E&J Equities, LLC v. Board of Adjustment of the Township of Franklin and Township of Franklin , 437 N.J. Super. 490 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2432-12T3
E&J EQUITIES, LLC,
a New Jersey limited
liability company, APPROVED FOR PUBLICATION
Plaintiff-Respondent, October 17, 2014
v. APPELLATE DIVISION
BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF FRANKLIN,
Defendant-Respondent,
and
TOWNSHIP OF FRANKLIN,
Defendant-Appellant.
________________________________________________________________
Submitted March 4, 2014 – Decided October 17, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Docket No. L-1526-10.
DeCotiis, FitzPatrick & Cole, LLP, attorneys
for appellant (Louis N. Rainone, of counsel;
Jason D. Attwood and Victoria A. Flynn, on
the briefs).
Francis P. Linnus Law Office, attorneys for
respondent E&J Equities, LLC (Mr. Linnus, of
counsel; Benjamin T. Wetzel, on the brief).
Respondent Board of Adjustment of the
Township of Franklin has not filed a brief.
The opinion of the court was delivered by
ESPINOSA, J.A.D.
Concerned that inconsistencies in its regulation of
billboards exposed it to possible legal liability, defendant
Township of Franklin (the Township) began a two-year process to
adopt a new ordinance. During that deliberative process, the
Planning Board (the Board) considered whether to permit digital
multiple message billboards, receiving information from
plaintiff E&J Equities (E&J) and other sources. Concluding that
a determination whether to permit a digital billboard was best
made within the context of an application for a conditional
variance, the Board proposed and the Township adopted Ordinance
No. 3875-10 (the Ordinance), which prohibited such billboards.1
After E&J's application for a variance to erect an electronic
billboard was denied, it commenced this litigation, challenging
the constitutionality of the Ordinance and the denial of its
application for a variance.
1
Various terms, such as digital, LED, electronic, multi-
message, and Commercial Electronic Variable Message Signs
(CEVMS), are used to describe the nature of the billboards
subject to the Ordinance's prohibition.
2 A-2432-12T3
The trial court affirmed the denial of the variance,
finding the Township's decision to deny E&J's application was
not arbitrary, capricious or unreasonable. The court also
rejected E&J's equal protection argument. But, relying upon
language in Bell v. Township of Stafford, 110 N.J. 384 (1988),
the trial court found the Ordinance's ban violated the First
Amendment. The sole issue presented by the Township's appeal is
whether the Ordinance's ban on digital billboards passes
constitutional muster. For the reasons that follow, we conclude
that it does.
I
"[T]he right to free speech is not absolute and is subject
to reasonable limitations." Besler v. Bd. of Educ. of W.
Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 570-71
(2010). In Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981), the Supreme Court
acknowledged the challenge of "applying the broad principles of
the First Amendment to unique forums of expression," stating,
"[e]ach method of communicating ideas is 'a law unto itself' and
that law must reflect the 'differing natures, values, abuses and
dangers' of each method." Id. at 500-01, 101 S. Ct. at 2889, 69
L. Ed. 2d at 810-11 (quoting Kovacs v. Cooper, 336 U.S. 77, 97,
69 S. Ct. 448, 459, 93 L. Ed. 2d 513, 528 (1949) (Jackson, J.,
3 A-2432-12T3
concurring)). Like the Court in Metromedia, "[w]e deal here
with the law of billboards." Id. at 501, 101 S. Ct. at 2889, 69
L. Ed. 2d at 811.
Signs "pose distinctive problems that are subject to
municipalities' police powers." City of Ladue v. Gilleo, 512
U.S. 43, 48, 114 S. Ct. 2038, 2041, 129 L. Ed. 2d 36, 42 (1994).
"Unlike oral speech, signs take up space and may obstruct views,
distract motorists, displace alternative uses for land, and pose
other problems that legitimately call for regulation." Id. at
48, 114 S. Ct. at 2041, 129 L. Ed. 2d at 42-43. Accordingly,
billboards are the subject of federal, state and local
regulation.
Consistent with the Supreme Court's observation regarding
the nature of signs, both Congress2 and our Legislature3 have
2
In enacting the Federal Highway Beautification Act, 23
U.S.C.A. 131, Congress declared its finding that
the erection and maintenance of outdoor
advertising signs, displays, and devices in
areas adjacent to the Interstate System and
the primary system should be controlled in
order to protect the public investment in
such highways, to promote the safety and
recreational value of public travel, and to
preserve natural beauty.
[23 U.S.C.A. § 131(a) (emphasis added).]
4 A-2432-12T3
identified the promotion of safety on the highways and the
preservation of natural beauty as interests to be served in
their regulation of billboards.
All roadside signs in New Jersey are subject to conditions
and restrictions established by N.J.S.A. 27:5-9. "Off-premise
multiple message signs," such as the one E&J sought to erect,
are subject to additional conditions. N.J.A.C. 16:41C-8.8(a)(1)
requires an application and a permit specific to that use when
the off-premise multiple message sign would be visible to a
highway. The regulation states that, provided the conditions
(continued)
3
The Legislature described its purpose in enacting the Roadside
Sign Control and Outdoor Advertising Act (Roadside Sign Act),
N.J.S.A. 27:5-5 to -28, as follows:
In order to balance the promotion of the
safety, convenience and enjoyment of travel
on the highways of this State with the
protection of the recreational value and
public investment therein, to preserve and
enhance the natural scenic beauty and
aesthetic features of the highways and
adjacent areas while promoting development
and economic vitality and facilitating the
flow of speech and expression, of which
providing messages of commercial, public and
social value conveyed through the medium of
roadside signs and outdoor advertising is an
important part, roadside signs and outdoor
advertising shall be regulated by this act.
[N.J.S.A. 27:5-6(a) (emphasis added).]
5 A-2432-12T3
enumerated in N.J.A.C. 16:41C-8.8(a) are met, the Department of
Transportation (NJDOT) "shall grant permission" for the use.
