The case of Interstate Outdoor Advertising, LP v. Zoning Board of the Township of Mount Laurel, et al., decided February 11, 2013 by the Third Circuit Court of Appeals, calls to mind an expression commonly heard within the billboard industry: "there is law and then there is billboard law." It also prompts the thought that bad facts make bad law — here, the billboard company opportunistically sought approval at one time for nine billboard locations along Interstate 295 in New Jersey where no billboards existed. From gleaning the decision, the case below appeared to be a "go for broke" litigation for both sides with Interstate ultimately ending up as the loser. Relying exclusively on the dated MetroMedia decision, the Third Circuit affirmed the United States District Court's grant of summary judgment in favor of the Zoning Board and the Township.
Interstate had filed development applications for nine outdoor advertising sign locations along Interstate 295, which in the Mount Laurel area is a six lane limited access highway. Hearings on four of the applications were ongoing when the Township adopted an ordinance which became the subject of the challenge as it banned billboards on the basis of aesthetics and traffic safety listing a number of municipal goals and purposes. While Mount Laurel had regulated signs since 1988, the 2008 Ordinance incorporated new provisions which allowed for privately-owned signs to display both commercial and non-commercial messages and provided that enforcement of signs would be accomplished in a content-neutral fashion. After the passage of the Ordinance, Interstate filed in Federal Court alleging that the Ordinance violated the First Amendment guarantee of free speech. After discovery, Mount Laurel filed a motion for summary judgment which was granted by the District Court. The trial judge analyzed the Ordinance's constitutionality under the four-part test applicable to commercial speech that is set out in Central Hudson Gas & Electric Corp v. The Public Service Commission of NY, 447 U.S. 557 (1980). On appeal by Interstate, the Third Circuit affirmed the grant of summary judgment.
The Third Circuit acknowledged that the Mount Laurel had the burden of establishing the constitutionality of the Ordinance. In so doing, the court observed that a municipality must demonstrate a substantial governmental interest which is advanced no more extensively and necessary, and such demonstration cannot be mere speculation or conjecture. That is, here Mount Laurel must show that it presented substantial evidence which supports its interest in order to sustain the Ordinance from constitutional challenge.
In this matter, Mount Laurel submitted a traffic report prepared by the Township Engineer which surveyed 37 articles pertaining to billboards and traffic safety. The Township Engineer concluded that eliminating the number of driver distractions by not allowing billboards would advance traffic safety. There was evidence in a form of expert reports and depositions and testimony of the Township's planner who stated that Mount Laurel sign control ordinance has served to preserve the "billboard-free aesthetic charm and character for over 20 years."
Interstate countered with testimony of a traffic expert who reviewed the New Jersey Department of Transportation's accident records which demonstrated the accident rate in the area of the proposed billboards was well below what would be regarded as a hazardous condition. That expert also testified in depositions that there was no causal relationship between billboards and accidents as they were not distracting. Interstate countered the municipal planner's testimony by attempting to differentiate the heavily trafficked I-295 corridor by contending that Mount Laurel's argument on aesthetics was overblown in that there were no residential or scenic views to protect. This argument got short shrift from the appellate court which implicitly acknowledged Mount Laurel had the right to control aesthetics and safety on I-295 referring to the interstate as one of "its highways."
The appellant court pushed aside Interstate's arguments and in affirming the summary judgment order below, relied virtually exclusively on MetroMedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). In so doing, it virtually ignored the body of law amassed over the 30-year period, including Bell v. Stafford Township, 110 N.J. 384 (1988).
Interstate argued that its case should have been seen by the District Court as a classic "Battle of the Experts" for which accordingly a genuine issue of material fact existed which needed to be resolved by a finder of fact. Thus, the experts' opinions from each side should have been weighed by a fact-finder and consequently, the District Court improperly granted summary judgment.
In relying on MetroMedia, the Third Circuit relied heavily on the older court case's value judgments in the plurality opinion that billboards were plainly unattractive and therefore extremely intrusive. Therefore, the Third Circuit seized on the MetroMedia court's observation that the most effective approach is to prohibit billboards entirely if a municipality has a sufficient basis for concluding they are traffic hazards and/or unattractive. MetroMedia's "conclusion rested on 'the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety.'" Metromedia at 509. That court also stated that billboards no matter where located and however constructed can legitimately be perceived as aesthetical harmful.
Particularly troubling was the Third Circuit's conclusion that the District Court could resolve the conflicting expert testimony without a plenary hearing in the absence of a showing of bad faith. Referring to Interstate's arguments as an "academic" challenge, the Third Circuit concluded that the Ordinance survived Interstate's challenge because it advanced Mt. Laurel's substantial interest in the aesthetics of the community. Thus, the fact that the Ordinance all inclusively bans billboards, it nonetheless is not overreaching given the impact of billboards notwithstanding the very real impact on commercial speech. Thus, "we have no trouble concluding that Interstate's challenge to the validity of Mount Laurel's studies falls short of creating a genuine issue of material fact" on the issue of whether the town's legislative judgments were facially unreasonable or palpably false.
Finally, the Third Circuit rejected Interstate's argument that the Ordinance's reach was excessive because it totally prohibited billboards by noting that MetroMedia would legitimize the total ban in stating that "perhaps the only effective approach to solving the problems they create is to prohibit them." Accordingly it sustained the ordinance.
At the present time, it is not known whether Interstate will seek review by the United States Supreme Court. If it does and is successful, it would be helpful to review a case that does not necessarily reflect the growth of commercialism and the value of speech throughout the country. Wholesale reliance on MetroMedia fails to consider the collective wisdom of local legislatures throughout New Jersey and indeed the country in permitting billboards. They have found that billboards perform a highly important function of communicating ideas and informing the public all the while without endangerment to the traveling public or destabilizing the aesthetics of a community. The Third Circuit opinion fails to recognize the significant difference between the heavily traveled corridors of limited access highways such as the interstates which hardly duplicate the apparent charm and aesthetic value of a particular community. Further, the appellate court opinion does not take into account the fact that many governments have embraced billboards making public property available for them. This opinion should be reviewed and MetroMedia revisited especially in light of the affirmance of the District Court's summary judgment without a rigorous testing of Mount Laurel's claims on traffic safety and aesthetics and the dated value judgments in MetroMedia.
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