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

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 11-3837
INTERSTATE OUTDOOR ADVERTISING, L.P.,
Appellant
v.
ZONING BOARD OF THE TOWNSHIP OF MOUNT
LAUREL and
THE TOWNSHIP OF MOUNT LAUREL
On Appeal from the United States District Court
for the District of New Jersey
(Civ. No. 09-1376)
District Judge: Hon. Robert B. Kugler
Argued: October 5, 2012
Before: McKEE, Chief Judge, JORDAN, and VANASKIE,
Circuit Judges
(Opinion filed: February 11, 2013)
LOUIS L. D’ARMINIO, ESQ. (Argued)
REGINALD JENKINS, ESQ.
Price, Meese, Shulman & D’Arminio, P.C.
Mack-Cali Corporate Center
50 Tice Boulevard
Woodcliff Lake, New Jersey 07006
Attorneys for Appellant
CHRISTOPHER J. NORMAN, ESQ. (Argued)
Raymond, Coleman, Heinold & Norman, LP
325 New Albany Road
Moorestown, New Jersey 08057
GEORGE J. BOTCHEOS, ESQ.
436 Commerce Lane, Suite A
West Berlin, New Jersey 08091
Attorneys for Appellee Township of Mount Laurel
ANTHONY P. COSTA, ESQ.
63 Warwick Road
Stratford, New Jersey 08084
Attorney for Appellee Zoning Board of the Township of
Mount Laurel
OPINION
McKEE, Chief Judge.
Interstate Outdoor Advertising, L.P. (“Interstate”)
appeals the District Court’s grant of summary judgment
dismissing Interstate’s claim that the Township of Mount
Laurel’s zoning ordinance prohibiting the erection of outdoor
advertising displays is unconstitutional. For the reasons that
follow, we will affirm the District Court’s dismissal.
I. FACTS AND PROCEDURAL HISTORY
Interstate filed development applications with the
Mount Laurel Township Zoning Board of Adjustment
(“Zoning Board”) in which Interstate requested approval for
nine outdoor advertising signs that Interstate wanted to erect
in the township along U.S. Interstate-295. I-295 is a major
transportation corridor with three lanes of traffic running
through the township in each direction. Thereafter, the
Mount Laurel Township Council adopted Ordinance 2008-
12, 1 the constitutionality of which is challenged in this case.
1
Ordinance 2008-12, titled “Prohibited signs,” states, in
relevant part:
The following signs and sign-types are
prohibited within the Township and shall not be
erected. . . .
(a) Billboards.
MOUNT LAUREL, N.J., TOWNSHIP CODE § 154-84
(2008).
2
Ordinance 2008-12 sets out a list of goals and
purposes, each of which relates either to aesthetics or traffic
safety. Although Mount Laurel has regulated the use of signs
since 1988, 2 the 2008 ordinance incorporated two new
provisions: Section 154-89, 3 which allows all privately-owned
signs to display a commercial or non-commercial message,
2
In 1988, Mount Laurel adopted Ordinance 1988-7, which
created a zoning system used to control signage. This
ordinance included a specific ban on billboards in Section
154-85, which states, in relevant part:
The following signs are prohibited in all zoning
districts:
. . . O. Outdoor advertising signs (i.e.,
billboards).
. . . S. Signs immediately adjacent to interstate
295 and the New Jersey Turnpike.
MOUNT LAUREL, N.J., TOWNSHIP CODE § 154-85
(1998).
3
Section 154-89, titled “Substitution of noncommercial
speech for commercial speech” states:
Notwithstanding anything contained in this
Section or the Code to the contrary, any sign
erected pursuant to the provision of this Section
or the Code with a commercial message may, at
the option of the owner, contain a
noncommercial message unrelated to the
business located on the premises where the sign
is erected. The noncommercial message may
occupy the entire sign face or any portion
thereof. The sign face may be changed from
commercial to noncommercial messages or
from one noncommercial message to another as
frequently as desired by the owner of the sign,
provided that the sign is not a prohibited sign or
sign-type and provided that the size, height,
setback and other dimensional criteria contained
in this Section and Code have been satisfied.
MOUNT LAUREL, N.J., TOWNSHIP CODE § 154-89 (2008).
3
and Section 154-90, 4 which provides that Ordinance 2008-12
shall be enforced in a content-neutral fashion.
When Ordinance 2008-12 was adopted, Interstate had
four billboard applications pending before the Zoning Board.