Because N.J.S.A. 27:5-9.1 provides that, after NJDOT issues the
permit, any billboard "to be erected on or above any State
right-of-way . . . shall be subject to local government zoning
ordinances[,]" it is evident N.J.A.C. 16:41C-8.8(a) establishes
threshold requirements that must be satisfied without limiting
the authority of local government to further regulate
billboards. We therefore turn to the Township's effort to do
so.
II
In February 2008, the Board began the process of revamping
the Township's regulation of billboards by authorizing the
Zoning Officer to prepare a draft billboard ordinance. Over the
following year, the drafting of the Ordinance was a matter of
discussion at the Board's meetings. Input was received from
both the Land Use and Open Space Committee and the Township's
Environmental Commission. Plaintiff engaged actively in the
deliberative process, appearing before the Board to discuss a
lighting study supporting its position that LED lighting was
appropriate, and even submitting a suggested ordinance for the
Board's consideration.
6 A-2432-12T3
Minutes and memoranda from the various meetings reflect the
Board's consideration of digital billboards and the impact of
the size and placement of billboards along Interstate 287 (I-
287) upon driver safety, as well as the Environmental
Commission's concerns regarding the glare from billboards onto
residential properties and that billboards not be visible from
residential properties. At the direction of the Land Use and
Open Space Committee, the draft ordinance was revised to include
a ban on variable message and electronic signage throughout the
Township. One memo noted the draft ordinance's "rather unique
requirement," reducing the maximum distance of billboards from
the highway, which was intended to reduce overall tree removal
and the likelihood that billboards would be visible from local
roadways.
In January 2009, Mark Healey, the Township's Director of
Planning, reported to the Board regarding: his survey of
existing billboards; potentially acceptable locations along
Route 27 and I-287; and potential location, bulk, and design
requirements. Healey recommended against allowing billboards on
Route 27 because most of the area under consideration there had
been developed and placement in front of existing businesses
"would significantly detract from community character." He
advised further that if the Board wanted to consider locations
7 A-2432-12T3
on Route 27, a few commercially zoned locations might be
appropriate because "they are either undeveloped or have
features (e.g., transmission tower or industrial use) that
already detract from the aesthetics of the area." As to
potential design restrictions, the memo recommended against
permitting billboards to "rotate, move, produce noise or smoke,
give the illusion of movement, display video or other changing
imagery, automatically change or be animated or blinking."
The Board submitted a draft zoning ordinance to the Mayor
and Council in April 2009. The accompanying memo reports that
the Board "spent four worksession meetings on the proposed
ordinance and did a field visit to assess potential impacts."
The Board determined that permitting billboards along I-287
would be the most appropriate means of addressing potential
First Amendment claims on the part of billboard companies. The
memo discussed the Board's reasoning:
The draft ordinance was carefully crafted to
minimize impact to the character of
Franklin, particularly to the residential
properties on the north side of I-287. For
example, the ordinance would: limit the
number of potential billboards; require that
billboards be a certain distance apart;
would limit their height and size; and would
NOT allow billboards adjacent to the
residential properties along the north side
of I-287 (i.e., billboards would ONLY be
permitted on the industrially-zoned land on
the opposite side of I-287).
8 A-2432-12T3
Specifically addressing the issue of digital billboards,
the memo stated:
It should be noted that the Board spent a
good amount of time discussing whether to
permit LED billboards in the ordinance. In
the end, the Board decided that it would be
best to not permit LED billboards in the
Ordinance. This was done because the Board
felt that it did not have enough information
or sufficient expertise to craft ordinance
language to appropriately address LED
billboards. The Board, however, did not
make a determination whether LED billboards
would be inappropriate. If a billboard
company wanted to pursue a LED billboard,
the Board felt that the more proper forum
for that discussion was before the Zoning
Board of Adjustment where sworn testimony by
expert witnesses would be provided and where
specific conditions could potentially be
placed on its operation.
In language similar to the declarations of policy
underlying federal and state legislation, the stated purpose of
the Ordinance is "to balance the need to control and regulate
billboards, promote and preserve the scenic beauty and character
of the Township, provide for the safety and convenience of the
public, and to recognize certain Constitutional rights relative
to outdoor advertising." The Ordinance permits a conditional
use of static billboards in an area approximately 2000 feet long
9 A-2432-12T3
fronting on I-287 in the M-2 zone, but prohibits all digital and
electronic billboards:4
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 blinking, nor shall any
billboard or portion thereof have any
electronic, digital, tri-vision or other
animated characteristics resulting in an
automatically changing depiction.
[Franklin Twp., N.J., Ordinance 3875-10 §
112-53.1(c)(3) (2010) (emphasis added).]
Both the Ordinance and N.J.A.C. 16:41C-8.7(b)(3) require a
minimum of 1000 feet between billboards. Since the M-2 zone
fronting I-287 is approximately 2000 feet long, the net result
is that the Ordinance permitted the construction of three static
billboards in that area. Because N.J.A.C. 16:41C-8.8(a)(5)
requires a minimum of 3000 feet between multiple message signs,
only one digital billboard would be permitted in the Township if
4
The Ordinance contains other restrictions relevant to
aesthetics and traffic safety. The Ordinance prohibits any
billboard from being "painted with, or composed of, any material
of a fluorescent, phosphorescent, or holographic material,"
§ 3.C.6, or from displaying "pornographic or sexually indecent
and/or obscene pictures, depictions, or images[.]" § 3.C.7. In
addition, § 3.C.8 prohibits any billboard from displaying "words
or symbols that connote[] traffic control commands, including
but not being limited to 'STOP' or 'DANGER' or which may be
confused as a sign displayed by a public authority."
10 A-2432-12T3
the ban against electronic and digital billboards was eliminated
from the Ordinance.
