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Interstate Outdoor Advertising v. Zoning Board of the Township of Cherry Hill

2011 WL 4073469 (U.S. Dist. Ct. D. N.J. 2011) (Unpublished)

ZONING; ORDINANCES; @SIGNS — An applicant for signage approval does not have standing to challenge the provisions of a zoning ordinance if its sign application clearly fails by reason of the applicability of an unchallenged provision of the same ordinance.

A company’s business involved erecting and leasing outdoor advertising, such as billboards. It filed applications with a municipal zoning board to erect four double-sided billboards at various locations within the municipality. At the time of its application, the municipal zoning ordinance prohibited any signs located on a property other than the property occupied by the use, event or product identified in the sign (“offsite sign”). The zoning ordinance also contained regulations limiting the height, area, spacing, setbacks, and size requirements for all signs. The sign company sought relief from the restriction against offsite signs, as well as from certain of the height, spacing, and setback requirements required for all signs. While the sign company’s application was pending, the municipality amended its zoning ordinance to clarify its justifications for banning offsite signs, including traffic safety and aesthetics. The amended ordinance stated that purpose of any sign within the municipality was to identify an establishment, not to advertise, and it prohibited off-site signs and billboards in all zones.

The zoning board denied the sign company’s application. The sign company then sued in federal court, claiming that the denials violated the First and Fourteenth Amendments of the United States Constitution, as well as violating various state laws. The zoning board moved for summary judgment. In response, the sign company argued that the zoning board had not presented sufficient evidence to establish the necessary connection between a complete ban on outdoor advertising and the promotion of traffic safety and aesthetics. It requested additional discovery. The Court administratively terminated the summary judgment motion pending the completion of discovery as to the municipality’s reasoning for banning all outdoor advertising.

The municipality then further amended its zoning ordinance by including a fourteen point clarification of the purposes behind the bar on outdoor advertising. The sign company then filed an amended complaint challenging the constitutionality of the complete ban on outdoor advertising. Again, the zoning board moved for summary judgment arguing that the sign company lacked standing because it could not demonstrate a redressable injury since its applications could be denied by constitutionally valid provisions of the zoning ordinance applicable to all signs, not just offsite signs. It also argued that, even if the sign company had standing, the zoning ordinance was constitutional because it furthered a legitimate interest in safety and aesthetics and was supported by a reasonable factual basis.

The Court noted that, in order to have standing, the sign company needed to prove: (a) an injury; (b) that the injury was caused by the municipality’s conduct; and (c) a substantial likelihood that the injury would be redressed by a favorable decision. However, the sign company would not have standing if there were other unchallenged provisions of the zoning ordinance that would independently prevent the company from constructing its billboards. The company argued that it challenged every prohibition cited by the zoning board by challenging the zoning ordinance as a whole. It claimed that the prohibitions can’t be read independently, because “they act in concert to prohibit constitutionally protected free speech.”

The Court rejected the sign company’s argument. It found that, in order to have standing, the sign company had to challenge each provision of the zoning ordinance that prevented it from constructing its billboards. The company, however, did not challenge any of the provisions that implicated typical billboards characteristics. In particular, the Court found that the sign company did not attempt to respond to the zoning board’s arguments regarding the constitutionality of the applicable sign, height, and setback provisions. It noted that even if it agreed with the sign company’s claim that it had vaguely challenged the height and setback requirements, the sign company still had no standing because it failed to challenge the ordinance’s restrictions on the number of signs. Even if the Court were to strike down each of the provisions challenged by the sign company, the zoning board would still have had a basis to reject the proposed billboards under the ordinance provisions that were not challenged.

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