# Appendix — Bell v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0744%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1001 ## Text g7 1601 Pee f Supreme Court of the United, States — IN THE Supreme Court, U.S. —— FILED October Term, 1987 MAR 19 108 JOSEPH F. SPANIOL, JR. CLERK WESLEY K. BELL, individually and d/b/a WES OUTDOOR ADVERTISING CO., Plaintiff-Appellant, vs. STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF TRANSPORTATION, an agency of the State of New Jersey, RUSSELL H. MULLEN, CLARENCE PELL, VINCENT MONTEFORTE, STOLOWSKI and NICKOLAS Defendants-Appellees. On APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. APPENDIX TO JURISDICTIONAL STATEMENT WESLEY K. BELL Plaintiff-Appellant, Pro Se P.O. Box 538 188 Route #72 Manahawkin, New Jersey 08050 (609) 597-3222 or (609) 597-0800 Betavie Times Publishing Co oy es Ratevie, VY (71 44-2000 TABLE OF CONTENTS OF APPENDIX. Page Order of the Supreme Court of the United States... la Final Judgment February 19th, 1988 on Mortgage Foreclosure on Lot 26A Block 145.............. 2a - D.O.T. Notices to Remove—Parcels #L3E1 & 2 and I eek ca Vek en oka $665 44004 5-68 5a Complaint of the United States District Court ..... lla Opinion Dated April 13th, 1987—New Jersey Superior Court Appellate Division.............. 133a Opinion Dated December 11th, 1987—New Jersey Superior Court Appellate Division.............. 147a i a sé eau 6 one eeeu sean 15la EOE OI TE occ cc ccc ccc ccccvcccsesece 155a ST ET Eg vc wecccecccecenccsnnesses 159a Deed—Steward to Bell ............. eee e eens 163a BO RI OD BE on cc ccc ccvccsnccceseccase 167a I cc cere cc tcvdsesecessneuene 17la EPO 6c ccc enceconsecvscaseeeesne 175a I cc accccacscasnceecssesceent 177a in “1 Gulpueg OZ) AQ Bemaircen “6T e810 ‘eI e6@g fT) “On c6prg “OT (OA 4 40 jUl4g) Owen / HUPY CT Octo ame eens enene oan ee-seeeee Scam. a= +. ames e- e - ——— — - — ase “el “et “tt NOILWNYOSNI aks Fey moneonsneey sem (004 1 8 19S 1 py 401039 OdA, Apog eA onew shinai “oT OfSt uED0 UAV VUE dal pxosyeis 214 HS 0005 ‘vAw “36 Adunod ‘gs ANMAHUNY “WE (Av mati, / 300115) JUepISU; 40 UO1}e907 *¢ wmoygugsodsusry yo 4deq (oped sesy) eucug ‘we sseuppy ‘8 Lester mon JO 09495 sOQUAN “S'S "BL "COO we WIM / WHA °2 UZ9~60 [Dns MVE | F9-0F-6 Od fN 3eyeev] 2TV | | UozreHON], sequins 60> ‘9 ous * a9 ‘» qemu eps 2] EK / voners *t) ‘4Od3Y SNOLLVE3dO , air 39110d 3LV1S A3SH30.M3N - e v8-TE-OT EXHIBIT #5 7la geTod eseul, “peqzeooT are seTod suoudeTs3 z1 ATeqewrxoxide wpTum uo pueT am 30 druszeumo eno quTod 9uj useq sey UOTRBOOT STUL ‘0°¢z 3SOdeTTU sQEUmRie 7; oANCH O93 AeKTEG ". ; *" ‘S. ‘. e' » } EdENE 10 BrOIEHNOGg OQINEG — BWwHHA jFuOUPPYy Apwep, Pye im pewrory eR . w ww vs AJ wa CHAE [eye wary Ssh — — om. + ‘si D°eZ aw * (SPTS tAMOS) ZL sary OB S* LIGIHXS —_ weppy owen MA Zhe > we. * > oO ufts Trea sem ‘*L°O°d ‘keexel MON JO 9343S pomrany f.renimna’ CE . wv qe Cor) 1, eervetesg cf 7S 4} ee , LUO4TE ATVNIWITIB ANIWLEV9G 391704 dIHSNMOL GEOdVIS 73a EXHIBIT #6 WES CUTDOOR ADV. CO. Manahawkin, N.J. Established 1957 P.O. Box 538 Zip 08050 609-597-3222 ~ RECEIVED FEB 25 1985 Assistant Attorney General JAMES J. CIANCIA James J. Ciancia February 25th., 1985 Assistant Attorney General Transportation Section N.J. Dept. of Transportation Hughes Justice Complex C.N. 112 Trenton, New Jersey 08625 Dear Mr. Ciancia: +Attached-ie} (W.B.) Upon receipt I will supply a copy of a survey completed by my engineer today, on Lot 8 Block 120, in Stafford Township. Your designation of this parcel is #L22B. This survey clearly shows that the billboard poles are not on State D.O.T. right-of-way. This parcei and billboard were not at issue before Judge Thompson, when she made her decision on September 28th., 1983 (see Monteforte certification attached). Your agency illegally removed the billboard at this site, in 1968 and again on September 30th., 1983 and attempted again, for a third time, to remove the re- construction on October 25th., 1984. 74a Exhibits. I have been informed that your agency has again scheduled this site for demolition on February 2é6th., 1985 (tomorrow) and I am informing you by service of this letter and attachments, that I own the lands in question and that the State has “no rightful access”’. Mr. William Anderson, senior engineer with the New Jersey Department of Transportation, is familiar with this parcel of land and is also familiar with the State’s error in the actual locating of the property lines. Mr. Anderson worked on the original survey of this site for myself, when he was employed by Thomas J. Taylor, Engineers in the 1960's. I suggest that you immediately correct your maps after the proper locating of this site. The State chose not to defend their survey in the matter of Wes Outdoor Advertising Co. v. Ole Hansen & Sons v. N.J. D.O.T., Docket No. “-25351-68 and now, to re- assert their position is barred by res judicata and collateral estoppel and in fact, my most recent survey shows that the State is incorrect. I do hope that your agency will discontinue these oppressive actions which have become evident over the years, resulting in needless court actions for both of us. Sincerely, WESLEY K. BELL Wesley K. Bell t/a WES OUTDOOR ADVERTISING CO. P.O. Box 538 188 Route #72 Manahawkin, N.J. 08050 WKBlab (609) 597-3222 Encl. cc: John Nettleton, N.J.D.O.T. Serta amen glcin Pes : Sees de, + So gear ee = 75a EXHIBIT #7 News Article with Photo, November 1, 1984 Page 1, Beacon, Thursday, November 1, 1984 Bell wins one in new billboard battle ; Tract ownership is questioned and causes delay By NEIL A. SHEEHAN News Editor MANAHAWKIN — It began almost the same way as a scene played out slightly more than a year ago but this time the results were work crew arrived at the site of a partially constructed billboard on Route 72 near the southbound exit to Route 9 and owned by former Stafford Township Mayor Wesley K. Bell. Ordered by the staie to remove pilings erected for the sign because they allegedly encroach on state property, the crew of about 15 brought with it a crane, several trucks and assorted equipment to perform the task. A State Police officer also accompanied the crew. Bell, owner of the Wes Outdoor Advertising Co., arrived at the scene as the crew was about to begin work and convinced DOT supervisor John Nettleton and State Trooper David Scalley of the Tuckerton Barracks to wait until he could obtain proof that he owned the site and that the action with him documents from his long- Txnes- Beacon photc by Nell A. Sheehan Billboard Page 6, Beacon, Thursday. November 1, 1984 Continued from pege 1 the crew had to remove the sign was incorrect because the courts had not ruled on the , “You have no notice on ferring with Nettleton, Scalley advised the crew to leave because it did not have enough proof to back up its order. He warned Bell, however, that the crew would return with a more specific order and someone familiar with the case. “The issue is when we come back next time we’re going to have the nece paperwork to do the necessary work,” Scalley said. “We'll also have court’s ruling, began rebuilding it last spring. Township officials charged that the con term legal battle with the state over Former Stafford Mayor Wesley K. Bell, owner of Wes Outdoor Advertising, searches his someone who knows more the site. Bell argued that the order records for deed to property on Reute-72 to prevent state from removing billboard pilings, Continued on pege6 = while State Police Sgt. David Scalley waits behind Bell. BEST AVAILABLE COPY 77a EXHIBIT #8 SUPERIOR COURT OF NEW JERSEY LAW DIVISION—OCEAN COUNTY WESLEY K. BELL, t/a WES OUTDOOR ADVERTISING CO., Plaintiff, vs. TOWNSHIP OF STAFFORD, a municipality in the County of Ocean, State of New Jersey, ROBERT H. MEARS, Construction Official of the Township of Stafford, and THE COUNTY OF OCEAN, Defendants. Docket No. L-048921-84 P.W. CIVIL ACTION ORDER FOR JUDGMENT This matter having been brought before the Court upon the plaintiff, Wesley K. Bell, t/a Wes Outdoor Advertising Company, having filed a Verified Complaint in Lieu of Prerogative Writ against the Township of Stafford, Robert H. Mears, the Construction Official of the Township of Stafford and the County of Ocean; and Schuman & Butz, P.A. being substituted as attorneys for plaintiff in place of Sterns, Herbert & Weinroth, P.A.; and Gilmore & Monahan, P.A. having filed an Answer on behalf of the defendant the Township of Stafford and Robert H. Mears; and Berry, Kagan, Privetera & Sahradnik having filed an Answer on behalf of the 78a Exhibits. County of Ocean; it further appearing from the record that summary judgment was granted in favor of the defendant the County of Ocean and Robert H. Mears on Count 4 of the Complaint thus removing the defendant, the County of Ocean, as a party for trial; and this matter having been brought before the Court for trial and during the course of the trial, the plaintiff moved to amend the Complaint to challenge the validity of Ordinance 85-68 which ordinance was adopted during the pendancy of this action and subsequent to Ordinance 84- 35 which was the subject matter of the Complaint; and the Court after considering the testimony of the witnesses presented at trial; and after considering the legal argument of counsel; and for good cause having been shown; It is therefore on this 14 day of March, 1986, ORDERED as follows: 1. Ordinance No. 84-35 and Ordinance No. 85-68 are constitutionally valid Ordinances and legally adopted Ordinances. 2. The plaintiff may not re-erect a billboard on Lot 26A, Block 145A. 3. The plaintiff may re-erect a billboard previously removed from Block 120, Lot 8. This Court finds that the billboard was improperly removed by the New Jersey Department of ‘Transportation and as_ such, the negligence and/or wrongdoing of the Department of Transportation, is imputed to the Township of Stafford and the Township of Stafford may not enforce its zoning ordinance prohibiting the erection of a billboard on that site. 79a Exhibits. 4. The plaintiff may not repair the existing billboard upon Block 158A, Lots 114 and 119 by relocating thereon a billboard from Lot 3, Block 181. 