III
When the Board began to consider the adoption of an
ordinance governing billboards in 2008, E&J applied to NJDOT
pursuant to N.J.S.A. 27:5-8 for a permit to erect an electronic
multimessage billboard for off-site advertising on its property,
which is located in the M-2 zone, with 389 feet fronting on the
north side of I-287. This is an industrial district, across
from a cemetery, adjacent to a large manufacturing facility with
land to the rear zoned for further large manufacturing or
warehouse uses. The proposed electronic billboard was oriented
to I-287. A residential development lies across the highway,
with the closest home approximately 500 feet away from the
proposed sign. The proposed billboard consisted of two panels
measuring 48' by 14' each, arranged in a V-shape for visibility
to both the northbound and southbound lanes of I-287. The
electronic panels would display static images in eight-second
intervals without scrolling, flashing, or animation.
After the permit was issued by NJDOT in May 2009, the
proposed electronic billboard remained subject to the Township's
zoning ordinances. N.J.S.A. 27:5-9.1. The Township had not yet
adopted the Ordinance at issue here. In September 2009, E&J
11 A-2432-12T3
applied to the Board of Adjustment for a use variance under
N.J.S.A. 40:55D-70(d)(1). Hearings on E&J's application were
held on February 4, April 1, and June 3, 2010. The Ordinance
was adopted prior to the last hearing. E&J then amended its
application to request a variance pursuant to N.J.S.A. 40:55D-
70(d)(3) (the D-3 variance) to permit construction of the
electronic billboard. The Board of Adjustment denied its
application.
E&J filed a four-count complaint in lieu of prerogative
writs, alleging the prohibition of digital billboards in the M-2
zone violated both the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. E&J did not challenge any other restriction
contained in the Ordinance. In addition, the complaint alleged
the Board had acted arbitrarily, capriciously and unreasonably
in denying its application for a variance, and that the Township
acted ultra vires in adopting the Ordinance.
IV
At the bench trial that followed, evidence was presented
about the character of the Township. Approximately forty-seven
square miles, Franklin Township is the second largest
municipality in Somerset County. It is a highly diverse
community that includes urban, suburban, rural, and economic
12 A-2432-12T3
development areas. I-287 runs through the northwest section of
the Township, passing through the M-2 industrial zone where
large corporate structures and manufacturing facilities are
located. However, over forty percent of the Township is zoned
for very low density and over 8,000 acres are publicly or
privately preserved.
John T. Chadwick, IV, E&J's planning expert, testified,
"The town has been very aggressive in preserving farmland and
acquiring open space." However, Chadwick opined that the
prohibition of any digital billboard in the zone would not
advance the unique beauty and character of the Township because
the particular zone was an industrial district, rather than a
rural or historic neighborhood, and because the closest home is
500 feet across the highway.
Jonathan Slass, a principal of E&J, testified that the
digital billboard would serve traditional advertisers, small
businesses, political advertisers, and nonprofit organizations.
In addition, a block of time would be controlled by the Township
for public service announcements as police emergencies.
Among the other witnesses E&J presented, an employee of a
digital sign manufacturer testified about the safety of digital
billboards and the advantage of being able to instantly change
messages to serve the public interest. A licensed professional
13 A-2432-12T3
engineer testified there was "no conclusive evidence to suggest
that digital billboards relate to an increase in accidents or
have a direct correlation on [sic] driver safety." On cross-
examination, the engineer admitted the methodology of the
studies she relied upon has been subject to criticism.
Testifying as an expert in planning for the Township,
Healey stated the Ordinance was adopted to update the Township's
signage regulations and create a comprehensive regulation of
outdoor advertising while preserving the Township's community
character and aesthetics. Healey testified that the ban on
digital billboards was consistent with the intent to preserve
the Township's character for several reasons: (1) digital
billboards tend to be brighter and have an appearance of being
much more crisp in resolution; (2) the Township had a reasonable
concern about having a digital billboard of almost 700 square
feet at a gateway into the township; and (3) since the Ordinance
would permit three billboards in the M-2 zone, there could be
two static billboards in the M-2 zone in addition to a digital
billboard if the ban was invalidated.
In response to the argument that a digital billboard would
provide a means of instantly communicating emergency messages,
Healey testified that the Township had the ability to do so
without the use of digital billboards. There are two signs on
14 A-2432-12T3
the stretch of land along I-287, placed by NJDOT, that have been
used for Amber Alert and Silver Alert messages. In contrast to
the size and characteristics of the proposed digital billboard,
the signs are less than 100 feet square, with an amber color
display on a black background and do not scroll. In addition,
the Township has a "reverse 9-1-1" calling system it uses to
alert residents when there is flooding. Residents are also able
to sign up to receive "email blasts" from the Township when
necessary.
The trial judge concluded that the Township's decision to
deny E&J's application for a D-3 variance to erect the digital
billboard was not arbitrary, capricious, or unreasonable. The
trial judge also rejected E&J's equal protection argument,
finding that the Township had demonstrated a rational basis for
the distinction between digital and static billboards. Citing
Greenberg v. Kimmelman, 99 N.J. 552, 563 (1985), the judge
stated:
The Township's concern with the impact of
digital billboards on community aesthetics,
as well as the lack of conclusive evidence
regarding the impact of the billboards on
traffic safety, provides at least some
rational basis for enactment of the ban on
digital billboards. While plaintiff asserts
that the evidence indicates no such impact
is likely to occur, it cannot be denied that
digital billboards, at minimum, create
visual stimuli different than that of a
traditional billboard. By the mere fact
15 A-2432-12T3
that the images change, there is the chance
that the digital billboard could possibly
impact community aesthetics or traffic
safety.
Despite these findings, the trial judge invalidated § 112-
53.1(c)(3) of the Ordinance, concluding that the digital
billboard ban violated the First Amendment.
In its appeal, the Township argues that the trial court
erred in applying an intermediate scrutiny standard to the
Ordinance and that, instead, the court should have determined
whether the Township's adoption of the Ordinance was arbitrary,
capricious or unreasonable. Alternatively, the Township argues
that because the ordinance is content-neutral, it should be
reviewed pursuant to the time, place, and manner standard set
forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct.
2746, 105 L. Ed. 2d 661 (1989).
Because this appeal calls for our review of the "trial
court's interpretation of the law and the legal consequences
that flow from established facts," we conduct a de novo review.