In September 2008, the Zoning Board began holding public
hearings on Interstate’s four applications. Interstate presented
expert testimony on both the aesthetic suitability of the
proposed billboards and their negligible impact on traffic
safety. Despite that testimony, the Zoning Board denied each
of Interstate’s applications.
Thereafter, Interstate filed this lawsuit alleging that
Ordinance 2008-12 violated the First Amendment guarantee
of free speech. 5 After analyzing the constitutionality of
Ordinance 2008-12 under the four-part test for commercial
speech set out in Central Hudson Gas & Electric Corp. v.
Public Service Commission of N.Y., 447 U.S. 557, 566
(1980), the District Court granted Mount Laurel’s motion for
summary judgment. The Court held that the ordinance was a
reasonable means of achieving the Township’s substantial
interests of traffic safety and maintaining the natural beauty
of the Township, that the Township enacted Ordinance 2008-
12 based upon evidence that it would advance those twin
goals, and that the ordinance was reasonably related to
achieving traffic safety and preserving aesthetics.
4
Section 154-90, titled “Content neutrality as to sign message
(viewpoint),” states:
Notwithstanding anything contained in this
Section or the Code to the contrary, no sign or
sign structure shall be subject to any limitation
based upon the content (viewpoint) of the
message contained on such sign or displayed on
such sign structure.
MOUNT LAUREL, N.J., TOWNSHIP CODE § 154-90 (2008).
5
Interstate also challenged the constitutionality of the
ordinance under the New Jersey State Constitution, and the
Township Zoning Ordinance and the Municipal Land Use
Law, N.J.S.A. 40:55D-1 et seq. Those challenges, however,
are not at issue in this appeal.
4
This appeal followed.
II. DISCUSSION
A. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final decision of a
district court pursuant to 28 U.S.C. § 1291. The District
Court had federal question jurisdiction pursuant to 28 U.S.C.
§ 1331.
We exercise plenary review over a grant of summary
judgment. Fed. Home Loan Mortg. Corp. v. Scottsdale Ins.
Co., 316 F.3d 431, 443 (3d Cir. 2003). In reviewing the
decision of the district court, we assess the record using the
same summary judgment standard used by district courts.
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.
2000). To prevail on a motion for summary judgment, the
moving party must demonstrate “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In
making this determination, [we] must view the facts in the
light most favorable to the nonmoving party and draw all
inferences in that party’s favor.” Farrell, 206 F.3d at 278(internal quotations omitted).
Because Ordinance 2008-12 concerns both commercial
and noncommercial speech, we must conduct two distinct but
related inquiries.
B. THE IMPACT ON COMMERCIAL SPEECH
Ordinance 2008-12 clearly limits Interstate’s
commercial speech. Since there is no allegation that
Interstate’s billboards are misleading or advance illegal
activity, the 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. Central Hudson, 477 U.S.
at 566.
Mount Laurel bears the burden of establishing the
5
constitutionality of Ordinance 2008-12. Bd. of Trs. of the
State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). “This
burden is not satisfied by mere speculation or conjecture;
rather, a governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites
are real and that its restriction will in fact alleviate them to a
material degree.” Edenfield v. Fane, 507 U.S. 761, 770–71
(1993) (citations omitted).
The parties agree that Mt. Laurel has a substantial
interest in both the aesthetics and safety of its highways.
However, we must also consider the “fit” between the
legislative ends and the means chosen to accomplish them.
See Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
Mount Laurel presented extensive evidence before the
District Court to support its contention that Ordinance 2008-
12 directly advances the Township’s goals of traffic safety
and aesthetics. The evidence included a December 8, 2010
report from the Mount Laurel Township Traffic Engineer that
reviewed 37 articles pertaining to billboards and traffic safety,
and concluded that limiting the number of driver distractions
would advance the goal of traffic safety. 6 The evidence also
6
These studies included: (1) the 2006 National Highway
Traffic Safety Administration Report, “The Impact of Driver
Inattention on Near-Crash/Crash Risk: An Analysis Using the
100 Car Naturalistic Driving Study Data,” which found that
23% of accidents that occur in metropolitan areas were the
result of drivers taking their eyes off the road for two seconds
or more; (2) “Forensic Aspects of Vision and Highway
Safety,” a 2001 study concluding that driving distractions that
cause drivers to take their eyes off the road are likely to result
in poor vision of the road; (3) the Madigan-Hyland Study,
which showed that 32% of accidents on the NY State
Thruway occurred on the 13% of the highway with outdoor
advertising; and (4) the Milwaukee County Stadium Variable
Message Sign Study, which showed that vehicular accidents
increased by 8% to 35% (depending on the type of crash)
immediately after a billboard was installed adjacent to
Milwaukee County Stadium on I-94. The District Court
excluded one study cited by Mount Laurel for irrelevance,
“Standards for On-Premise Signs,” by the United States Sign
6
included expert reports and deposition testimony of the
Township’s planner. The planner testified that Mount
Laurel’s sign control ordinances had effectively preserved the
“billboard free aesthetic charm and character” of the
Township for 23 years.
