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Coastal Outdoor Advertising Group, L.L.C. v. Township of East Hanover

630 F.Supp.2d 446 (D. N.J. 2009)

ZONING;PERMITS — Where a zoning regulation would bar erection of a billboard as violative of the ordinance’s height, use, and setback provisions, it doesn’t matter whether any prior ordinances prohibiting billboards are constitutional or not.

A municipality contended that it had prohibited the erection of new billboards and that no one had engaged in outdoor advertising within the municipality in over thirty years. A sign company wished to apply for a 100-foot high billboard on a parcel abutting a highway within the municipality. The company entered into a lease with the owners of the subject parcel to build an outdoor advertising structure. The lease was contingent upon obtaining all necessary zoning permits to erect the structure. The New Jersey Department of Transportation issued a conditional permit to build a billboard after it issued the company a license to engage in outdoor advertising. The sign company hired an engineering firm to develop drawings for submission to the municipality. The engineering firm was aware of the municipality’s billboard regulations. The sign company then applied to the municipality for a zoning permit.

The municipality contended that, according to the municipality’s zoning code, the term “building,” as used in its code, included the term “structure,” and that structure encompassed billboard structures. The municipality’s director of land use sent a letter to the sign company denying its application for a zoning permit. The letter cited no authority, but simply stated “Billboard Signs are prohibited.” Rather than filing an appeal with the municipality, the sign company decided to seek a temporary restraining order and preliminary injunction to have the municipality enjoined from enforcing its sign ordinance. It claimed the municipality violated the First Amendment and similar protections under the New Jersey constitution. As a result of several consent orders, the municipality adopted a new set of sign regulations. The sign company continued the action against the municipality, challenging the alleged unconstitutionality of the old ordinance and the consequences of being denied its application under the former ordinance. First, the municipality asserted that because the proposed height, front and rear setbacks of the billboard were impermissible even under the current zoning code, the challenges were not redressible, and thus, it argued the sign company lacked standing. Second, the municipality argued that, since the proposed use constituted a “second principal structure” on the same property, another principal structure could not be built without a use variance because outdoor advertising was not a permitted use in the zone.

The Federal District Court dismissed the sign company’s action. It held that even if it were to assume that the former code was invalid, the municipality showed that its current and superseded code would otherwise prevent erection of a billboard on the property due to height, use, and setback provisions. Thus, it ruled that a decision on the merits would not redress the sign company’s alleged injury. It noted that here, the company was not challenging height, setback, and use restrictions. It further noted that record evidence demonstrated that the proposed billboard would not comply with any of the setback, height, and use restrictions and that the subject parcel itself was non-conformingly small and could not accommodate a second primary structure. The Court agreed with the municipality that, because the sign company could not show that its federal constitutional claims were redressible, the Court lacked jurisdiction to hear such claims. Although the Court found that the Third Circuit had not specifically ruled on the situation where separate, unchallenged ordinances would otherwise block construction and only one ordinance provision was at issue, it noted that the Third Circuit had held that a party seeking relief must show a “substantial likelihood” that the requested relief would remedy the alleged injury in fact. Thus, a challenger would have to prove that it would be likely that it would exercise its option to build if the suit was successful.

Applying the precedent of the prior court holdings within the Circuit, the Court concluded that there was no substantial likelihood that the sign company would be able to construct its billboard if the Court rendered a favorable decision to it because the current and former height, use, and one-principal structure per parcel regulations prohibited such construction. The Court also rejected the sign company’s claims for damages as the company’s causes of action were not redressible when the complaint was filed and because it had knowledge of the fact that the former code prohibited its contemplated billboard before it made its permit application. As to the constitutional challenge, the Court held that blanket prohibitions on billboards were not unconstitutional since they may have been the only effective way to solve the aesthetic and traffic problems that billboards create. Further, the Court rejected the sign company’s argument that the municipality’s agreement to enter into various consent orders indicated that it was admitting that the ordinance was unconstitutional. It held that the Federal Rules of Evident prohibit the introduction of consent orders as proof of liability on the merits. The Court also rejected the sign company’s argument that the ordinance was invalid because some provisions were not enforced under “unofficial policy.” It held that nothing suggested that these discretionary enforcement policies impacted the code as to billboards since no billboards were standing in the municipality. Finally, the Court declined to exercise supplemental jurisdiction over any remaining state law claims because it dismissed all claims over which it had original jurisdiction.

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