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). We agree with the trial court that a time, place, and
manner review is appropriate here. But, we part company with
the trial court in its reliance upon Bell. Although the
language used is similar to that of the test identified in Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct.
16 A-2432-12T3
3065, 82 L. Ed. 2d 221 (1984), the trial court's application,
relying upon Bell, required the Township to meet standards not
required in the review of content-neutral time, place and manner
restrictions.
V
The Township's argument that the Ordinance enjoyed a
presumption of validity that could only be overcome by evidence
that its regulation was arbitrary, capricious, or unreasonable
lacks merit because "the regulation of billboards implicates
fundamental First Amendment rights." CBS Outdoor, Inc. v.
Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J.
Super. 563, 587 (App. Div. 2010). Our view is in harmony with
federal precedent.5 "Billboards are a well-established medium of
communication" that have both "communicative and
noncommunicative aspects." Metromedia, supra, 453 U.S. at 501-
5
Because we ordinarily interpret our State Constitution's free
speech clause, N.J. Const. art. I, ¶6, to be no more restrictive
than the First Amendment to the United States Constitution, "'we
rely on federal constitutional principles in interpreting the
free speech clause of the New Jersey Constitution.'" Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) (quoting
Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998)),
cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770(1999)); see also Bell, supra, 110 N.J. at 393. Two exceptions
to the general rule, not applicable here, are political
expression at privately-owned-and-operated shopping malls, N.J.
Coal. Against War in the Middle E. v. J.M.B. Realty Corp., 138
N.J. 326 (1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 133
L. Ed. 2d 25 (1995), and defamation, Sisler v. Gannett Co., 104
N.J. 256 (1986).
17 A-2432-12T3
02, 101 S. Ct. at 2889-90, 69 L. Ed. 2d at 811 (plurality
opinion). "[T]he government has legitimate interests in
controlling the noncommunicative aspects of the medium, but the
First and Fourteenth Amendments foreclose a similar interest in
controlling the communicative aspects." Id. at 502, 101 S. Ct.
at 2890, 69 L. Ed. 2d at 811 (citation omitted). "Because
regulation of the noncommunicative aspects of a medium often
impinges to some degree on the communicative aspects, it has
been necessary for the courts to reconcile the government's
regulatory interests with the individual's right to expression."
Ibid.; see also Ladue, supra, 512 U.S. at 48, 114 S. Ct. at
2042, 129 L. Ed. 2d at 43. We conduct "a particularized inquiry
into the nature of the conflicting interests at stake here,
beginning with a precise appraisal of the character of the
ordinance as it affects communication." Metromedia, supra, 453
U.S. at 503, 101 S. Ct. at 2890, 69 L. Ed. 2d at 812.
As we have noted, the Ordinance did not ban all billboards,
only one feature of billboards that is unrelated to the content
of any message. To be precise, the practical effect of the ban
was to prohibit electronic multi-messaging on a single billboard
in the Township. In sum, it is essentially undisputed that a
"time, place or manner" analysis is appropriate.
18 A-2432-12T3
VI
Under the applicable standard, time, place or manner
restrictions are valid, provided they satisfy three criteria:
(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." Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,
105 L. Ed. 2d at 675; Clark, supra, 468 U.S. at 293, 104 S. Ct.
at 3069, 82 L. Ed. 2d at 227; see also McCullen v. Coakley, ___
U.S. ___, ___, 134 S. Ct. 2518, 2529, 189 L. Ed. 2d 502, 514
(2014); Hill v. Colorado, 530 U.S. 703, 725-26, 120 S. Ct. 2480,
2494, 147 L. Ed. 2d 597, 617 (2000); Besler, supra, 201 N.J. at
570; In re Atty Gen.'s "Directive on Exit Polling: Media & Non-
Partisan Pub. Interest Grps.", 200 N.J. 283, 304 (2009);
Hamilton Amusement Ctr., supra, 156 N.J. at 267-68.
Although the trial court found the Ordinance to be a time,
place and manner restriction, it did not apply the standard
identified in Ward and Clark for the review of content-neutral
time, place and manner restrictions. Instead, the court relied
heavily upon our Supreme Court's decision in Bell, and concluded
that the Township had failed to supply "a factual basis
demonstrating that the Ordinance's ban on only
19 A-2432-12T3
digital/electronic billboards serves a legitimate government
interest and is narrowly drawn to advance its government
interests." The trial court's reliance upon Bell was misplaced
on both legal and factual grounds.
The ordinance in Bell created a township-wide ban on
billboards. In contrast, here, the Township has not banned all
billboards. In addition to those billboards erected before it
was adopted, the Ordinance permits the erection of three
billboards in the M-2 zone. As we have noted, there has been no
challenge to the Ordinance on the ground that it unreasonably
limits the number or location of billboards.
Unlike the explicit statements of reasons for the
Township's action here, borne out by a supporting history, the
challenged ordinance in Bell failed to reveal any "governmental
objectives or its factual underpinnings," and the record was
"almost completely devoid of any evidence concerning what
interests of Stafford are served by the ordinance and the extent
to which the ordinance has advanced those interests." 110 N.J.
at 396. Because the ordinance encroached upon a fundamental
right, the Court rejected the municipality's argument that its
ordinance was entitled to a presumption of validity, and
analyzed the constitutionality of the ordinance based upon its
total prohibition of a form of expression. Id. at 395-96.
20 A-2432-12T3
It is also telling that Bell did not engage in an analysis
of a content-neutral time, place, and manner restriction on
expression pursuant to the standard applied in both Clark,
supra, 468 U.S. at 293, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227,
and City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), a standard
that has since been applied by our courts in reviewing such
regulations.6 E.g., Hamilton Amusement Ctr., supra, 156 N.J. at
267-68. Instead, the Court applied the Central Hudson7 test
relied upon by the plurality in Metromedia which governs the
review of restrictions on commercial speech that are not
content-neutral. Bell, supra, 110 N.J. at 392-98. The four-
part Central Hudson test requires that (1) the commercial speech
"must concern lawful activity and not be misleading," (2) the
asserted governmental interest must be substantial, (3) the
regulation must "directly advance[] the governmental interest
asserted," and (4) the regulation must not be "more extensive
than is necessary to serve that interest." Cent. Hudson, supra,
447 U.S. at 566, 100 S. Ct. at 2351, 65 L. Ed. 2d at 351.
6
Ward was decided after Bell.
