibit them. The township took that approach.

Finally, the court looks to the ordinance's limit on noncommercial speech. It says such regulations are constitutional if they are justified without reference to the content of the regulated speech, serve a significant governmental interest, and leave open ample alternative channels for communication of the information. It concludes the ordinance satisfies these criteria.

For appellant — Louis L. D'Arminio and Reginald Jenkins (Price, Meese, Shulman & D'Arminio). For appellees: Mount Laurel Township — Christopher J. Norman (Raymond, Coleman, Heinold & Norman) and George J. Botcheos; Mount Laurel Zoning Board — Anthony P. Costa.

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