Agenda - Planning Commission - 01/08/2015

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Zoning Bulletin December 10, 2014 1 Volume 8 1 Issue 23 was unconstitutional in violation of free speech rights under the First Amendment to the United States Constitution. The Background/Facts: E & J Equities ("E & J") sought to erect an electronic multimessaging billboard for off-site advertising on its prop- erty in the Township of Franklin (the "Township"). Township Ordi- nance No. 3875-10 (the "Ordinance") prohibited such billboards. Specifically, the Ordinance provided: No billboard or billboard display area or portion thereof shall rotate, move, produce noise or smoke, give the illusion of movement, display video or other changing imagery, automatically change, or be animated or blink- ing, nor shall any billboard or portion thereof have any electronic, digital, tri -vision or other animated characteristics resulting in an automatically changing depiction. E & J applied for a variance to erect the electronic billboard. The Township denied the variance application. E & J then brought a legal action, challenging the constitutionality of the Ordinance and the denial of its application for a variance. Among other things, E & J argued that the Ordinance's ban on electronic billboards violated the First Amend- ment to the United States Constitution, which protects freedom of speech. The trial court found that the Ordinance's ban on electronic billboards violated the First Amendment. The Township appealed. DECISION: Judgment of superior court reversed. The Superior Court of New Jersey held that the Ordinance's ban on electronic billboards did not violate the First Amendment. The court explained that, unlikeoral speech, billboards are the subject of federal, state, and local regulation because they "pose distinctive problems that are subject to municipalities' police powers"—such as taking up space, obstructing views, and distracting drivers. Restrictions on billboards are constitutional if they meet scrutiny standards. The level of scrutiny applied depends on whether the restriction is a content - neutral regulation of the time, place, or manner of the speech or whether it is a restriction on the content of the speech. In its appeal, the Township had argued that the trial court erred in ap- plying an intermediate scrutiny standard to the Ordinance. Among other things, it maintained that because the Ordinance was content -neutral, it should have been reviewed pursuant to a time, place, and manner analysis. E & J had agreed that a time, place, and manner analysis applied here. However, E & J had also contended that the Ordinance's ban on digital billboards "constitute[d] a non -content neutral restriction on [E & J's] planned and non-commercial speech," and thus was subject to a stricter scrutiny standard. E & J argued that content such as emergency © 2014 Thomson Reuters 7