7
Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447
U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341, 351
(1980).
21 A-2432-12T3
However, when the government regulates "features of speech
unrelated to its content," it is afforded "somewhat wider
leeway." McCullen, supra, ___ at ___, 134 S. Ct. at 2529, 189
L. Ed. 2d at 514. The level of scrutiny we apply 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 itself. See id. at
___, 134 S. Ct. at 2529, 189 L. Ed. 2d at 514-15.
Since Bell, our courts have recognized that the standard
governing the regulation of commercial speech8 that is not
content-neutral and the standard applicable to time, place, and
manner restrictions, are often "closely intertwined," and have
even applied both tests simultaneously. See Hamilton Amusement
Ctr., supra, 156 N.J. at 268 (citing City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 46, 54-55, 106 S. Ct. 925, 928,
8
The primary use of the billboard here is for commercial
speech, i.e., "expression related solely to the economic
interests of the speaker and its audience." Cent. Hudson, supra,447 U.S. at 561, 100 S. Ct. at 2349, 65 L. Ed. 2d at 348. Such
speech, "proposing a commercial transaction," id. at 562, 100 S.
Ct. at 2349, 65 L. Ed. 2d at 348, may be subject to stricter
regulations than non-commercial speech. State v. DeAngelo, 197
N.J. 478, 485 (2009); see also Metromedia, supra, 453 U.S. at
512-15, 101 S. Ct. at 2895-96, 69 L. Ed. 2d at 818-19 (plurality
opinion concluding that ordinance met constitutional guidelines
"insofar as it regulated commercial speech," but was
unconstitutional because of its restrictive impact on non-
commercial speech); Barry v. Arrow Pontiac, Inc., 100 N.J. 57,
72 (1985).
22 A-2432-12T3
932, 89 L. Ed. 2d 29, 37, 42 (1986)); N.J. Dep't. of Labor &
Workforce Dev. v. Crest Ultrasonics, 434 N.J. Super. 34, 38
(App. Div. 2014). The analyses in these cases support our
conclusion that the trial court's interpretation imposed a
burden on the Township that is not required for content-neutral
restrictions on time, place, and manner expression. We
therefore conduct a de novo review of the application of the
Ward test to the Ordinance here.
A
Because there is no serious issue that the restriction here
is content-neutral, the first prong of the Ward test is
satisfied. Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754,
105 L. Ed. 2d at 675. However, because that factor weighs
heavily in the analysis, further discussion is merited.
Government regulation of expressive activity is content-
neutral so long as it is "justified without reference to the
content of the regulated speech." Clark, supra, 468 U.S. at
293, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227. The government's
purpose in adopting the regulation is "the controlling
consideration" in determining content neutrality. Ward, supra,491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at 675. "The
principal inquiry . . . is whether the government has adopted a
regulation of speech because of disagreement with the message it
23 A-2432-12T3
conveys." Ibid. When the regulation "serves purposes unrelated
to the content of expression," it is "deemed neutral, even if it
has an incidental effect on some speakers or messages but not
others." Ibid.; see also Besler, supra, 201 N.J. at 570-71;
Hamilton Amusement Ctr., supra, 156 N.J. at 268.
On its face, the Ordinance does not restrict any speech
based on its content. The restriction at issue applies with
equal force, regardless of the content of the speech. E&J did
not argue and the trial court did not find that the Township's
motivation in adopting the Ordinance was anything other than its
stated interests in aesthetics and traffic safety. Although the
trial court concluded that those interests were not sufficiently
advanced by the digital billboard ban, it is undisputed that the
Township's purpose, the "controlling consideration," Ward,
supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at
675, was to serve its interests in aesthetics and traffic
safety. The Ordinance plainly meets the definition of a
content-neutral regulation.
Further, the restriction relates only to the format in
which the communication is delivered – by way of a digital
billboard as opposed to a static billboard. Even if the digital
delivery system may be considered "expressive and part of the
message delivered," the regulation remains a restriction on the
24 A-2432-12T3
manner of expression, see Clark, supra, 468 U.S. at 294, 104 S.
Ct. at 3069, 82 L. Ed. 2d at 227-28, and is therefore governed
by the standard applicable to restrictions on the time, place,
or manner of expression.
E&J agrees that a time, place and manner analysis applies
here. However, somewhat incongruously, it also contends that
the ban on digital billboards "constitutes a non-content neutral
restriction on plaintiff's planned and non-commercial speech,"
and "discriminate[s] between forms of non-commercial speech."
In support of the latter argument, E&J states that while certain
non-commercial messages could be adequately presented on a
static billboard, emergency public service announcements such as
Amber Alerts cannot be communicated through that medium.
E&J's effort to elevate the ban on digital billboards to a
content related restriction lacks any merit. As we have noted,
a restriction on speech that serves purposes unrelated to the
content of the speech is "deemed neutral, even if it has an
incidental effect on some speakers or messages but not others."
Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d
at 675.
Moreover, "the First Amendment does not guarantee the right
to employ every conceivable method of communication at all times
and in all places." Vincent, supra, 466 U.S. at 812, 104 S. Ct.
25 A-2432-12T3
at 2132, 80 L. Ed. 2d at 791 (citing Heffron v. Int'l Soc. for
Krishna Consciousness, 452 U.S. 640, 647, 101 S. Ct. 2559, 2564,
69 L. Ed. 2d 298, 306 (1981)). In Clark, demonstrators who
wanted to call attention to the plight of the homeless
challenged a ban on sleeping in national parks. 468 U.S. at
289, 104 S. Ct. at 3067, 82 L. Ed. 2d at 224. Rejecting their
constitutional claim, the Court stated, "That sleeping . . . may
be expressive and part of the message delivered by the
demonstration does not make the ban any less a limitation on the
manner of demonstrating, for reasonable time, place, or manner
regulations normally have the purpose and direct effect of
limiting expression but are nevertheless valid." Clark, supra,
468 U.S. at 294, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227-28. In
Vincent, supra, 466 U.S. at 810, 104 S. Ct. at 2131, 80 L. Ed.