5. The plaintiff, before erecting a billboard on Block 120, Lot 8, shall prepare the necessary application and submit the same to the Construction Code Official, Robert H. Mears, along with a copy of a site diagram showing the location of the billboard on the subject site. 6. The Order granting a Stay in this matter signed by the Honorable Henry H. Wiley, J.S.C. on the first day of August 1984 is hereby dissolved and the plaintiff is hereby ordered to remove the utility poles, billboard face and all portions of the billboards from Block 145A, Lot 26 no later than four weeks from the date of this Order. If the plaintiff fails to remove the same, then it may be removed by the defendant, the Township of Stafford’s employees, and the costs thereof shall be paid by the plaintiff. WILLIAM J. KEARNEY, J.S.C. WJ KEARNEY 8la EXHIBIT #49 o00oe Jee oeeeeeee eacoed> oe SSSSSHSSESSSSESEOSE SEES OOEE Pin... TI neil panels APPLICATIONS OF WES OUTDOOR ABvERTINING CO. AMS EXGISTING SIGNS BEING LITIGATED a $ & APPLICATIONS ABANDONED Gy 1Oms Licinsem 10 Wes OuTBOKR ADVERTISING ce. al COMNBEMMATIONS WITHDRAWN MO CONDEMNATIOWS EVER STARTEO “2 . oS: We ° ry ws i 1’ , bea* pecccccccccccevesscosscososessssses F900 S00 0009 eorvcee ee Dawceccscscsersiee a — PARCELS R16, R17, 18C, 19C, Beez L168, LI7C, LR188, 12198, 1228, 19K; | | 1238, 1248, 139 & 40 PARCEL (48 PARCELS LI7E &170 parce. L228 parce. L2R°31D \— —-%, tema NN y MAMAN Ae Ei : \ f/ aque ee ee 83a EXHIBIT #10 IRWIN I. KIMMELMAN Attorney General of New Jersey Attorney for Defendants Richard J. Hughes Justice Complex CN 114 Trenton, New Jersey 08625 (609) 292-5709 UNITED STATES DISTRICT COURT For the District of New Jersey WESLEY K. BELL, Individually and d/b/a WES OUTDOOR ADVERTISING CO., Plaintiff, Vv. STATE OF NEW JERSEY, JOHN J. DEGNAN DOROTHY ANDRES, AND NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants. Civil Action No. 80-531 CERTIFICATION NICKOLAS F. MONTEFORTE, of full age, says: 1. On November 8, 1977, the Department of Transportation served upon Wesley K. Bell eight notices of eight separate sign encroachments on State right of way. Those notices, copies of which are attached as Exhibit “K,’’ were as follows: 84a Exhibits. GENERAL PROPERTY | PARCEL SIGN SIGN ENCROACHMENT MAP PARCEL NOS. 3SE9-86 L-11B 3SE9-87 L-22, 23 & 23B* 3SE9-88 L-4B 3SE9-89 L-17G 3SE9-90 L-17D 3SE9-91 L-22B 3SE9-92 L-22C 3SE9-93 L-2R31D 2. On December 19, 1977, Michael Malin, Esquire, attorney for Wesley K. Bell, wrote to the Department requesting that the Notices of Encroachments, copies of which are attached as Exhibit ‘‘L,’’ be withdrawn or, in the alternative, that a hearing be granted. 3. Concurrently, on or about December 19, 1977, Wesley K. Bell, through his attorney Mr. Malin, instituted Civil Action No. 77-1531 in the United States District Court. 4. Also, concurrently, the case of Bell v. Kohl was proceeding in the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-2643-73. In that action, Bell was attacking, inter alia, the constitutionality of the Eminent Domain proceeding previously instituted by the Department of Transportation against properties in which he claimed an interest. 5. Although it was the opinion of the Department that the encroaching signs were not the subject of a valid permit, and were on State property, and, therefore, * This parcel is not involved in the matter now before the Court. 85a Exhibits. were not within the purview of N.J.A.C. 16:41-8.11 with respect to the hearing entitlement provisions of N.J.A.C. 16:41-8.12, copies attached as Exhibit ‘‘M,’’ nevertheless because of the various claims presented by Mr. Bell in the civil action, it was decided that a hearing would be desirable under the circumstances. 6. Thereafter on January 10, 1978, Mr. Bell, via his attorney, Mr. Malin, was notified that a hearing would be held on January 31, 1978, copy attached as Exhibit —— 7. Subsequently, on January 17, 1978, Mr. Malin wrote to ine advising that he intended to file a motion to restrain the hearing and requesting that I agree to hold up the hearing, copy attached as Exhibit ‘‘O.”’ 8. On January 25, 1978, I replied to Mr. Malin advising him to seek adjournment from the hearing examiner and that I would not consent to it but also would not oppose his request, copy attached as Exhibit “i 9. In early January 1978, Wesley K. Bell moved in United States District Court to enjoin the hearing. 10. On January 31, 1978, at the hearing Mr. Bell, through his attorney, took the position that the Commissioner of Transportation could not proceed with the hearing and stated that the subject of the hearing was before both the United States District Court (Civil Action No. 77-1531) and the Appellate Division of the Superior Court of New Jersey (Docket No. A-3891-76). Transcript p. 6, L. 20 through p. 8, L. 20, copies attached as Exhibit ‘Q”’. 86a Exhibits. li. At the hearing, I represented the New Jersey Department of Transportation. The hearing proceeded until 4:40 p.m. on January 31, 1978. Contrary to the position taken by the plaintiff, the hearing was not adjourned because of a request made either by the Department of Transportation or me as their counsel. It was adjourned at that time due to the lateness of the hour, and because Mr. Malin had to ‘make a train.’’ (Transcript p. 129, L. 21 through p. 130, L. 9, copies attached as Exhibit ‘“‘R.”’) Former Attorney General John J. Degnan was not present at this hearing. He had been sworn in as Attorney General less than two weeks earlier. 12. The hearing was adjourned without date. To the best of my knowledge, Former Attorney General Degnan knew of neither the hearing nor the subject matter of said hearing. 13. It is my recollection that Mr. Malin did not wish the matter to resume until after he had received and read the transcript and until he had returned from a trip to the Soviet Union which he had planned to take in March of 1978. He was to contact me with respect to a continuance date for the hearing. 14. On February 8, 1978, Mr. Malin requested that the State produce certain witnesses at the next hearing date, copy attached as Exhibit ‘‘S.”’ 15. Mr. Malin’s request was denied by letter dated March 9, 1978, copy attached as Exhibit ‘‘T.”’ 16. I never heard from Mr. Malin again with respect to the hearing. I did not know when he returned from vacation, nor did he advise me that he was at any time 87a Exhibits. ready to proceed with the matter or advise me of a date on which the matter could be rescheduled. This action was consistent with the move to enjoin the hearing. 17. Once the hearing was assigned to a _ hearing examiner in December 1977, the defendant, Dorothy L. Andres, took no part in the proceedings. She neither adjourned the matter nor did she have the authority to adjourn. Further, she had nothing whatsoever to do with the rescheduling. 18. In due course, the issues which were before the hearing examiner and which according to Mr. Malin were exactly the same as those before the United States District Court and the Appellate Division of the Superior Court of New Jersey (Hearing transcript, supra) were decided in favor of the Department of Transportation by those courts. As a result of the decisions, which applied to all parcels, (except L2R31D which had not been a part of those actions) it became absolutely clear that ownership of the land was vested in the State of New Jersey, Department of Transportation. In addition, the location of the signs on the property has been admitted by Wesley K. Bell in his verified petition for temporary restraints in this action. Hence, it is clear that if the hearing were to be resumed it could reach no conclusion that has not already been decided. It is just as clear that, as a matter of law, no permit may be issued for these signs and that they must be removed. 19. Regarding parcel E31B/L2R31D, Department records revealed a deed date December 5, 1974, recorded January 8, 1975, from Egan Kahl, et al, into the State, Book 3433, Page 225, Ocean County. However, there was a previously recorded contract for sale of the same parcel 88a Exhibits. from the prior owner, Gustav Foster, to Wesley K. Bell. The contract was dated December 26, 1968, and recorded on December 30, 1968, in Book 2865, Page 400, Ocean County. Foster conveyed to Kahl, et al, by deed dated November 24, 1971, recorded February 8, 1972, in Book 3186, Page 797. It was the Department’s understanding that there had been a breach of the 1968 contract by Mr. Bell and that the contract was invalid. Nevertheless, while asserting tit’ = the E31B/L2R31D property, it was recognized taat Mr, Bell should be given the opportunity to produce uuy and all documentation to show entitlement to a perrait for the sign located on E31B/L2R31D. Both the November 13, 1979, letter, Exhibit “F’’, Andres Affidavit, and the February 5, 1980, letter, attached hereto as Exhibit ‘‘U,”’ requested that he provide this documentation. Plaintiff has failed to respond to either letter and it is submitted that no such documentation can be produced. 20. Attached for the convenience of the court are the following documents (respectively Exhibits ‘‘V"’ through BB") indicating proof of ownership of the subject parcels by the New Jersey Department of Transportation: a. Complaint, Declaration of Taking or Lis Pendens, where applicable, Order for Possession, Report of Commissioners, and, if appealed, a copy of the Judgment on Appeal for parcels L-11B, L-4B, L- 17G, L-17D, L-22B and L-22C. b. Copy of Deed dated December 5, 1974, recorded January 8, 1975, from Egan Kahl, et al, to New Jersey Department of Transportation. 89a Exhibits. , The foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment. NICKOLAS F. MONTEFORTE 9a EXHIBIT #11 IRWIN I. KIMMELMAN Attorney General of New Jersey Attorney for Defendants Richard J. Hughes Justice Complex CN 114 Trenton, New Jersey 08625 (609) 292-5709 UNITED STATES DISTRICT COURT For the District of New Jersey WESLEY K. BELL, Individually and d/b/a WES OUTDOOR ADVERTISING CO., Plaintiff, v. STATE OF NEW JERSEY, JOHN J. DEGNAN, DOROTHY ANDRES, and NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants. Civil Action No. 80-531 AFFIDAVIT OF DONALD CATTS STATE OF NEW JERSEY ) ) Ss.: COUNTY OF MERCER ) DONALD CATTS of full age, being duly sworn according to law, deposes and says: i. I am employed by the New Jersey Department of Transportation in the present capacity of Senior Engineer and have been employed by DOT for the past 19 years. 9la Exhibits. 2. During the latter part of 1977, I served as Chief of a Field Party assigned to survey the location of the Wes Outdoor Advertising Company signs which are the subject of the present action and which were also the subject of Violation Notices sent out in November, 1977. 3. As a result of that survey a map plotting of each encroachment was made on the existing State Highway Department General Property Parcel Map applicable to each parcel. 4. True and exact copies of these maps showing each parcel and its respective encroachment are attached hereto as Exhibits A through D. 5(a) Parcel L11B appears on Exhibit A: General Property Parcel Map Route 72, Section 6, Sheet 3 of 7. (b) Parcel L4B appears on Exhibit B: General Property Parcel Map Route 72, Section 7, Sheet 1 of 11. (c) Parcels L17G, L17D, L22B and L22C appear on Exhibit C: General Property Parcel Map Route 72, Section 7, Sheet 2 of 11. (d) Parcel L2R31D appears on Exhibit D: General Property Parcel Map Route 72, Section 7, Sheet 3 of 11. DONALD D. CATTS Donald Catts Sworn and subscribed before me this 2nd day of September, 1982 NICKOLAS F. MONTEFORTE Nickolas F. Monteforte An Attorney-at-Law of New Jersey 92a EXHIBIT 412 (Seal) STATE OF NEW JERSEY Department of Transportation 1035 Parkway Avenue Trenton, New Jersey 08625 In Reply Please Refer to Route: 72 Section: 7 Parcel: L2R31D Kahl, Ackaway Al Am Sagner Commissioner February 3, 1975 Mr. Michael Ackaway 368 Hilltop Road Toms River, New Jersey Dear Mr. Ackaway: The State Treasurer has issued a warrant check for $12,000.00, No. A711800, dated January 29, 1975, payable to Egon Kahl & Ede Kahl and Michael & Rita Ackaway, in settlement of the claim against the State of New Jersey by reason of the conveyance to the State of the above designated parcel. This check will be forwarded upon the disposition of the following. 1. Proof to be furnished of payment of the 1975 real estate taxes to the date of possession. 2. Bargain and Sale Deed to Be Produced: From Wesley Kenneth Bell, for easement as contained in DB3187 page 1. 