Interstate offered its own expert testimony to rebut the
Township’s evidence. Interstate provided testimony from a
traffic expert who explained that, according to an accident
analysis of the I-295 corridor using the New Jersey
Department of Transportation’s crash records database, the
accident rate in the area of Interstate’s proposed billboards
was well below that which would indicate a hazardous
location. 7 Interstate’s traffic expert also testified that several
studies indicate that there is no causal relationship between
the presence of billboards and accidents. 8
On appeal, Interstate questions the reliability of Mount
Laurel’s studies. Interstate claims, inter alia, that those
studies merely establish a correlation rather than causation
between billboards and traffic accidents and that the reports
rely on faulty data. 9 Lastly, Interstate argues that the
Council, as it was designed to study only on-premise signs
rather than off-premise billboards.
7
Neither Interstate nor its expert appear to have considered
the proposition that the precise reason the accident rate is so
low in these proposed locations is because there are no
billboards on those portions of the roadway.
8
The District Court noted that one of these studies, the
Virginia Tech Study, which concluded that there was no
statistical correlation between billboards and traffic accidents,
was funded by the Outdoor Advertising Research and
Education Foundation, an industry-sponsored organization.
The Court also noted that the study had numerous
methodological flaws, which was the reason another district
court deciding a similar issue of billboard safety in 2005
excluded testimony from the study’s principal investigator,
Dr. Lee.
9
Interstate maintains that the correlation is not indicative of a
safety concern because billboards are placed on highways that
have the most traffic. Thus, argues Interstate, those highways
are more prone to accidents because more vehicles use them,
7
locations where it seeks to post billboards are along the multi-
lane, heavily trafficked, Route I-295 corridor in “heavy
industrial zones” outside of any residential or scenic views,
and that Mount Laurel’s concern about preserving aesthetics
is therefore overblown.
According to Interstate, 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.
Interstate relies on Viking Yacht Co. v. Composites One LLC,
622 F. Supp. 2d 198 (D.N.J. 2009), in stating that “[h]aving
competing admissible expert testimony on a particular issue is
the epitome of a disputed issue of fact.” Id. at 203.
Moreover, Interstate points out that Mount Laurel never
challenged the admissibility of Interstate’s expert testimony.
Interstate therefore argues that the Court should have
permitted a fact-finder to weigh each side’s expert’s offerings
at trial rather than concluding that Mount Laurel was entitled
to judgment as a matter of law.
Interstate’s position ignores the context in which this
issue is presented. As the Supreme Court explained in
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981),
each method of communication has its own set of laws, and
“[w]e deal here with the law of billboards.” Id. At 501. In
Metromedia, the Court noted that it “has often faced the
problem of applying broad principles of the First Amendment
to unique forums of expression.” Id. at 500. The result is that
“[e]ach method of communicating ideas is a law unto itself
and that law must reflect the differing nature, values, abuses
and dangers of each method.” Id. at 501 (internal quotations
omitted). Billboards, by their very nature, are capable of
communicating a vast array of messages to a very large
segment of the public. “But whatever its communicative
function, the billboard remains a large, immobile, and
permanent structure which like other structures is subject to . .
. regulation.” Id. at 502 (internal quotation marks omitted)
(ellipsis in original).
In Metromedia, the plaintiffs argued that the city’s
ordinance would eliminate outdoor advertising in the City of
not because of the presence of billboards.
8
San Diego and “the First and Fourteenth Amendments
prohibit the elimination of this medium of communication.”
Id. at 503–4.
In the context of billboards, the Supreme Court has
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 billboard ban directly advances a local
government’s interests in traffic safety and aesthetics. In
rejecting the plaintiffs’ challenge to San Diego’s ordinance,
the Court explained: “[i]f the city has a sufficient basis for
believing that billboards are traffic hazards and are
unattractive, then obviously the most direct and perhaps the
only effective approach to solving the problems they create is
to prohibit them.” Id. at 508.
