Agenda - Planning Commission - 09/02/1997

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Page 2 - August 10, 1997 Z.B. ! Signs - Does township's ban on neon violate sign owners' free speech? Sate v. Calabria, Gillette Liquors, 693 A.2d 949 (New Jersey) 1997 Calabria, Country Kitchen, and Gillette Liquors were all businesses in Long Hill Township, N.J. In 1996, they were charged with violating the township's ordinance regulating signs. Each business had signs illuminated with neon tubing. According to the ordinance, "No sign shall be lighted by using unshielded incandescent bulbs or neon tubes, mirrors reflecting a direct light source or similar devices." The ordinance didn't define neon signs, but generically referred to them as signs constructed out of tubed material with gas or powder that lit up when electrified. Other types of illumination, however, were permitted for signs. In court, the businesses challenged the ordinance's constitutionality. They gave reasons why they used the signs and compared photographs of their signs with others in the township to support their argument. Though acknowledging that they used neon signs, the businesses argued the township could not prove their signs were neon because the ordinance did not provide a definition of "neon." The township's zoning expert testified the ordinance wasn't arbitrary, that it had been the product of years of planning and soliciting public comment, and that it had its roots in earlier ordinances dating back to 1974. In their testimony, the expert and the town's zoning officer both described neon signs as tubing filled with powder or gas that illuminated when electricity was applied. The township apparently banned neon to keep the area from having an undesirable "highway look." When asked what the differences were between neon signs and other large, existing signs in contributing to the "highway look," the expert replied, "It all depends." After hearing testimony at the trial, the court upheld the ordinance's consti- tutionality and found each business violated the ordinance. The businesses appealed, claiming the ordinance violated their right to free speech and due process, the ordinance was unconstitutionally vague and over- broad, and that because the ordinance affected a fundamental right, it could not be presumed valid. They also claimed they weren't guilty of the violations. DECISION: Convictions reversed. The convictions had to be reversed, but not for all the reasons the busi- nesses claimed. There was no question the businesses' signs were neon. The ordinance didn't have to spell out the definition of a commonly understood object. The township's zoning expert and zoning officer both agreed on the definition of neon, and the businesses themselves admitted their signs were neon. The ordinance didn't violate the businesses' right to commercial speech. The Constitution protected commercial speech, but municipalities could regulate the time, manner, and place of that speech. In this situation, the ordinance wasn't restricting the speech of the signs; it was merely regulating the sign's illumina- tion. Besides, the businesses had several other alternatives for presenting their signs. What was not immediately certain, however, was whether the ordinance served a significant government interest. While the township could validly lO~