93a Exhibits. 3. Notification of acceptance of possession to be furnished this office by the Bureau of Property and Relocation. This can be accomplished by notifying Mr. Paul Pearson, Freehoid, NJ, at the following telephone number: 201-431-4500. 4. The enclosed Order of Dismissal to be executed and returned to this office. Very truly yours, PAUL J. HOWARD Paul J. Howard, Supervisor 609-292-3222 Settlement Section Bureau of Titles PJH:mef Enclosure I spoke (illegible) 94a EXHIBIT #13 (Seal) State of New Jersey Department of Transportation 1035 Parkway Avenue Trenton, New Jersey 08625 In Reply Please Refer To Route: 72 Section: 7 Parcel: L2R31D Kahl, et al Al Am Sagner Commissioner March 13, 1975 Mr. Michael Ackaway 368 Hilltop Road Toms River, New Jersey Dear Mr. Ackaway: Reference is made to the easement over the subject parcel held by Westley Kenneth Bell. It is my understanding that Mr. Bell has refused to execute a deed releasing his leasehold interest into said parcel to the State of New Jersey. If Mr. Bell’s position is unchanged, this office has no other recourse but to rescind the agreement entered into between yourself, your wife, Rita, Mr. and Mrs. Kahl, and the State of New Jersey. Would you be kind enough to advise this office as to Mr. Bell’s present attitude in this matter. 95a Exhibits. If Mr. Bell refuses to release his leasehold interest, would you be kind enough to return to this office the unsigned Order of Dismissal forwarded to you under my correspondence of February 3, 1975. Enclosed for your convenience find self-addressed envelope. Very truly yours, PAUL J. HOWARD Paul J. Howard, Supervisor Settlement Section Bureau of Titles PJH:mef Enclosure 96a EXHIBIT #14 Parcel 4L2LR31D Subject—Loss of Advertising Revenue Because of State’s Refusal to Consider or Issue Advertising Permits on Subject Premises Listed Above September 1968 to September 1969 $1,400.00 $1,400.00 = $ 2,800.00 September 1969 to September 1970 $1,500.00 $1,500.00 = $ 3,000.00 September 1970 to September 1971 $1,800.00 $1,800.00 = $ 3,600.00 September 1971 to September 1972 $2,600.00 $2,600.00 = $ 5,200.00 September 1972 to September 1973 $3,000.00 $3,000.00 = $ 6,000.00 September 1973 to September 1974 $3,000.00 $3,000.00 = §$ 6,000.00 September 1974 to September 1975 $3,500.00 $3,500.00 = $ 7,000.00 Semtember 1975 to September 1976 $3,500.00 $3,500.00 = $ 7,000.00 September 1976 to September 1977 $3,600.00 $3,600.00 = $ 7,200.00 September 1977 to September 1978 $4,200.00 $4,200.00 = $ 8,400.00 September 1978 to September 1979 $4,300.00 $4,300.00 = $ 8,600.00 September 1979 to September 1980 $4,500.00 $4,500.00 = $ 9,000.00 ni © sign tn- September 1980 to September 1981 $4,500.00 potas $5,000.00 = $ 9,500.00 Chrysler sign fin- isher Oct. 12, September 1981 to September 1982 $5,000.00 1982 TOTAL LOSS OF INCOME ON THIS PARCEL $88,300.00 Interest to be added at future date of Judgment $ py ‘yuauapyjas fo aypp ay} 03 uossassod fo azpp ays wosf aud aspyosnd ay3 fo azunjnq pivdun ay} uo %,9 3 jsasazut ‘yuawuysnipp fo fom fig pamozo aq poye 4a AS 9yt way? ‘suamazyas { Ln: - 4 fh $a , ¢ IT? 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Pememy Ley pe psTeQ ee OD o@ ka peydepo eree yj oowey =. 4 ‘ Exhibits. ~07 ni unty a. | STATE OF bea tt Remembered. thot on thie ea dey of FP ’ in the year of oyf Lord one Be tt Remembered, tha on thie 26 — thousgad nine hundred and Sf, before || day of Discenthe, in the year of ove Lord die ole eta | thousand nine hundred and SSE, By Le hak who being Boome daly taco on ath satth, th Hlay|| ™ Buclame- aL Yeacggeet Q-4_ de the of || personally appeared before po the grantor within named, and t ie t President; that — STATE OF who I am satisfied Ot the grontor 2. mentioned ! deponent knows the cc op’ or corporate seal of said \ Ss | in the above Agreement and acknowledged tha Aha grantor and that the seal pQnezed to the within Agree- ment ie such — & porate seal; that oe Agrecment was signe the said resident and the seal of said gtantor affix ence of dcponent; thé said Agreeme | signed, sealed and delivered the same as thaw | act and deed. All of which is hereby certthey was signed, sealed | thereto in the pres- and delivered as afd for the voluntar~gct and deed o “tt; said grantor for uses and purposes thecgin expressed, |, SZ Vw s— pursuant to a resolution of the Board of Dirdwte of said 1 grantor; and the execution thereof thie dep sub. \ Kore’ scribed his ¢ thereto as witness. Ea Se Sworn andA bed the | My Comm ssn =, araet day agfl yeor aforesaid WLS. 6 isry | T / ~ : w = 4 é a £ Gh jee gf 734 3%. iy i O90 & ° aan a U. Cy = Mh ‘SLAC et Bie a de ChE ANd Ohh ONS SED 4506 CGRNS EH SORECSOUESCANESNN SCHEV ESONSONITIOT maha ceeeeeeeeee eee ee eeeeeeevreeeesesrageesseesresess at ta yas opunasay aay Ojas9y sarod ay} ‘303134 DD SSIUN WD UE ( quawmaasan YL ‘4aq1as 2y3 fo quasso warm eys yn safing ays fiq paudyssv aq fiow ‘ss088929NS IY} 40 8% ‘sUeMDIOd 409 240 snynd yjOq 40 42y%9 FOYR TuIaa |Yy3 UA 40 ‘s4ORDAZSFUFUEPD 40 840jNIIXO ‘sspay 90;j0adsas 4394) 40 4ay ‘sy Osp ynq ‘payoudisap fiqasays fiysod ay} fifuo you upaw 0; pup saquinu sojndus pup posnd oy? YyI0q WDIW OF PansysUO? 2q [TPYS juaweasso sys UM WIANG. PUP .ATTAS. P40 PHL —— 2 so / muon Puymonof sys sapnyous Ayooysoads ony ‘esouvusynddo pyo ‘pagysorap wyausy sPuspying 40 Buypping ays 01 peyroi Ayjusuewsad saunyry [yO Saphire pusmoese NL SO \ o oni Wang ms sof pret 99 0; 80 servtedzo Pujquoisouls Layo pun sounUNE str ‘seyoseee Ie Me AfiRenOeY oq fun fy ‘uosisys edu enuscss yj pus poop ley Jo Smowep vyx 20} hod Tey i . t 10la EXHIBIT #16 [Book 3187 Page 1] AGREEMENT THIS INDENTURE, made this 7th day of January, 1972, is made by and between EGON KAHL and EDE KAHL, his wife, residing at 239 Boyden Avenue, Maplewood, New Jersey, and HARRY C. BALDASSARRE and REINELDA BALDASSARRE, his wife, residing at Chancellor Avenue, Irvington, New Jersey, and MICHAEL ACKAWAY and RITA ACKAWAY, his wife, with a mailing address of Route #37 and Berry Avenue, Toms River, New Jersey, hereinafter designated as the Grantors, and WESLEY KENNETH BELL residing at Route #72, Manahawkin, Stafford Township, hereinafter designated as_ the Grantee, is made for and in consideration of ONE DOLLAR ($1.00) and other good and_ valuable consideration together with the mutual covenants contained herein and is made under the following terms and conditions, to wit: 1. The Grantors hereby bargain, sell, grant and convey unto the said Grantee a permanent easement across a portion of a parcel of land conveyed to the Grantors hereinabove named by deed from Gustav Foster and Margaret Foster, his wife, dated November November 24, 1971 and intened to be recorded prior to or simultaneously with the recording of this instrument. The within created easement is more particularly described in “Schedule A” which is attached hereto and made a part hereof and gives the Grantee the right to use said property for the purpose of the erection and maintenance of one double faced straight or ‘‘V’’ type bill board to be erected at the sole expense of the Grantee. The Grantee is also given the right of pedestrian and vehicular access across the property 102a Exhibits. described in ‘‘Schedule A’’ which is attached hereto for the purpose of access for maintenance and erection of said sign or bill board. 2. The within created easement is expressly subject to the condition that the Grantee must erect a bill board or sign within fifteen (15) years [Book 3187 Page 2] after the date of the execution of this agreement or the said easement, shall terminate, be null and void and of no effect whatsoever. The condition shall, however, in no way effect the right of the Grantee to enter upon the lands subject to this easement for maintenance of the said sign once it is erected. 3. The Grantee hereby agrees to pay the pro rata share of the real estate taxes which shall forthwith be assessed on the vacant land, based upon the frontage used by the Grantee and the Grantee will further agree to pay any additional taxes which may be assessed on the said sign or bill board. 3-B. (See Scheudle B attached). 4. Where ever in this instrument any party or parties shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words heirs, executors, administrators, personal or legal representative and assigns had been inserted after each and every such designation. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and_ year aforementioned. COLIN R. HAZELTONE 103a Exhibits. EGON KAHL [L.S.] Egon Kahl COLIN R. HAZELTONE EDE KAHL [L.S.] Ede Kahl HARRY C. BALDASSARRE [L.S. | Harry C. Baldassarre Reinelda Baldassarre REINELDA BALDASSARRE|[L.S.] MICHAEL ACKAWAY [L.S.] Michael Ackaway COLIN R. HAZELTONE RITA ACKAWAY [L.S.] Rita Ackaway COLIN R. HAZELTONE WESLEY KENNETH BELL [L.S.] Wesley Kenneth Bell {Book 3187 Page 3] SCHEDULE “A BEGINNING at a point in the southwesterly sideline of the present right-of-way of New Jersey Route No. 72, said point being distant south 51 degrees 45 minutes 00 seconds east 946.96 feet from the intersection of the southwesterly sideline of New Jersey Route No. 72 and the southeasterly sideline of Jennings Road (said point also being the northeasterly corner of Lot 31 in Block 147 according to the tax map of Stafford Township and running thence (1) south 32 degrees 45 minutes .00 seconds west a distance of 100 feet to a point thence (2) north 51 degrees 45 minutes 00 seconds west and parallel with the said southwesterly sideline of New Jersey Route No. 72 a distance of 25 feet to a point thence (3) north 32 degrees 45 minutes .00 seconds east and parallel with the first course hereinabove described a distance of 100 feet to a point in the said southwesterly sideline of New Jersey Route No. 72 and thence (4) south 51 degrees 45 104a Exhibits. minutes .00 seconds east along the said southwesterly sideline of New Jersey Route No. 72 a distance of 25 feet to a point said point being the point and place of beginning. [Book 3187 Page 4] “SCHEDULE B” 3-B. Grantee hereby agrees that any billboard to be erected shall not obstruct from the view of the travelling public using Route #72, a building or structure erected by Grantors or as reserved by Grantors by plan to be submitted to Grantee within fifteen (15) days of notification to Grantors of the intention of Grantee to commence the erection of said bill board, provided that both parties hereto agree that nothing contained herein shall preclude Grantee from erecting a bill board at a height of twenty (20) feet from ground level nor shall Grentee erect a bill board with its base less than twenty (20) feet from ground level. [Book 3187 Page 5} ACKNOWLEDGMENT STATE OF NEW JERSEY COUNTY OF OCEAN BE IT REMEMBERED, that on this 4th day of January, in the year of our Lord one thousand nine hundred and seventy-two, before me, the undersigned authority, personally appeared Egon Kahl and Ede Kahl, his wife, who I am satisfied are the Grantors in the within agreement and acknowledged that they signed, sealed and delivered the same as their act and deed. All of which is hereby certified. SS. COLIN R. HAZELTONE Colin R. Hazeltone An Attorney-At-Law Of New Jersey 105a Exhibits. ACKNOWLEDGMENT STATE OF NEW JERSEY COUNTY OF OCEAN BE IT REMEMBERED, that on this 7th day of January, in the year of our Lord