In Metromedia, the City of San Diego presented no
evidence that its ban on off-site commercial advertising
directly advanced the city’s stated goals of traffic safety and
aesthetics. Id. at 528 (Brennan, J., concurring). Nonetheless,
the Supreme Court concluded that the ban on billboards was
justified by concerns of aesthetics and traffic safety. Id. at
508–10. The Court’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.” Id. at 509. The Court also
recognized that “billboards by their very nature, wherever
located and however constructed, can be perceived as an
esthetic harm.” Id. at 10 (internal quotations omitted).
Moreover, there was “nothing . . . to suggest” that the
legislature’s judgments regarding traffic safety were
unreasonable. Id. at 509. The force of the deference the
Court afforded San Diego’s judgments regarding aesthetics
and safety is controlling here.
Nor are we persuaded to the contrary by Interstate’s
reliance on the industrial nature of the disputed stretch of I-
295 where Interstate wants to place its billboards. As noted
above, Interstate relies in part on the fact that the area is
already industrialized and unsightly. According to Interstate,
the Township’s interest in preserving the appearance and
preventing the aesthetic deterioration of the highway should
9
weigh less heavily on the constitutional balance. We
disagree. The industrial nature of the highway does not
mitigate Mount Laurel’s concerns about the aesthetics of the
highway. In fact, it may well suggest an even greater need to
guard against the deterioration of the Township’s character
and evoke a greater concern for safety.
Interstate attempts to distinguish the situation here
from the facts in Metromedia by relying on the substantial
evidence it presented to disprove the basis upon which the
Township enacted Ordinance 2008-12. According to
Interstate, here, unlike in Metromedia, there is something “to
suggest that these judgments are unreasonable.” Metromedia,
453 U.S. at 509. Interstate thus claims that the blind
deference to legislative judgment that Mount Laurel
advocates pursuant to the analysis in Metromedia is
inappropriate here. The argument does have superficial
appeal.
However, we do not accept that the mere presentation
of contradictory expert testimony so undermines the
legislative fit between a law’s intended ends and its practical
means that it necessarily precludes summary judgment in
favor of the township, absent a showing of bad faith. The fact
that some of the township’s studies can be challenged
academically in no way undermines the Supreme Court’s
deference to local governmental and regulatory judgments
about aesthetics and safety insofar as the placement of
billboards is concerned.
Moreover, even if we assume arguendo that Interstate
has raised a genuine issue of material fact as to whether
Mount Laurel’s traffic studies establish mere correlation of
billboard placement and accidents or the requisite causal
relationship that Mount Laurel claims, we would still
conclude that the ordinance would survive the challenge
because it advances the township’s substantial interest in the
aesthetics of the community. As the Court explained in
Metromedia:
It is not speculative to recognize that billboards
by their very nature, wherever located and
however constructed, can be perceived as an
10
‘esthetic harm.’ . . . . Such esthetic judgments
are necessarily subjective, defying objective
evaluation, and for that reason must be carefully
scrutinized to determine if they are only a
public rationalization of an impermissible
purpose.
Id. at 510. But here, as in Metromedia, “there is no claim . . .
that [the Township] has as an ulterior motive the suppression
of speech, and the judgment involved here is not so unusual
as to raise suspicions in itself.” Id. Accordingly, there is no
issue of fact as to whether the prohibition of billboards “is
directly related to the stated objective[] of . . . esthetics.” Id.
at 511. The fact that the ordinance advances that substantial
interest in a manner that, although all inclusive, is
nevertheless not overly inclusive given the impact of
billboards on a community, is sufficient to allow Ordinance
2008-12 to survive Interstate’s challenge even though it has a
very real impact on Interstate’s commercial speech.
In its reply brief, Interstate relies on both Edenfield
and Pagan v. Fruchey in arguing that the Township is
required to demonstrate specific proof that it satisfied the
Central Hudson inquiry. Edenfield, 507 U.S. at 770–71;
Pagan v. Fruchey, 492 F.3d 766, 776 n.8 (6th Cir. 2007).
According to Interstate, Metromedia does not compel
summary judgment on either the issue of traffic safety or of
aesthetics, because Mount Laurel failed to prove that
billboards are per se hazardous, or that billboards are
incompatible with the Township’s stated goals regarding
aesthetics.