2d at 790, the challenged ordinance also prohibited a "medium of
expression," the posting of signs on public property. In
upholding the constitutionality of the ordinance, the Supreme
Court stated, "it is the tangible medium of expressing the
message that has the adverse impact on the appearance of the
landscape. . . . [T]he substantive evil -- visual blight -- is
not merely a possible byproduct of the activity, but is created
by the medium of expression itself." Ibid.26 A-2432-12T3
Here, the Township justifies its prohibition of digital
billboards based on its interest in aesthetics and traffic
safety, "without reference to the content of the regulated
speech." See Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,
105 L. Ed. 2d at 227. Even if the use of an electronic multi-
message is considered a form of expression, the incidental
effect of the Ordinance's ban on announcements to be
communicated in eight-second segments does not strip the
Ordinance of its content neutrality. We therefore turn to the
remaining criteria and their application here.
B
The second prong of the Ward test is that the regulation
must be "narrowly tailored to serve a significant governmental
interest." Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,
105 L. Ed. 2d at 675. This requires us to determine first,
whether there is such a governmental interest and second,
whether the regulation is "narrowly tailored" to serve that
interest.
The burden of proving a "substantial government interest"
is not a heavy one. Hamilton Amusement Ctr., supra, 156 N.J. at
270-71. A zoning ordinance "need not articulate its
objectives," id. at 271 (citing Zilinsky v. Zoning Bd. of
Adjustment, 105 N.J. 363, 371 (1987)), or produce "empirical
27 A-2432-12T3
data . . . accompanied by a surfeit of background information."
Id. at 271 (quoting Fla. Bar v. Went for It, Inc., 515 U.S. 618,
628, 115 S. Ct. 2371, 2378, 132 L. Ed. 2d 541, 552 (1995)). To
satisfy this burden, the evidence must "provide a rational,
objective basis from which a reviewing court can ascertain the
existence of a substantial governmental interest underpinning
the legislation," Twp. of Cinnaminson v. Bertino, 405 N.J.
Super. 521, 535 (App. Div.), cert. denied, 199 N.J. 516 (2009),
and will be sufficient if "whatever evidence the [legislative
body] relies upon is reasonably believed to be relevant to the
problem" addressed. Hamilton Amusement Ctr., supra, 156 N.J. at
270 (quoting Renton, supra, 475 U.S. at 51-52, 106 S. Ct. at
931, 89 L. Ed. 2d at 40). Such support may come in the form of
"reference to studies pertaining to other jurisdictions,
legislative history, consensus, and even common sense." Id. at
271.
The government interests identified here were aesthetics
and traffic safety. It is universally recognized that
government has a legitimate, even substantial, interest in
preserving the aesthetics of its community and in promoting
traffic safety. See Metromedia, supra, 453 U.S. at 507-08, 101
S. Ct. at 2892, 69 L. Ed. 2d at 815 (noting that "traffic safety
and the appearance of the city . . . are substantial
28 A-2432-12T3
governmental goals"). Further, there is little dispute that
billboards, of any type, are widely considered to have a
negative impact upon aesthetics and traffic safety. See
Vincent, supra, 466 U.S. at 808, 104 S. Ct. at 2130-31, 80 L.
Ed. 2d at 789 (stating it is not speculative to recognize that
posted signs, like billboards, can be perceived as an "esthetic
harm"); Metromedia, supra, 453 U.S. at 508-09, 101 S. Ct. at
2893, 69 L. Ed. 2d at 815-16 (stating "as a matter of law that
an ordinance which eliminates billboards designed to be viewed
from streets and highways reasonably relates to traffic
safety"); Susan C. Sharpe, "Between Beauty and Beer Signs": Why
Digital Billboards Violate the Letter and Spirit of the Highway
Beautification Act of 1965, 64 Rutgers L. Rev. 515 (2012).
Here, the Ordinance explicitly stated the purpose for its
regulation of billboards was "to balance the need to control and
regulate billboards, promote and preserve the scenic beauty and
character of the Township, provide for the safety and
convenience of the public, and to recognize certain
Constitutional rights relative to outdoor advertising." See
Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 34 (1st
Cir. 2008) (finding that the city's "stated justifications
plainly constitute significant governmental interests").
29 A-2432-12T3
Turning to the evidence relied upon by the Township, we
note the record includes repeated statements from the
Environmental Commission of its concerns regarding the glare
from billboards onto residential properties and its urging that
billboards not be visible from residential properties. Healey's
recommendations to the Board regarding locations for billboards
reflected concern as to whether placement "would significantly
detract from community character," or have little effect because
of existing conditions at the site.9 Healey also testified that
specific attributes of digital billboards, such as their
increased crispness and brightness, and the possible placement
with additional static billboards, were relevant to the decision
to adopt a ban. The Township also offered excerpts from the
NJDOT, Bureau of Safety Programs, Summary of Crash Rates on
State and Interstate Highways in Route and Milepost Order for
9
The fact that E&J's billboard would be placed on a section of
I-287 which is already industrialized does not detract from the
Township's stated interest in preserving aesthetics. In
Interstate Outdoor Advertising, L.P. v. Zoning Board of Mt.
Laurel, 706 F.3d 527, 532 (3d Cir. 2013), the Court of Appeals
rejected a similar argument, stating, "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."