one thousand nine hundred and seventy-two, before me, the undersigned authority, personally appeared Harry C. Baldassarre and SS. ‘Reinelda Baldassarre, his wife, and Michael Ackaway and Rita Ackaway, his wife, who I am satisfied are the Grantors in the within agreement and acknowledged that they signed, sealed and delivered same as their act and deed. All of which is hereby certified. COLIN R. HAZELTONE Colin R. Hazeltone An Attorney-At-Law Of New Jersey ACKNOWLEDGMENT STATE OF NEW JERSEY COUNTY OF OCEAN BE IT REMEMBERED, that on this 7th day of January, in the year of our Lord one thousand nine hundred and seventy-two, before me, the undersigned authority, personally appeared Wesley Kenneth Bell who I am satisfied is the Grantee in the within agreement and acknowledged that he signed, sealed and delivered same as his act and deed. All of which is hereby certified. SS. COLIN R. HAZELTONE Colin R. Hazeltone An Attorney-At-Law Of New Jersey 106a Exhibits. Prepared By: R Shackleton and Kelly Counsellors at Law 22nd St. and Long Beach Blvd. Ship Bottom, New Jersey 08008 005103 Recorded Ocean County Clerk's Office ‘72 Feb 7 PM 2 01 Book 3187 Page 1 of Deeds Clerk Edward (Illegible) 107a EXHIBIT #17 SUPERIOR COURT OF NEW JERSEY Law Division Ocean County Docket No. L-1917-67 P.W. Civil Action WESLEY KENNETH BELL and THELMA J. BELL, Plaintiffs, vs. STATE OF NEW JERSEY by DAVID J. GOLDBERG, Commissioner of Transportation, Defendant. ORDER THIS MATTER being opened to the Court on Tuesday, October 15, 1968, by Hartman and Schlesinger, Esquires, attorneys for the plaintiff, Alfred A. Faxon, III, Esquire, appearing, in the presence of Philip S. Carchman, Esquire, Deputy Attorney General, on behalf of Arthur J. Sills, Attorney General, attorney for the defendant, and the Court having before it a Stipulation of the Facts herein agreed to by the attorneys for the parties, and having considered the arguments of counsel: 108a Exhibits. It is on this 29 day of October 1968, ORDERED that judgment be entered in favor of the plaintiff against the defendant determining that the plaintiff is the owner of lands abutting its properties, which are designated as Lots 3, 4, 5 and 6 in Block 120 on the Tax Map of Stafford Township, Ocean County, New Jersey, which lands lie between the center lines and curb lines at Poe Street and Philadelphia Avenue as shown on said Map; and BE IT FURTHER ORDERED that the defendant be and is hereby required to condemn so much of said lands as are to be taken for highway purposes. EDWARD V. MARTINO, A.J.S.C. We hereby consent to the above Order as to form. HARTMAN & SCHLESINGER Attorneys for plaintiff By ALFRED A. FAXON, III ARTHUR J. SILLS, Attorney General Attorney for defendant By PHILIP S. CARCHMAN Deputy Attorney General 109a EXHIBIT #18 Map Reference A Parcel #L11B State cancelled license to this sign without hearing Billboards’ replacement valued at $19,000.00 Contracted Income 1983 L.B.I. Medical Center $5,200 per year MEDICAL CARE 7 DAYS A WEEK VEAR ROUND i LONG BEACH ISLAND MEDICAL CENTER AT THE CAUSEWAY « LONG BEACH BLVD. SHIP BOTTOM “YOUR NEIGHBORHOOD DOCTORS’ 110a EXHIBIT #19 Parcel #L11B - Map Reference A Photos show State’s Destruction of Billboards on September 30, 1983 without notice. — =" llla EXHIBIT #20 Map Reference B Parcels #L16B, L17C, LRi8B, LR19B, L22B, L23C, L23B, L24B, L39 and 40 Licensed by New Jersey and are a part of this suit Billboards replacement valued at $24,000.00 Beautiful Homes on the water at Village Harbour 1% MILES STRAIGHT AHEAD | Village Harbour $4,600.00 per year 1983 Rates Nobody Wants a Nuclear War $2,400.00 per year value Facings being changed on left side of westbound sign $2,400.00 per year value 1983 Rates salen 112a EXHIBIT #21 Parcel #L22B Map Reference B Without notice or right of entry State employees destroyed Billboards, in pouring rain, on September 30, 1983, accompanied by armed, uniformed State Police. 113a EXHIBIT #22 Parcel #L4B Map Reference C Billboards on this site, which were three and a half stories above ground, were totally destroyed on September 30, 1983, without notice to Plaintiff, and cut up into small pieces on October 2, 1983, and hauled away. See LUXURY : BAYFRONT LIVING = BEACH HAVEN * Shelter Cove Condominiams ll4a EXHIBIT #23 Parcel #L17G Billboard’s replacement valued at $24,000.00 *Uahnsen ¢r OUTDOOASMAN: | ¢v ON TME RALWO MAVEN BEACH eC ye ONE STOP. MARINE store [ + - The Outdoorsman $4,600.00 per year 1983 Rates Minstgersey HANOI RELEASE OUR Regie we BPOW/MIAS urrveentdtutmieatt tite First Jersey Bank $3,000.00 per year POW/MIA $2,400.00 year value 1983 Rates * Above billboards destroyed by State on September 30, 1983, without notice ————————— 115a EXHIBIT #24 Parcel #L17E and L17D Map Reference E Billboards destroyed by State employees on September 30, 1983, without notice > Gey matt 1l6a EXHIBIT #25 Parcel 4LI7E and L17D Map Reference E Billboards replacement valued at $24,000.00 Anderson Agency $5,200.00 per year 1983 Rates EIST EM ace, OED ow - .-- you Won'T GET A eat’ 3 ; aq ee: eum STEFR AT... _* ‘oe % @ + 4. e° e. @e TwwhrOuses OUPLEEES aan ne = peer Poppy Feather Park $4,000.00 per year 1983 Rate 118a EXHIBIT #27 Parcel L22C Map Reference F Billboards cut down and destroyed by State employees without notice on September 30, 1983 nln U JAS MYYR ( Be x 4 lEY OPEN ‘ALL’ YEAR 119a EXHIBIT #28 Parcel #L22B Map Reference G Billboards replacement valued at $24,000.00 | | _— PRESTIGIOUS LAKEFROAT (Colony: : _— | So HOMES AT THE SHORE Colony Lakes $4,600.00 per year 1983 Rates HANOI RELEAS s. -y BU22 OVERS L S, LUCILLES ae CANDIES JUST AHEAD Lucilles Candies $2,400.00 per year POW/MIA $2,400.00 per year value Rented to Greens Army & Navy Store 1983 Rates Billboards cut down and destroyed by State employees on September 30, 1983 without notice 120a EXHIBIT #29 Parcel #L2R-31D Map Reference H Billboards replacement valued at $35,000.00 4 ~ s - * & —se ie Manahawkin Chrysler-Plymouth $5,000.00 per year om ae at RE, THEN L au Colony Lakes $4,600.00 per year State claimed ownership to this parcel and threatened to destroy billboards even though they had no legal right of entry or ownership — | 12la EXHIBIT #30 Map Reference J Parcels 4L3E1 and 2 and TLE-1G and 1H Billboard’s replacement value $26,000.00 | | & 153a SESO-LE 7 a0 sadoad © Kq patuoyine Ajnp 19" Asewunjor sit se Von eI0ds09 ay) Aq P212Ay2p PUT PouBrs sem poac] sid} (>) ‘wones0ds09 ay) JO WIpIsaig ay) tt oy 12040 s1es0ds09 sado2d ayn Kq paaq sy) Jo BuruBis ay) 07 ssounm Sunsane ay) s1 Uosiad sty) (q) * poag sy) ul poweu YoNeI0dI02 24) jo Aswiaisos ay st uossod sry: (©) -yeys ‘uonseysnes Kw 01 ‘ye J2pUN pIpanouyre voss2d siy) PU BUF 230)2q awe Ajeuosiod ie “ss 40 ALNNOD ‘AISUF JN 4O ALVIS rt” Aasaa N 30 33235 fi iaay's any gosonrin in aya 30 KYWHe keusoriy | Reo wal | WOLZINIVYS “0 OUERNE LL Rng gheitgee sve ma fy wy ij GY ”Y) a % ’ . on loo “4 . yv Z : PMILjOp Ss! 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ZONING The property va which the sign wi: it. ADVERTISEMENT TO KE DISPLAYED Is: Es COMMERC(AC becated is maed for ARVERTIS/( AC & COMMERCIAL 1S. CRRTIBICATION NOTE: &.5. $4:52-2 provides thet emyone whe mokes © lelse oficwction » bee guilty of « misdemeener. ee ae. ENCIOSED 1S CHECK pel money ORDER [_]ForR 5 la eccordence with the provisions of ¢. 191, L. 1959, oc amended and supplemented, and regulation promulgeted therete, |, the undersigned, hereby mahe application ler on Ovideos Advertising Peal? erect of metatain an advertisement of the lecetion described | dec! 6 \rwe te the best of my hnowledge end bellel, and the ! hove the pers his agent te wse the property fer seid purpose. A copy of the cones’ vided te the Outdoor Advertising Section upon reqes!. | agres to = condition, and | terther agree te remove the sign or advertisement up permit, repointing the portion of the building o: other structure te the completely obliterate the edvertisement pelnted thereon. Trees or o/ will net be trimmed or oltored in any wey te incroese visibility ef th clterstion ov any ether vielation of the Owtdeer Advertising Seemwtes dete revecetion of the porait. The stetucery bee is hevew!th sve? plication le denied, | fully enderstend thet this emount will act be m Udedk BOD sere Of: [121° 79 SUNED BY 23la Refusal to Accept Applications In Reply Please Refer To (Seal) STATE OF NEW JERSEY Department of Transportation 1035 Parkway Avenue P.O. Box 101 Trenton, New Jersey 08625 Louis Gambaccini Commissioner November 13, 1979 Clinton E. Cronin, Attorney 200 Main Street Toms River, New Jersey 08753 Dear Mr. Cronin: RE: Wesley K. Bell Sign Applications— Route 72 With the advice of the Attorney General’s office the Department of Transportation responds to your letter of October 11, 1979 on behalf of your client, Wesley K. Bell as follows: 1. The original check for $210 and_ seven applications submitted are returned herein. Applications for permits for these signs have been previously denied and the issue as to the State’s ownership in the right of way on which these signs are located has been litigated to a conclusion favorable to the State. In light of the previous permit denials and the final resolution of the issues ~ litigated, the current applications are considered improper. 232a Refusal to Accept Applications. 2. The signs presently located on _ those properties for which the seven applications were submitted are to be removed within 30 days of the date hereof, or they will be removed by the New Jersey Department of Transportation pursuant to N.J.A.C. 16:41-8.15. These locations are identified as follows: N.J.D.0.T. Sign Encroachment Your Application Location Parcel No. Violation No. Route 72 (MP 22.3) North Side— 1 mile west of Route 9 L11B 3SE9-86 Route 72 (MP 23.2) South Side— East of Route 9 at Mill Creek L4B 3SE9-88 Route 72 (MP 23.6) South Side— 100 feet east of Union Creek L17D 3SE9-90 Route 72 (MP 23.6) North Side— West of Union Street L17G 3SE9-89 Route 72 (MP 23.8) South Side— 680 feet east of Union Street L22B 3SE9-91 Route 72 (MP 23.7) North Side- 550 feet west of Jennings Road L22C 3SE9-92 Route 72 (MP 24.0) South Side- E31B & 850 feet east of Jennings Road L2R31D 3SE9-93 In addition, 3. Parcel E31B/L2R31D, your location as 850 feet east of Jennings Road and previously cited as Sign Encroachment 3SE9-93, all records within this Department indicate State ownership to the parcel. Should you have documentation contrary to New Jersey Department of Transportation ownership which you wish considered, please advise this office 233a Refusal to Accept Applications. in writing, together with copies of _ this documentation, within 15 days of the date of this letter. Very truly yours, DOROTHY L. ANDRES Dorothy L. Andres Supervisor of Outdoor Advertising, Permits, and Highway Markings DLA:sjp cc: Wesley K. Bell P.O. Box 538 Manahawkin, N.J. 08050 bec: J. Freidenrich M. Greitzer D.A.G., N. Monteforte W. Cunningham J. Nettleton 234a Statement of Ownership 11/28/79 from Clinton Cronin, Esquire CLINTON E. CRONIN Attorney at Law 200 Main Street Toms River, New Jersey 08753 (201) 349-5775 November 28, 1979 Ms. Dorothy L. Andres Supervisor of Outdoor Advertising, Permits, and Highway Markings State of New Jersey Department of Transportation 1035 Parkway Avenue P. O. Box 101 Trenton, iNew Jersey 08625 Re: Wesley K. Bell Dear