However, as Chief Justice Rehnquist explained in
Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), local
governments need not generate their own site-specific studies
before enacting an ordinance:
The First Amendment does not require a city,
before enacting such an ordinance, to conduct
new studies or produce evidence independent of
that already generated by other studies, so long
as whatever evidence the city relies upon is
11
reasonably believed to be relevant to the to the
problem that the city addresses.
Id. at 51–52 (emphasis added). The fact that Mt. Laurel’s
studies are subject to academic challenge does not negate the
fact that there is nothing on this record to suggest that the
Township did not reasonably believe those studies to be
relevant to the problems it was trying to address. Rather, the
record here supports but one conclusion: Mount Laurel relied
upon evidence that directly pertained to the problems the
Township was addressing by enacting the challenged
ordinance.
Against this background, 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
as to whether Mount Laurel’s legislative judgments were
“facially unreasonable” or “palpably false.” Metromedia, 453
U.S. at 509. Even when viewed in the light most favorable to
Interstate, we readily conclude that neither the attack upon
Mount Laurel’s studies nor Interstate’s own 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 aesthetics of the community.
Moreover, given the language of Metromedia, we are
not willing to conclude that there is a genuine issue of
material fact as to whether the ordinance sufficiently
advances the substantial interest of traffic safety. Although
Mount Laurel did not undertake any site-specific studies
before enacting Ordinance 2008-12, the 37 studies that Mount
Laurel relied upon when enacting its billboard ban cannot be
said to be insufficient, even when viewed in conjunction with
Interstate’s expert testimony and studies. Mount Laurel’s
conclusion that billboards affect traffic safety and aesthetics
is neither “facially unreasonable” nor “palpably false.”
Interstate also argues that Ordinance 2008-12 is
excessive because it goes too far and institutes a total
prohibition of billboards. According to Interstate, Mount
Laurel’s goals of traffic safety and aesthetics could be
achieved with a less restrictive ordinance that allows
12
billboards in certain areas and under particular conditions.
However, as we have already explained, in Metromedia, the
Court reasoned: “[i]f the city has a sufficient basis for
believing that billboards are traffic hazards and are
unattractive, then obviously the most direct and perhaps the
only effective approach to solving the problems they create is
to prohibit them.” Metromedia, 453 U.S. at 508. Thus, the
Township took what was “perhaps the only effective
approach” to addressing its concerns for the aesthetics and
safety of its highways—a Township-wide ban on billboards.
We therefore conclude that Mt. Laurel has satisfied its
burden of establishing that Ordinance 2008-12 is not overly
extensive and that it advances substantial interests of the
township.
D. THE IMPACT ON NON-COMMMERCIAL SPEECH
As we noted earlier, the Ordinance also limits
noncommercial speech. Such regulations are constitutional
“provided that they are justified without reference to the
content of the regulated speech, that they serve a significant
governmental interest, and that in so doing they leave open
ample alternative channels for communication of the
information.” Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976);
Frumer v. Cheltenham Twp., 709 F.2d at 874, 876 (3d Cir.
1983).
This aspect of our inquiry does not require much
discussion. The text of the ordinance specifically states that it
will be applied in a content-neutral fashion, and we have just
explained that it directly advances substantial governmental
interests. Interstate alleges that the complete ban on billboard
messages does not allow for alternative channels for
communication. Specifically, Interstate argues that, although
various alternative means of communication may be
available, those means are not available to the specific target
audience of the drivers traveling on I-295 that would be
reached by the proposed billboards. Potential alternative
channels of communication include on-premise signs, internet
advertising, direct mail, radio, newspapers, television,
advertising circulars, advertising flyers, commercial vehicle
13
sign advertising, and public transportation advertising.
Interstate claims that these alternatives are inadequate
because they are limited to area residents and miss the large
numbers of people who drive through the area on the
interstate.
However, “maximizing . . . profit is not the animating
concern of the First Amendment. The fact that restrictions
prohibit a form of speech attractive to plaintiff does not mean
that no reasonable alternative channels of communication are
available.” Naser Jewelers, Inc. v. City of Concord, N.H.,
513 F.3d 27, 37 (1st Cir. 2008). Therefore, the mere fact that
Interstate will not be able to reach the distinct audience of
travelers on the particular section of I-295 that it desires to
target does not mean that adequate alternative means of
communication do not exist. That fact is underscored by the
Supreme Court’s acknowledgment that complete billboard
bans may be the only reasonable means by which a legislature
can advance its interests in traffic safety and aesthetics.
III. CONCLUSION
For the reasons set forth above, we will affirm the
District Court’s grant of summary judgment in favor of
Mount Laurel.
14