30 A-2432-12T3
2006 through 2009;10 Jerry Wachtel, A Critical, Comprehensive
Review of Two Studies Recently Released by the Outdoor
Advertising Association of America (Final Report 2007), and
excerpts from a publication of the United States Department of
Transportation, The Effects of Commercial Electronic Variable
Message Signs (CEVMS) on Driver Attention and Distraction: An
Update, Federal Highway Administration, Publication Number FHWA-
HRT-09-018 (2009) (USDOT Report).11 The last of these studies
concluded it was important to conduct "carefully controlled and
methodologically sound" research because the available studies
were inconclusive in "demonstrating detrimental driver safety
effects due to CEVMS exposure." USDOT Report at 7.0
Conclusions.
The recognized need for further studies on the impact of
such billboards, along with the Township's stated reasons,
provides a rational, objective basis for the Township's decision
to refrain from adopting a regulation of them. In all, the
record establishes that the Township relied on evidence
"reasonably believed to be relevant to" the interest identified
10
The full reports for 2006 through 2009 are available at
http://www.State.NJ.US/transportation/refdata/accident (last
visited Oct. 2, 2014).
11
The report is available at
http://www.fhwa.dot.gov/real_estate/oac/possible_effects/ (last
visited Oct. 2, 2014).
31 A-2432-12T3
in the Ordinance's stated purpose. See Hamilton Amusement Ctr.,
supra, 156 N.J. at 270. It is further evident from the
Ordinance's declaration of purpose, its drafting history and the
proofs presented at trial that the Township's stated interests
in the regulation here were authentic and not a subterfuge for
an improperly motivated restriction on expression. We are
satisfied that the Township presented adequate proof of a
substantial government interest for the regulation.
Under the Ward standard our Supreme Court applies, there
are two components to the "narrowly tailoring" requirement: (1)
the regulation must promote a substantial government interest
that would be achieved less effectively without the regulation,
and (2) the restriction must not "burden substantially more
speech than is necessary to further" the State's content-neutral
interest. Ward, supra, 491 U.S. at 798-800, 109 S. Ct. at 2757-
58, 105 L. Ed. 2d at 680-81.
The government's determination as to whether a content-
neutral regulation "promotes a substantial government interest"
will ordinarily be entitled to our deference. "'The validity of
[time, place, or manner] regulations does not turn on a judge's
agreement with the responsible decisionmaker concerning the most
appropriate method for promoting significant government
interests' or the degree to which those interests should be
32 A-2432-12T3
promoted." Id. at 800, 109 S. Ct. at 2758, 101 L. Ed. 2d at 681
(quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.
Ct. 2897, 2907, 86 L. Ed. 2d 536, 548 (1985)).
Turning to the requirement that the restriction be narrowly
drawn, the trial court found the ban on digital billboards was
more expansive than necessary to "preserv[e] aesthetics and
traffic safety," relying upon Bell, supra, 110 N.J. at 396-97,
for the proposition that an ordinance's restriction must be "the
least restrictive means of advancing its legitimate government
interest."
It is, however, clear that a regulation need not be "the
least restrictive means" to satisfy the requirement that a
content-neutral restriction on time, place, and manner be
"narrowly tailored." In Ward, which was decided after Bell, the
United States Supreme Court squarely addressed this question,
stating:
Lest any confusion on the point remain, we
reaffirm today that a regulation of the
time, place, or manner of protected speech
must be narrowly tailored to serve the
government's legitimate, content-neutral
interests but that it need not be the least
restrictive or least intrusive means of
doing so. Rather, the requirement of narrow
tailoring is satisfied "so long as the . . .
regulation promotes a substantial government
interest that would be achieved less
effectively absent the regulation." To be
sure, this standard does not mean that a
time, place, or manner regulation may burden
33 A-2432-12T3
substantially more speech than is necessary
to further the government's legitimate
interests. Government may not regulate
expression in such a manner that a
substantial portion of the burden on speech
does not serve to advance its goals. So long
as the means chosen are not substantially
broader than necessary to achieve the
government's interest, however, the
regulation will not be invalid simply
because a court concludes that the
government's interest could be adequately
served by some less-speech-restrictive
alternative.
[Ward, supra, 491 U.S. at 798-800, 109 S.
Ct. at 2757-58, 105 L. Ed. 2d at 680-81(internal citations and quotations omitted)
(emphasis added).]
See also Clark, supra, 468 U.S. at 299, 104 S. Ct. at 3072, 82
L. Ed. at 230 (rejecting the proposition that the challenged
regulation was invalid because there were "less speech-
restrictive alternatives that could have satisfied the
Government interest."). Thereafter, in Board of Trustees v.
Fox, 492 U.S. 469, 477-78, 109 S. Ct. 3028, 3033-34, 106 L. Ed.
2d 388, 402 (1989), the Court again clarified:
We have refrained from imposing a least-
restrictive-means requirement -- even where
core political speech is at issue -- in
assessing the validity of so-called time,
place, and manner restrictions. We uphold
such restrictions so long as they are
"narrowly tailored" to serve a significant
governmental interest, a standard that we
have not interpreted to require elimination
of all less restrictive alternatives. . . .
In requiring that to be "narrowly tailored"
to serve an important or substantial state
34 A-2432-12T3
interest, we have not insisted that there be
no conceivable alternative, but only that
the regulation not "burden substantially
more speech than is necessary to further the
government's legitimate interests." And we
have been loath to second-guess the
Government's judgment to that effect.
[(Internal citations omitted).]
See also Regan v. Time, Inc., 468 U.S. 641, 657, 104 S. Ct.
3262, 3271, 82 L. Ed. 2d 487, 500 (1984) (plurality opinion)
("The less-restrictive-alternative analysis . . . has never been
a part of the inquiry into the validity of a time, place, and
manner regulation.").