Ms. Andres: With reference to your letter of November 13, 1979, I am hereby advising you that my client is the owner of Parcel E31B/L2R31D. Your letter, in my client’s view, is obviously an attempt by you, individually, to assert a claim previously abandoned by the New Jersey Department of Transportation. With regard to the balance of your letter, I cannot understand why you have refused to accept the applications for permit for signs which we submitted to you with our letter of October 11, 1979. I am at a further loss to understand why you drew the word ‘‘void”’ across my client’s certified check in the amount of $210.00 which covered the application fees. 235a Statement of Ownership 11/28/79 from Clinton Cronin, Esquire. I am herewith returning both the check and applications which I must insist be processed in the ordinary course. i must further ask that you withdraw your threat to have the Department of Transportation remove the signs at the seven locations listed in your letter of November 13, 1979. You will please consider this letter as an appeal from the decisions contained in your letter of November 13, 1979 and as a request for an administrative hearing before the Department of Transportation, in order that my client may have a hearing as to your decisions. I will await further word from you as to the scheduling of the hearing or hearings required under the administrative procedures act. Very truly yours, CLINTON E. CRONIN Clinton E. Cronin CEC/jc encl. cc: Mr. Louis J. Gambaccini, Commissioner Notice to Remove Copy 1/8/80 CERTIFIED MAIL—RECEIPT REQUESTED In Reply Please Refer To (Seal) STATE OF NEW JERSEY Department of Transportation 1035 Parkway Avenue P.O. Box 101 Trenton, New Jersey 08625 Louis J. Gambaccini Commissioner December 3, 1979 Clinton E. Cronin, Attorney 200 Main Street Toms River, New Jersey 08753 Dear Mr. Cronin: RE: Wesley K. Bell Sign Applications— Route 72 Please refer again to my letter of November 13, 1979 which transmitted to you the Department’s determination in the above referenced matter. Your comments are inappropriately directed and any questions or correspondence in this matter should be addressed to the Chief, Legal Section assigned to the Department of Transportation. Very truly yours, DOROTHY L. ANDRES Dorothy L. Andres Supervisor of Outdoor Advertising, DLA:sjp Permits, and Highway Markings 237a Refusal to Accept Applications 2/5/80 (Seal) STATE OF NEW JERSEY Department of Law and Public Safety Division of Law Transportation— Highways Section 1035 Parkway Avenue Trenton 08625 Telephone 292-5709 John J. Degnan Stephen Skillman Attorney General Assistant Attorney General Director Richard L. Rudin Deputy Attorney General Section Chief February 5, 1980 Clinton E. Cronin, Esquire 200 Main Street Toms River, New Jersey 08753 Re: Wesley K. Bell Sign Applications— Route 72 Dear Mr. Cronin: Returned herewith is your client’s check in the amount of $210 together with the sign permit applications which it is intended to cover. When said check and applications were previously returned by the Supervisor of Outdoor Advertising, you were advised that these permit applications were for signs which had previously been denied permits and for which the issue of ownership of the property on which they were located had previously been litigated to a 238a Refusal to Accept Applications 2/5/80. conclusion favorable to the State of New Jersey. You were advised then, as you are now being advised, that the applications were and are improper. Under no circumstances will these applications be accepted by the Department of Transportation. The Supervisor of Outdoor Advertising has also informed both you and your client that certain structures will be removed. Quoting from the November 13, 1979 letter: “The signs presently located on those properties for which the seven applications were submitted are to be removed within 30 days of the date hereof, or they will be removed by the New Jersey Department of Transportation pursuant to N.J.A.C. 16:41-8.15. These locations are identified as follows: N.J.D.0.T. Sign Encroachment Your Application Location Parcel No. Violation No. Route 72 (MP 22.3) North Side— 1 mile west of Route 9 L11B 3SE9-86 Route 72 (MP 23.2) South Side— East of Route 9 at Mill Creek LAB 3SE9-88 Route 72 (MP 23.6) South Side— 100 feet east of Union Creek L17D 3SE9-90 Route 72 (MP 23.6) North Side— West of Union Street L17G 3SE9-89 Route 72 (MP 23.8) South Side— 680 feet east of Union Street L228 3SE9-91 Route 72 (MP 23.7) North Side— 550 feet west of Jennings Road L22C 3SE9-92 Route 72 (MP 24.0) South Side— E31B & 850 feet east of Jennings Road L2R31D 3SE9-93" Since the matter has been fully litigated, this decision is final. 239a Refusal to Accept Applications 2/5/80. However, as a result of a meeting held on Wednesday, January 2, 1980, at the New Jersey Department of Transportation Offices in Trenton, at which you were present the following was agreed upon: 1. Parcels L11B, L17G, L17D, L22C and L22B are owned by the New Jersey Department of Transportation. Your client was allowed until January 31, 1980 to remove these encroachments. 2. For parcel L4B, your client was allowed until February 29, 1980 to produce documentation to the effect that the Department of Transportation condemnation proceedings did not implead the proper parties. During the interval, all advertising copy was to be removed by January 31, 1980. The above in no way prejudices the Department of Transportation's right to claim that this allegation has been previously adjudicated or is barred by prior litigation. 3. For parcel 2R31D or E31B advertising copy is to be removed by January 31, 1980. Proof of your client’s legal right, if any, to this parcel will be furnished by February 29, 1980. 4. For parcels L22, 23B and 23 (which were not included in your client’s permit applications), Mr. Bell was allowed until February 29, 1980 to present proof this his right to advertise on this parcel was not extinguished by the Department of Transportation and that he is not encroaching on State property. Any advertising copy on this parcel also was to be removed by January 31, 1980. 240a Refusal to Accept Applications 2/5/80. Should any of the required documentation not be produced to the satisfaction of the Department of Transportation by the aforesaid dates, the subject signs will be removed without further notice. Very truly yours, JOHN J. DEGNAN Attorney General of New Jersey By: NICKOLAS F. MONTEFORTE Nickolas F. Monteforte Deputy Attorney General NFM/dc Enclosures cc: Dorothy L. Andres, Supervisor Outdoor Advertising, Permits and Highway Markings 24la Report Showing “Blank Sign”’ 1/5/82 EVANS, KOELZER, MARRIOTT, OSBORNE & KREIZMAN MEMORANDUM Date: 1/5/82 Subject: WES BELL V. STATE OF N.J. File No. 16685 To: JOEL N. KREIZMAN From: DON STRATTON On 12/29/81, a survey was made on Route 72, Manahawkin, N.J., by the writer and Wes Bell. A map previously furnished by Mr. Bell was used in this survey and points of interest as furnished by Bell were numbered, 1 thru 35, on this map. In addition, a photograph was taken of the particular place of interest. The following reflects the numbered place of interest, a photograph of same, and any comments by Mr. Bell: 242a Report Showing “Blank Sign”’ 1/5/82. Bell applied for BB permit. State indicated it was taking whole property. Later removed from taking. Shallow depth subsequently taken by state. BB east of Chrysler. Bell had purchase agreement for sale putting $2,000 down. Property condemned. State tried to get owners to sell front of property. Bell refused to sign off. No further action to date. 243a Affidavit of Ownership | ORIGINAL FILED Jul 30 1982 Allyn Z. Lite, Clerk. STERNS, HERBERT & WEINROTH A Professional Corporation 186 West State Street P. O. Box 1298 Trenton, New Jersey 08607 (609) 392-2100 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY WESLEY K. BELL, Individually and d/b/a WES OUTDOOR ADVERTISING CO., Plaintiff, Vv. STATE OF NEW JERSEY, JOHN J. DEGNAN DOROTHY ANDRES and NEW JERSEY DEPARTMEN f OF TRANSPORTATION, Defendants. Civil Action No. 80-531 . Hon. Anne Thompson, USDJ 244a Affidavit of Ownership. AFFIDAVIT OF WESLEY K. BELL STATE OF NEW JERSEY COUNTY OF MERCER WESLEY K. BELL of full age being duly sworn according to law upon his oath deposes and says: 1. I am the Plaintiff in this matter. I have been in the outdoor advertising business as Wes Outdoor Advertising Co. in the State of New Jersey since 1957. 2. This Affidavit is made by me in response to the Court’s Order dated July 13, 1982. I believe that the facts set forth below demonstrate the existence in this case of material facts which preclude the entry of Summary Judgment in favor of Defendants. 3. I have never had the opportunity for a full hearing on the merits, either in Federal or State Court or before the New Jersey Department of Transportation (DOT), of any of.the claims set forth in the Amended Complaint in this case. 4. As indicated in paragraphs 8—12 of the Amended Complaint, Defendants have refused to process my applications for permits to maintain outdoor advertising billboards on various parcels of land along Route 72 in Ocean County. As alleged in paragraph 13 of the Amended Complaint, on February 5, 1980 the Attorney General wrote to my former attorney returning my applications and my check for application fees. A copy of that letter is attached as Exhibit “‘A’’ (it was also filed as Exhibit ‘‘U”’ to Defendants’ Papers in support of their Motion to Dismiss the Amended Complaint). 245a Affidavit of Ownership. 5. It is my good faith belief that I am entitled to the permits which are the subject of Exhibit “‘A’’, and that Defendants have violated my constitutional rights, as more specifically described in the Amended Complaint, by refusing to process my applications and issue the permits. 6. The Defendants, however, claim that I am not entitled to these permits, and further seek to have my billboards removed from the parcels of land in question because they allegedly encroach upon state property. 7. The DOT commenced an Administrative Hearing (hereafter ‘DOT Hearing”’) on January 31, 1978 in order to resolve the question of my entitlement to permits. See, Letter of January 25, 1978 from Albert R. Hasbrouck, Chief DOT Hearing Examiner, attached as Exhibit “B’’. See also, Letter of March 9, 1978 from Deputy Attorney General Nickolas Monteforte, attached as Exhibit “C’’, pointing out that the issues in the DOT Hearing are “‘narrow in scope and pertain only to the matter of title to the real property involved and whether or not there is an encroachment on state property.” 8. Although one day of hearing was held on January 31, 1978 the hearing has never reconvened. Although the State presented various proofs during that day, I have had no subsequent opportunity to present my proofs, and obviously there has been no final administrative determination by DOT. At this point, given the period of time which has passed and the position DOT has taken against me in this case, I believe that DOT is prejudiced and could not serve as an objective and impartial decision maker in this matter. For that reason, I wish to 246a Affidavit of Ownership. have my claims on the merits heard by this Court in order to redress the deprivation of my constitutional rights. 