The New Jersey Superior Court Appellate Division Upholds Municipal Ban On Animated Billboards

The New Jersey Superior Court Appellate Division Upholds Municipal Ban On Animated Billboards
Riker Danzig Real Estate/Banking Alert November 2014

The New Jersey Superior Court Appellate Division Upholds Municipal Ban On Animated Billboards

A recent decision by the Appellate Division of the New Jersey Superior Court has upheld a Franklin Township ordinance banning animated billboards – i.e., billboards that contain electronic, digital, animated, moving or blinking “characteristics resulting in an automatically changing depiction.”  See E & J Equities, LLC v. Bd. of Adjustment of the Twp. of Franklin, Slip Op., Docket No. A-2432-12T3 (October 17, 2014).  The New Jersey Supreme Court was asked to review the decision on November 5, 2014.  If the Supreme Court accepts the case, which it may do within its discretion, the decision of the Appellate Division could be affirmed, modified or overturned.

By way of background, in early 2008, the Township’s Board of Adjustment began to revamp its regulation of billboards, and the ordinance was adopted in 2010, after review and comment.  The ordinance bans animated billboards, but permits “static billboards,” along an approximately 2,000 foot stretch of I-287 located in an M-2 (industrial) zone.  Because billboards must be at least 1,000 feet apart, under State regulation, the ordinance effectively permits three static billboards within the 2,000 foot strip.  In support of the ban on animated billboards, the Township cited traffic safety, aesthetic and quality of life concerns.

The plaintiff in E & J, which owns property abutting I-287 in the area at issue, requested a use variance to permit an electronic billboard with images that would change every eight seconds.  The billboard would not include scrolling, flashing or animation.  It would face a residential development on the opposite side of the highway, with the nearest house approximately 500 feet away.  In addition to requesting a use variance, the plaintiff argued that the ordinance was invalid because it violated the First Amendment’s protection of freedom of speech.

The trial court agreed that the ordinance violated the First Amendment.  In reversing, the Appellate Division held that, because the ordinance banned just one type of billboard, but permitted “static” billboards, it was a “time, place and manner” restriction on speech.  Such restrictions are permissible provided “(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.’”  Id. at 19 (quoting Ward v. Rock against Racism, 491 U.S. 781, 791 (1989)).

The court held that the ordinance met these criteria.  First, it could be justified on a content-neutral basis – i.e., concerns over traffic safety, aesthetics and quality of life.  Id. at 24.  Second, a ban was necessary to address those concerns.  Id. at 38.  Finally, with regard to alternative means of communicating information, the court considered the plaintiff’s argument that animated billboards permit “emergency public service announcements,” such as amber alerts, while static billboards do not.  In rejecting that argument, the court reasoned that alternate means of providing such announcements are already in use, such as NJDOT message boards and a system maintained by the township for sending e-mail blasts to residents.  Id. at 39-40.  (The plaintiff did not argue that commercial speech would be inhibited by the ban.)

As animated billboards have become more common and technologically feasible, it is likely that property owners will increasingly seek the ability to construct them.  Similarly, municipalities will look to address such efforts.  As the now-seminal case in New Jersey on this issue, E & J will have a significant impact on those developments, but, of course, may be superseded if the New Jersey Supreme Court weighs in.