Since Bell was decided, our Supreme Court has had the
opportunity to declare whether our Constitution demands that a
challenged regulation satisfy a "least restrictive means" test
and instead reaffirmed its reliance "on federal constitutional
principles in interpreting the free speech clause of the New
Jersey Constitution." Hamilton Amusement Ctr., supra, 156 N.J.
at 264. Addressing the "narrowly tailored" requirement, our
Supreme Court explicitly relied upon the standard set forth in
Ward, stating, "to satisfy Central Hudson and the narrow
tailoring requirement of Clark,[12] the regulation need not be
12
Finding the restriction of signage in sexually oriented
businesses in N.J.S.A. 2C:34-7c was content-neutral and that the
purpose of the statute was to regulate commercial speech,
Hamilton Amusement Ctr., supra, 156 N.J. at 266-68, the Court
(continued)
35 A-2432-12T3
the least restrictive means of serving the State's content-
neutral substantial interest." Id. at 277 (emphasis added)
(citing Ward, supra, 491 U.S. at 797, 109 S. Ct. at 2757, 105 L.
Ed. 2d at 679). The appropriate standard requires only that
"the means chosen does not 'burden substantially more speech
than is necessary to further' the State's content-neutral
interest." Ibid. (quoting Ward, supra, 491 U.S. at 799, 109 S.
Ct. at 2758, 105 L. Ed. 2d at 681). Here, too, the government's
decision as to how to achieve its objective is afforded some
deference.
What our decisions require is a "'fit'
between the legislature's ends and the means
chosen to accomplish those ends," -- a fit
that is not necessarily perfect, but
reasonable; that represents not necessarily
the single best disposition but one whose
scope is "in proportion to the interest
served," that employs not necessarily the
least restrictive means but . . . a means
narrowly tailored to achieve the desired
objective. Within those bounds we leave it
to governmental decisionmakers to judge what
manner of regulation may best be employed.
[Fox, supra, 492 U.S. at 478-480, 109 S. Ct.
at 3033-35, 106 L. Ed. 2d at 402-04(internal citations omitted) (emphasis
added).]
(continued)
determined the restriction should be examined simultaneously
under both the time, place and manner test articulated in Clark,
and the test applicable to the regulation of commercial speech
that is not content-neutral set forth in Central Hudson. Id. at
268.
36 A-2432-12T3
"'It is not [the] function [of the Court] to appraise the wisdom
of [the governmental regulation because the government] . . .
must be allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems.'" Hamilton Amusement
Ctr., supra, 156 N.J. at 278 (quoting Renton, supra, 475 U.S. at
52, 106 S. Ct. at 931, 89 L. Ed. 2d at 42).
The fact that the Ordinance bans all digital billboards
does not preclude a finding that the Ordinance is "narrowly
tailored." In Vincent, the Court concluded that an ordinance's
complete ban on signs was "narrowly tailored" because the
ordinance "did no more than eliminate the exact source of the
evil it sought to remedy," visual clutter. 466 U.S. at 808, 104
S. Ct. at 2130, 80 L. Ed. 2d at 789. See also Fox, supra, 492
U.S. at 478, 109 S. Ct. at 3033-34, 106 L. Ed. 2d at 402 ("[W]e
have been loath to second-guess the Government's judgment" as to
whether the regulation does not "burden substantially more
speech than is necessary to further the government's legitimate
interests."); Interstate Outdoor, supra, 706 F.3d at 532 ("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
37 A-2432-12T3
billboard ban directly advances a local government's interests
in traffic safety and aesthetics.")
The "source of the evil" the Township sought to remedy was
the heightened intrusive quality of digital billboards,
affecting the aesthetics of the town and the residential area
nearby, and a not unreasonable unease that the digital
billboards would have a negative impact upon traffic safety.
The ban on digital billboards was no broader than was necessary
to eliminate that heightened intrusive quality. Moreover, the
ban was adopted within an Ordinance that permitted billboards in
the Township under conditions not otherwise challenged here.
The record here shows that the Township clearly stated its
objectives for the Ordinance, that it considered the concerns
expressed and information received during the deliberative
process, and that other provisions in the Ordinance serve the
same objectives of traffic safety and aesthetics. These facts
all support the conclusion that the ban on digital billboards
"represents a reasoned compromise between serving the
[Township's] asserted goals and allowing some" billboards in the
Township. See Hamilton Amusement Ctr., supra, 156 N.J. at 278-
79. We are therefore satisfied that the second prong was met.
38 A-2432-12T3
C
The third prong requires that the restrictions imposed by
the regulation "leave open ample alternative channels for
communication of the information." Ward, supra, 491 U.S. at
791, 109 S. Ct. at 2753, 105 L. Ed. 2d at 675. See also Heffron
v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 654, 101
S. Ct. 2559, 2567, 69 L. Ed. 2d 298, 311 (1981). "[A]
restriction on expressive activity may be invalid if the
remaining modes of communication are inadequate." Vincent,
supra, 466 U.S. at 812, 104 S. Ct. at 2132, 80 L. Ed. 2d at 791.
To assess the adequacy of remaining modes of communication, we
focus upon the advantage of the restricted means of expression
and determine whether "these same advantages cannot be obtained
through other means."13 Ibid.The advantage to an electronic multi-message billboard is
that a message may be posted or changed in short order. E&J
admits that the lion's share of the commercial speech to be
projected on its proposed billboard does not require this
advantage. The only type of message identified as being
13
While there may be differences between the cost and potential
audience of the alternatives and the proposed digital billboard,
that does not render the alternative avenues of communication
inadequate. See Interstate Outdoor, supra, 706 F.3d at 535;
Naser Jewelers, supra, 513 F.3d at 37.
39 A-2432-12T3
adversely affected by the loss of this advantage is emergency
public service announcements. Healey testified that other means
were available to satisfy this need. Signs posted by NJDOT on
I-287 were used to provide Amber alerts and Silver alerts; the
Township has a "reverse 9-1-1" calling system and a system for
sending "email blasts" to residents when necessary.
The means identified by Healey may reasonably be viewed as
comparable to that provided by digital billboards in providing
public service information on an emergent basis. And, because
the audience who can receive communications through the proposed
digital billboard is limited to motorists on a limited stretch
of I-287, the alternative means are clearly superior in terms of
their ability to reach the residents of the Township. We
therefore conclude that "ample alternative channels for
communication of the information" are left available by the
Ordinance, satisfying the third prong of the Ward test.
Reversed.
40 A-2432-12T3