9. Attached as Exhibit “‘D” is a map which depicts the various parcels of land, containing my billboards, which are at issue here. This map represents areas along Route 72 in which DOT never attempted to condemn land, in which condemnation was announced but later withdrawn, and in which condemnation was purportedly undertaken. The map indicates the extent to which DOT has invidiously discriminated against me by singling out my land for taking, while allowing my competitors to continue to maintain billboards unhampered by the DOT. This map is clear evidence of DOT’s arbitrary exercise of condemnation authority under the guise of highway beautification. 10. The parcels of land at issue here are listed at page two of Exhibit “‘A”. For the reasons which follow, I believe I am entitled to billboard permits for each parcel. 11. With respect to parcel #L2R-31D (this parcel is identified by the ‘‘H’’ on Exhibit “‘D’’), I presently have the right to maintain billboards. This parcel was the subject of the DOT Hearing, and the relevant portion of the transcript of that hearing applicable to this parcel is attached as Exhibit ‘‘E’’. The transcript erroneously refers to the parcel as L-2431D. On December 26, 1968 I entered into an agreement to purchase this parcel from the then record owner named Foster. The agreement was subsequently recorded on December 30, 1968. On or about January 7, 1972 I went to settlement on the agreement to purchase from Foster and at the same time assigned my rights to the parcel to individuals named 247a Affidavit of Ownership. Kahi, Baldassarre and Ackaways. Simultaneously, Kahl, Baldassarrre and Ackaways deeded to me a permanent easement for the construction and maintenance of billboards on a specified 25 foot by 150 foot portion of the parcel, the 25 foot length fronting on Route 72 and the 150 foot length extending southward from Route 72. This easement was recorded on January 7, 1972 in book 3187, page one of the Ocean County records. The testimony of Paul J. Howard, Supervisor of DOT’s Settlement Section, Right-of-Way Division, Bureau of Titles, indicates that individuals named Kahl and Ackaway conveyed their interest in this parcel to the State by deed dated December 5, 1974, recorded January 8, 1975. As indicated in Exhibit “E”’, although the State attempted to purchase this parcel from the owners of record, it has never taken action to purchase or otherwise condemn my easement. Thus as, indicated on page 128 of the transcript, my attorney asked Mr. Howard “‘did you ever take proceedings to condemn Mr. Bell’s easement.”’ Mr. Howard: “No, we took this case under agreement from the owners and the condition of the agreement was to convey, free and clear, title to the State. Now, the owners could not convey clear title because of the easements held by Mr. Bell. So the case has not been settled.”” (emphasis added) Moreover, at page 129 of the transcript, the Hearing Officer asked: “Is it your testimony Mr. Howard, this case is still pending?’’ Mr. Howard answered: “Yes, it is. The owners couldn’t convey clear title under the terms of the agreement and we haven't instituted condemnation proceedings on this.” (emphasis added) 248a Affidavit of Ownership. Thus, it is cléar from the DOT Hearing, and particularly by the testimony of DOT’s own witness, that the DOT has never instituted condemnation proceedings against my interests in this parcel. Accordingly, DOT does not have full title in this parcel, and I am entitled to obtain permits for the billboards on this land. 12. Parcel number L4B is identified by the letter “C’’ on Exhibit ‘‘D’’. As indicated by the relevant portion of the DOT Hearing transcript applicable to this parcel, the State began a condemnation proceeding against the owrers of record of this parcel (Dkt. No. L-7734-69), but In; greed to an out-of-court settlement for the sum of %,00€ on November 30, 1970. I, however, had entered itu 2n agreement to purchase this property on January '6, 1968 and that agreement was subsequently recorded. At the time of the out-of-court settlement between the owners of record and the State, I was in possession of this property pursuant to the agreement. Thus, I refused to sign the settlement proferred to the owners of record by the State. Subsequently, the owners of record sued to have me removed from possession of the property. I counterclaimed for specific performance of the purchase agreement, and named DOT as a third-party defendant. At the hearing in Superior Court, a Deputy Attorney General appeared representing DOT and indicated to the Court that it was taking no position one way or the other. Subsequently, the Superior Court approved a settlement on April 23, 1975 whereby I paid the balance due on the purchase agreement of $8,000 plus interest (at the time of execution of the purchase agreement, I had paid a downpayment of $2,000). The transcript of the DOT hearing, at page 89, indicates that Mr. Howard 249a Affidavit of Ownership. admitted that the State was unable to obtain clear title to this parcel due to my interests and the fact that I was in possession at the time. (See, Exhibit “F’’) Of course, since the DOT Hearing was never reconvened, and since I was never permitted to either cross-examine the State’s witness or to present affirmative proof of my own, I have not had the opportunity to definitively demonstrate that I am properly in possession of this property. No condemnation proceedings are pending respecting this parcel, and I am properly in possession. Therefore, I believe my rights have been denied because the State has refused to provide me with an outdoor advertising permit to maintain my billboards on this land. 13. Parcel #L22B is indicated by the letter “G” on Exhibit ‘‘D’’. A condemnation judgment on this parcel in favor of the State was entered by the Superior Court on April 12, 1972. The Superior Court prohibited my attorney from questioning the State witnesses on any issue other than value of the property. Accordingly, the judge indicated that other proceedings should be instituted in order to challenge the DOT’s arbitrary and discriminatory exercise of its condemnation authority. To date, however, no other forum, whether judicial or administrative, has permitted me to raise such issues despite my determination to do so. In any event, the judgment regarding this parcel only gave the State title to that portion of the land located within a depth of 60 feet from Route 72. I continue to be the owner of the property immediately adjacent to that portion of the land for a depth of 29 feet. Notwithstanding my clear and undisputed ownership of 250a Affidavit of Ownership. this 29 foot depth adjacent to the lot condemned by the State, Defendants have nonetheless refused to provide me with outdoor advertising permits in order to maintain billboards upon the 29 foot depth which I undisputedly own, in violation of my constitutional rights. 14. Parcel #L22C is identified by the letter ‘“‘F’’ on Exhibit ‘‘D’’. With respect to this parcel, the State obtained a judgment condemning land at a depth of 100 feet from Route 72, even though adjacent parcels to the east (See, Exhibit ““D’’) were condemned only to a depth of 60 feet. Thus, the DOT arbitrarily singled out my property for descriminatory treatment. When I attempted to raise this issue at the condemnation hearing, the judge indicated that he would not hear this issue and stated that other proceedings should be instituted to raise this claim. Of course, as set forth above, I have been frustrated continually in my efforts to raise such claims. As condemned by the State, this parcel extends for a depth of 100 feet from Route 72. I am the owner of that portion- of the land beyond the* 100-foot depth immediately adjacent to this parcel, and the State does not claim otherwise. Accordingly, I am entitled to obtain outdoor advertising permits and to maintain billboards on my _ property beyond the 100-foot depth. Notwithstanding this, the State has refused to process or to grant outdoor advertising permits to me for this purpose, in violation of my constitutional due process rights. 15. Parcels #L17G, L17E and L17D are identified by the letters ‘‘D’’ and “E”’ on Exhibit ‘““‘D’’. Although the State instituted condemnation proceedings against these parcels on January 6, 1970 it never included the value of 25la Affidavit of Ownership. existing billboards on the premises even though the State’s condemnation maps clearly showed the presence of such billboards. Accordingly, I was denied just compensation in the case of these parcels. Moreover, the State invidiously discriminated against me with respect to the condemnation of these parcels because, as indicated by Exhibit ‘‘D’, it did not condemn adjacent parcels nor did it condemn the land lying behind parcels #4L17E and L17D. The land in the rear of these parcels is owned by Herbert Shapiro, and practically every parcel of land owned by him in this area has been abandoned for condemnation by the State. Clearly, the State engaged in discriminatory application of its condemnation authority in this case. 16. Parcel #L11B is identified by the letter “‘A’’ on Exhibit ‘‘D’’. Notwithstanding the fact that I had a billboard on this parcel, it was condemned by the State as vacant land on November 24, 1969. Although I purchased this property in 1968 for $3,800, the State posted only $1,000 as payment in full as a result of the condemnation judgment on February 4, 1971. As a result I was denied just compensation to which I am entitled. Moreover, although my land was condemned under the guise of highway beautification, property adjacent to mine was removed from the proposed taking and a gas station was allowed to be constructed. Such action was completely contrary to the sworn Affidavit of Clarence R. Pell, a landscape architect for the Department of Transportation, which is dated May 24, 1969 and was filed in the matter of Wes Outdoor Advertising v. Goldberg, Dkt. No. L13980-68 PW (Law Div., Ocean Co.). In his Affidavit, a copy of which is attached as Exhibit “G’’, Mr. Pell indicates that “The Department of 252a Affidavit of Ownership. Transportation has every intention of proceeding with condemnation for the acquisition and will use [two specific parcels of land adjacent to parcel L11B)] for landscaping purposes.’ Notwithstanding this Affidavit, two gas stations were allowed to be constructed upon the parcels in question subsequent to Mr. Pell’s Affidavit. Thus, my land was taken for landscaping purposes whereas adjacent land was permitted to be used for the construction of gas stations. This is but another application of the DOT's discriminatory application of its condemnation authority with respect to my land. 17. The facts set forth above will be further documented if a full trial is conducted in this case. I believe that the above indicates that material issues of fact are present in this case respecting the title to the parcels of land in question and the issue of my entitlement to outdoor advertising permits. Accordingly, I respectfully request that summary judgment be denied to Defendants, and that I be granted the right to discovery under the Federal Rules as well as a full trial on the merits. WESLEY K. BELL Wesley K. Bell SWORN AND SUBSCRIBED TO BEFORE ME this 27th day of July, 1982. ELIZABETH S. POINSETT Elizabeth S. Poinsett 253a Combined Communications Corp. v. City and County of Denver, Opinion of District Court, March 7, 1975 IN THE DISTRICT COURT IN AND FOR THE CITY AND COUNTY OF DENVER STATE OF COLORADO Civil Action No. C-41119 Courtroom 11 COMBINED COMMUNICATIONS CORPORATION, et al., Plaintiffs, vs. CITY AND COUNTY OF DENVER, et ai., Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW This opinion will set out this Court’s Findings of Fact and Conclusions of Law as required by Rule 52(a) C.R.C.P. Since this action for declaratory judgment and injunctive relief involved ten different claims for relief, testimony from almost forty witnesses, a two week triai, and almost 200 pages of legal briefs, This case questions the validity of the part of the 1971 Denver Sign Code (Ords. 94 and 95, Series of 1971) that deals with ‘‘outdoor general advertising devices.’ The Court regrets that its opinion must be as long as this one is, but while it may not seem so on a cold, written record, the attitude and impression created by 254a Opinion— March 7, 1978. the defendants and their witnesses (particularly the planners) at the trial convinced this Court that the defendants seek and would like to obtain = an unprecedented and apparently unlimited extension of their police power so that they can take any property which for one reason or another they believe to be unpopular. Under these circumstances, it seems important to spell out in detail why this Court believes such an extension in this case is invalid. : This Court feels that unless municipalities are to be given unbridled latitude to take property, and if the Constitution is to retain any meaning, then strong steps must be taken to advise the governments that this kind of_attitude and action are unacceptable. BURDEN OF PROOF The plaintiffs’ contend that the burden of proof should be upon the defendants to prove the validity of Ords. 94 and 95 by showing that the ordinances are required by a ‘compelling state interest.’’ Plaintiffs recognize that the black letter Colorado law is that zoning ordinances are presumed to be constitutional unless the challenger establishes that such ordinances are unreasonable and arbitrary beyond a reasonable doubt. (Stroud v. Aspen, Colo. Sup.Ct. No. 26764 (March 3, 1975); Baum uv. Denver, 147 Colo. 104, 363 P.2d 688 (1961); Bird v. Colorado Springs, 176 Colo. 32, 489 P.2d 34 (1971)), but plaintiffs assert that this rule should not apply because the Sign Code infringes upon their fundamental right of free speech and their fundamental right to do business. They also say that the Code totally prohibits a legitimate industry which shifts the burden of proof to the defendants. 255a Opinion— March 7, 1975. Since this Court has concluded that Ords. 94 and 95 impinge upon the right to freedom of speech, there is authority in Colorado, People v. Vaughan, 514 P.2d 1318, 1322 (Colo. 1973), that the defendants must bear the burden of proving that the ordinances can be justified by an overriding state interest. However, Vaughan did not involve the validity of a zoning ordinance and this Court will not extend the holding of Vaughan to a zoning case in the absence of Colorado authority to that effect, even though it feels that the Vaughan principles should apply to zoning ordinances. This Court is unpersuaded by the plaintiffs’ citation of cases which suggest that the right to do business is a fundamental right which may not be limited in the absence of compelling state interests. See, e.g., Corey v. Dallas, 352 F. Supp. 977 (N. D. Tex. 1972); Cianciolo v. Members of City Council, 376 F. Supp. 719 (E. D. Tenn. 1974). Although Colorado cases have also recognized that there is a “right to work”’ and that the “right to remain in business (is) a valuable property right’, these statements were not made in the context of shifting the burden of proof to the city or state. Were this doctrine applied literally, it would have the effect of shifting the burden to municipalities to prove a compelling state interest for every zoning decision that they make. This result would be clearly contrary to long standing Colorado precedent and is an unjustified extension of the ‘“‘compelling state interest’’ doctrine. The plaintiffs’ argument that the totally prohibitory nature of Ords. 94 and 95 should shift the burden of proof to the defendants is a very appealing one and will be discussed in more detail later. Again, however, since there is no clear Colorado precedent for this position, this 256a Opinion— March 7, 1975. Court has felt that it must abide by the doctrines relating to burden of proof as set forth in Baum and Bird, supra. Therefore, in weighing the evidence and determining the outcome of this case, this Court has required the plaintiffs to establish the invalidity of Ords. 94 and 95 beyond a reasonable doubt. On this basis the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT A. The Ordinances 1. The Court finds that the City and County of Denver (‘Denver’) has had a comprehensive zoning ordinance for forty or fifty years and that for a large number of those years that zoning plan has included regulations of on-premise advertising signs as accessory uses to permitted uses by right while it has regulated off-premise advertising signs by permitting them only as uses by right in certain zoning districts. 2. As part of its long-range planning, in 1967 Denver adopted a ‘‘Comprehensive Plan’’, (Exh. 1), based on the concept that Denver should become a “city of excellence’. This Plan discusses such aspects of city living as residential, business and industrial land uses, transportation, community facilities and so forth. Among its provisions the Plan states that ‘‘the reduction and elimination of arterial commercial strips is one of the prime land use objectives of this Plan’, (p. 70), and calls upon the city to “prevent and eliminate all blight’’ (p. 248). In several places the Plan discusses the problem of outdoor advertising and signage and concludes that: 257a Opinion-— March 7, 1975. “There is a great need for improvement of the environment in other areas of the city through reasonable control of advertising signs—all of which is not to suggest complete elimination of advertising signs. (P. 286.) 3. During the 1960's increasing thought was given to the regulation of signs and billboards and toward the end of the '60’s, the drafting of the Denver Sign Code began in earnest. It was not until the ‘‘April, 1970” draft of the proposed new Sign Code that the total elimination of outdoor general advertising devices was written into the Denver Sign Code, but from that date on the language prohibiting outdoor general advertising devices remained unchanged. 4. As it was finally adopted by the City Council on March 15, 1971, (and effective March 20, 1971) the Sign Code consisted of a series of seven sepsrate ordinances (Ords. 89-95, 1971 Series; Exhs. AC to Al). 5. Ordinance 90 (Exh. AD) contains the definition of ‘outdoor general advertising device’’: “619.270. Outdoor General Advertising Device: A sign relating to products, services or uses not on the same Zone Lot.”’ The same ordinance contains the definition of ‘‘sign’’: “619.396. Sign: A sign is any object or device or part thereof situated outdoors or indoors which is used to advertise, identify, display, direct or attract attention to an _ object, person, institution, organization, business, product, service, event or location by any means including words, letters, figures, designs, symbols, fixtures, colors, motion 258a Opinion—March 7, 1975. illumination or projected images. Signs do not include the following: (1) Flags of nations or an organization of nations, states and cities, fraternal, religious and civic organizations; (2) merchandise, pictures or models cf products or_ services incorporated in a window display; (3) time and temperature devices not related to a product; (4) national, state, religious, fraternal, professional and civic symbols or crests; (5) works of art which in no way identify a product. If for any reason it cannot be readily determined whether or not an object is a sign, the Department of Zoning Administration shall make such determination.” 6. Ordinance 94 repealed six sections of the Zoning Code which had previously allowed the _ erection, maintenance and use of outdoor general advertising devices in zone districts B-4, B-5, B-6, B-8, I-1 and I-2. The effect of Ord. 94 is to prohibit the erection of any new (or used) outdoor general advertising devices anywhere in Denver and to make all existing outdoor general advertising devices non-conforming uses. 7. Ordinance 95 provided for the termination of all outdoor general advertising devices by adding to Article _617 of the Denver Zoning Code the following provision: ‘*.1-4(6). By Amortization. .1-4(6)(a). Non-Conforming Outdoor General Advertising Devices. The right to operate and maintain any non-conforming outdoor general advertising device shall terminate in accordance with the following schedule: 259a Opinion— March 7, 1975. Any Outdoor General Adver- Shall be terminated with- tising Device which on the in the following period date the device became non- after the outdoor general conforming would cost the advertising device became following amount to replace: non-conforming: eae aay Cae ee ee 2 years Ps ba cocaine eeeseceewae 3 years Se I 6 kc ccdn scent eemcces 4 years ee er ob 6.054. 660 di hee ewenas 5 years .1-4(6)(b). Flashing, blinking, fluctuating or animated devices. The right to operate and to maintain a flashing, blinking, fluctuating or animated general outdoor general advertising device shall terminate within 30 days after the effective date of the schedule set forth in Section 617.1-4(6)(a) of this Code.” 8. The defendants have repeatedly disclaimed any intention to enforce Ord. 95 until five years after its date of enactment. However, at least by that time Ord. 95 will require the plaintiffs to remove all of their existing outdoor general advertising devices in Denver or be subjected to possible fines and jail sentences for violation of its terms. 9. The joint effect of Ords. 94 and 95 will be to totally eliminate all standardized outdoor general advertising devices from Denver. 10. On December 27, 1971 the City Council passed Ordinance 538, Series of 1971, (Exh. AJ), which was an amendment to the Building Code to conform it to the new Sign Code. 260a Opinion— March 7, 1975. B. Effects of the Sign Code ll. Ords. 94 and 95 do not ban all outdoor advertising. For example, there are presently existing more than 400 bus benches which carry outdoor advertising (Exhs. CA, PP-14, -15) and which are explicitly exempted from the operation of the Denver Sign Code (Exhs. AF, AN); buses continued to carry outdoor advertising throughout all areas and zones of the city and Denver received substantial income from those signs until the buses were sold in 1974 to the RTD which recently made the policy decision to reject most advertising from the sides of buses so that they could carry more of their own advertising; taxicabs carry outdoor advertising on all of Denver's streets; and Denver has even continued to renew advertising contracts on its own Mile High Stadium score board (although this sign would admittedly be taken down at the end of the 5 year termination period). Likewise any number of other forms of outdoor advertising will continue not to be covered. Only outdoor advertising placed on stationary structures will be eliminated. 12. Ords. 94 and 95 will not have any significant effect in reducing the number of signs. The only evidence on this subject presented to the Court indicated that the outdoor advertising structures which are banned only comprise about 2% of the existing signs, and maps prepared by the Denver Zoning Department showing the number of signs which would be permissible under the Sign Code show that even under the new Code there can be a very large number of signs erected. (Exhs. GE, GF) 261la Opinion— March 7, 1975. C. The Businesses 13. The evidence in this case established, beyond any reasonable doubt, that the “‘sign industry”’ is in fact at least two separate and distinct businesses—the on- premise sign business and the off-premise sign business. (It may be, as suggested during the preliminary injunction hearing, that the outdoor advertising is itself two or three separate businesses, but such a determination is not necessary or relevant to the issues of this case.) This finding is not made on the basis of any theoretical philosophical concepts but is made purely on the basis of practical and functional distinctions between the two businesses. a. The on-premise sign business caters almost exclusively to the sale and manufacture of signs for use on the premises of the customer's business whether the customer is a bank, motel, dry cleaning or other business. Virtually all of the flashing, blinking and neon signs are on-premise signs. With the exception of some franchise operations these signs are normally sold on a sign-by-sign basis to individual customers and are custom-made by the sign business. These companies have formed their own national organization b. The off-premise sign business, at least of the standarized type in which the plaintiff Combined Communications Corporation (“CCC’’) is principally engaged, is a very different business. The standardized business uses two principal sizes of faces (which are often jointly referred to as ‘“billboards’’) which are standardized nationwide. The larger faces (‘‘bulletins’, “rotates’’ or “painted bulletins’’), are basically 15 feet by 48 feet in size although they may have some additional 262a Opinion— March 7, 1975. embellishments added to the top or sides of the fact. The, evidence indicates that bulletins are mostly hand-painted by local artists and are sold on contracts running from three months to a year or more. Some of these are rotated from one location to another throughout the metropolitan area. Because of their size and expense they tend to be located at street intersections with heavier traffic volumes. These are sold to both national and local clients but are generally sold one at a time. The smaller of the standardized outdoor advertising devices (the “poster” or “‘poster panel’) are 12 x 25 feet; covered with printed sheets of paper which are pasted to the face of the structure; normally sold for one month at a time; and sold to both national and local clients. Although posters may be sold one by one, they are normally sold in groups, or ‘“‘showings’’, which may number from less than 20 boards to more than 100 boards, geographically spread throughout the metropolitan area and all carrying the same message. The standardized outdoor advertising CCC belong to a separate national organization, the Outdoor Advertising Association of America. c. The structures upon which both bulletins and posters are erected can be dismantled and moved and re- erected in a new location when the need arises, as it does with some regularity such as when a billboard on an existing location must be relocated to allow for development of the original location, or because the lease is not renewed. d. Although the on-premise and off-premise businesses are sometimes combined under one ownership, indeed as was done by Mullins Broadcasting Company, the predecessor of CCC, the testimony showed that these 263a Opinion— March 7, 1976. businesses were and are run separately, with separate sales departments, separate production personnel and separate management. e. From a functional standpoint the on-premise advertising business and the off-premise advertising business are different in their purposes, their clintelle, their sales methods, their production facilities and skills, and their national organizations. Not only are these two businesses functionally different, but historically they have been treated separately under the Denver ordinances and every court which has been faced with the argument that the two businesses are simply part of one industry has rejected that argument. United Adv Co. v. Raritan, 93 A.2d 362, 365-366 (N. J. 1952); Kelbro, Inc. v. Myrick, 30 A.2d 523 (VT. 1943); Markham Adv Co. v. State, 439 P. 2d 248 (Wash. 1968). D. The Plaintiffs’ Actions 14. During the time the Denver Sign Code was being drafted, and at the time of its adoption in Marchi, 1971, most of the billboards in Denver were owned by Mullins Broadcasting Company (‘MBC’) and its operating division, Mullins Outdoor Advertising Company. MBC had been wholly owned by John C. Mullins but at the time of the adoption of the Sign Code was owned bv the executors of his estate. Included among MBC’s assets were also two television stations, two radio stations, one or two on-premise sign companies and a couple of other small holdings. 15. In May, 1971, CCC completed negotiations and signed a contract for the purchase of the stock of MBC from the executors. Uncontradicted testimony shows that the executors were only willing to sell the stock of 264a Opinion— March 7, 1975. the entire company and were not willing to sell the assets of MBC piecemeal so that any purchaser who wanted the television stations and other properties would also have to purchase MBC’s outdoor advertising assets. 16. When the purchase contract was executed in May, 1971, CCC was fully aware of the existence of the new Sign Code and of the potential impact it could have. 17. Due to delays in FCC approval of the transfer of the television and radio licenses, the closing of the MBC did not occur until February, 1972. Shortly thereafter CCC undertook an effort to obtain legislative revision of the Sign Code and even went to the extent of spending over $100,000 on a motion picture presentation which was presented to the Denver City Council. CCC submitted a proposed amendment to the Denver Sign Code in July, 1972, which went through its initial steps but then was stalled in Council, apparently awaiting the outcome of the Art Neon case in federal court, until July, 1973. The CCC amendment was then voted down by the Denver City Council. CCC still did not file suit, according to its uncontradicted testimony, because members of the Denver City Council advised it that as long as there was any kind of a case pending in Court there would be no hope for legislative relief which CCC still hoped to obtain if the favorable federal District Court opinion in Art Neon was affirmed in the then pending appeal. 18. Nonetheless, it is clear that CCC continued to prepare for the eventuality of having to file a lawsuit because it did end up filing its 100 paragraph, 48 page Complaint in this matter the day following the Tenth Circuit Court of Appeals’ opinion which reversed the 265a Opinion—March 7, 1975. Denver federal District Court’s decision in the Art Neon case. (Art Neon Co. v. Denver, 347 F. Supp. 466 (D. Colo.), rev’d, 488 F.2d 118 (10th Cir. 1973)). E. Losses Attributable to Ords. 94 and 95 19. CCC’s outdoor advertising division in Denver, Eller Outdoor Advertising Co. of Colorado (‘‘Eller’’), employs 48 employees with a payroll of over one-half million dollars. Eller has sales slightly in excess of $2,000,000 per year and makes land lease payments in excess of $100,000 per year to persons on whose land it has erected billboards. The Denver Sign Code would effectively terminate those jobs since it would - be difficult if not impossible to relocate those employees and would completely cut off the lease payments to the land lessors. 20. When the Sign Code was enacted Eller’s predecessors owned 123 bulletins and 773 poster panels for a total of 896 outdoor advertising devices. Largely because of Ord. 94’s prohibition of replacing boards which had to be removed in the ordinary course of business, this number had declined to 121 bulletins, and 734 posters or 855 billboards on February 10, 1972 when CCC purchased MBC. By the time of trial this number had decreased to 103 bulletins and 671 posters for a total of 774 devices. 21. This Court finds as fact that the loss to CCC by virtue of the Denver Sign Code will be very substantial. a. According to the very careful and thorough appraisal performed by Mr. George L. Patchin, who appeared on the stand to be highly knowledgeable and totally credible, the fair market of Eller’s signs which 266a Opinion— March 7, 1975. were located in Denver as of the date of enactment of the Denver Sign Code was $4,600,000. (Although there was evidence of fair market value on other dates, the Court is of the opinion that the reasonableness of the ordinances must be tested by judging the facts as they would have appeared to the City Council on the date of the enactment of the ordinance and not as they appear at some later date.) a b. The Court further concludes that for the purpose of determining whether or not the losses inflicted on a private individual or company are “reasonable” the Court must look at the losses which the individual would truly suffer rather than just those which he might be able to recover had the city undertaken the approach of eminent domain. The Court agrees with Mr. Patchin’s opinion that the true losses suffered by CCC for the fair market value of its billboards in March, 1971, would be $4,600,000 rather than merely the cost of replacement of those signs. One of the principal reasons that courts do not grant compensation for loss of good will and other business enterprise value in an eminent domain proceeding is that the business usually can relocate in a new location and rapidly recapture its preexisting business enterprise or ‘‘good will’’ value. This, of course, is not true in the case of the Denver Sign Code since Eller would not be able to recommence its business at all in Denver. However, even if the Court were to accept the defendant’s argument that the value of the billboards should only be the cost of replacement value of $3,015,732, this Court would still conclude that the loss was very substantial! 267a Opinion—March 7, 1975. c. Additionally, it would cost CCC $642,000 to remove its signs in Denver and there would be direct consequential damages in the reduction of value to the remainder of the Eller plant because of the loss of the Denver boards in the amount of $1,045,000. (This figure was on the basis of 1974 values, but should be close to the 1971 figure when inflationary increases are balanced against lost structures. When the 1974 Denver only figures are compared, this figure for consequential damages may even be too low for 1971 purposes.) d. Although it seems cl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0744%3A2. Public record. Not legal advice.