Petition for Writ of Certiorari — Intervine Outdoor Advertising, Inc. v. Gloucester City Zoning Board of Adjustment

‘fe Ses Ceri Os.

& FILED

96 559 0CT 7 19%

No. OFFICE OF THe cue;

IN THE ;

Supreme Court of the United States

OCTOBER TERM, 1996

INTERVINE OUTDOOR ADVERTISING, INC.,

Petitioner.

VS.

CITY OF GLOUCESTER CITY ZONING BOARD OF

ADJUSTMENT & CITY OF GLOUCESTER CITY,

Respondents

ON APPEAL FROM THE SUPREME COURT OF NEW JERSEY

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

LEWIS KATZ, Esa.

MARTIN S. ETTIN, Esq.

KATZ, ETTIN, LEVINE, KURZWEIL

& WEBER, P.A.

ATTORNEYS AT LAW

Counsel for Petitioner

905 North Kings Highway

Cherry Hill, New Jersey 08034

(609) 667-6440

On the Brief:

ANDREW S. GENETTA, ESQ.

ROBERT SALTZMAN, ESQ.

QUESTIONS PRESENTED FOR REVIEW

1) Whether a recent Gloucester City, New Jersey, billboard

speech ban conflicts with this Court’s decision in Metromedia

v. San Diego, 453 U.S. 499, (1981) and its progeny, thereby

permitting broad, municipal-level censorship of commercial

and non-commercial sign speech.

2) Whether the New Jersey Supreme Court committed re-

versible error in concluding that a simple severance of the

time restrictions from Section 1604.12 of the Gloucester City,

New Jersey, Zoning Ordinance, ruled by that Court to be un-

constitutional, renders the remaining portion of the Ordi-

nance’s ban on outdoor sign speech constitutional, when the

sign Ordinance is still impermissibly content-specific and

fails to satisfy the strict scrutiny test.

3) In the alternative, if the said Opinion of the New Jersey

Supreme Court is interpreted to require severance and dele-

tion of Ordinance Section 1604.12 in its entirety from the

Gloucester City Zoning Ordinance, whether the New Jersey

Supreme Court committed reversible error by permitting

Gloucester City to completely prohibit all off-site non-

commercial outdoor sign speech.

CITATIONS OF THE CASE BELOW

The Judgment of the New Jersey Supreme Court is found at

page Al of the Appendix; there was no formal written Opin-

ion because the Court relied upon the written Opinion of the

Superior Court of New Jersey, Appellate Division, found be-

ginning at page A2 of the Appendix.

JURISDICTIONAL STATEMENT

Jurisdiction of this Honorable Court is conferred by 28

U.S.C. § 1257. The date of the Order sought to be reviewed is

July 10, 1996 and the date same was filed is July 11, 1996.

STATUTORY PROVISIONS INVOLVED

City of Gloucester City, New Jersey Zoning Ordinance Ar-

ticle 1601 et seq. is found at Page All of the Appendix.

iii

TABLE OF CONTENTS

MIIIITIT tele hiabihnetAcsklbsbaiaaeessbuibciacecdatienissnansionesesesnnanns

CONCLUSION/RELIEF REQUESTED...............0....

Ian ie EIT asiccscetntetiedsdnaniendadbisehintbdsieasenssasocesanevne

PETITIONERS APPENDIX/TABLE OF

CONTENTS

1. Unreported Opinion of the New Jersey Supreme

Court C-1232 September Term 1995 42,339......

2. Opinion of the New Jersey Superior Court,

Appellate Division NO. A-005193-94T3 ............

3. Gloucester City New Jersey Zoning Ordinance

8 RSS RI ca

A-1

A-|

A-2

A-1]

iv

TABLE OF AUTHORITIES

Cases: Page

Federal

City of Cincinnati v. Discovery Network,

FOE Oo BE Cee Rinibdinstadidliniecrepenidicnccneiiagnien 9

City of Ladue v. Gilleo, 512 U.S. 43 (1994) 0.0.0.0... 5, 6, 7,9

Metromedia v. San Diego, 453 U.S. 490 (1981)........ . 4. 7,9,

10

Perry Education Association v. Perry Local

Educator's Association, 460 U.S. 37 (1983).......... 7

Rappa v. State of Delaware, 18 F. 3d 1043

CE Sn ED inliidenaniiasscicasicietisseinplaelcindilabilieatuenasiiie 7, 8,9

San Diego Gas & Electric v. San Diego,

Be Cia SER 1 i cicelnchinitnioncmincnee. 11

44 Liquormart, Inc. v. Rhode Island, __US.___,

BD Se. GR. Se 6 ee cctintsinseinninitsensieniasnabiniansdaes 8

State

Bell v. Twp. of Stafford, 541 A. 2d 692

EOC i. GENUI Eks. II kcsietcihderntnscencilerhsinsniesbaanntidiandanmacin 3, 4, 10

Deal Gardens, Inc. v. Board of Trustees of Lock

Arbor, 226 A. 2d 607 (N.J. Sup. Ct. 1967)............ 10

Exxon Co., U.S.A. v. Livingston Township in Essex

County, 489 A. 2d 1218

(NJ. Super. Ct., Ape. Div. 1965) .....0...cccssssosnscsere 10

Gardens v. City of Passaic, 327 A. 2d 250

(N.J. Super. Ct., Law Div. 1974) ...........ccsscccossceees i)

Horizon Health Center v. Felicissimo,

638 A. 2d 1260 (N.J. Sup. Ct. 1994) oo. 7

lla

Page

N.J. Chapt.; Am 1.P. v. N.J. State Bd. of Prof.

Planners, 227 A. 2d 313 (N.J. Sup. Ct. 1967)....... 9

STC Corp. v. Planning Board of Hillsborough,

476 A. 2d 888 (N.J. Super. Ct., App. Div. 1984) .. 10

STATUTES

ETE racineaninssiesapnnnitieheichctsnisinaiechanihaicantacuiibidiaes oy

a I nic tiincniemnesniastiveinasreianianeonisaiiiliaiiines 10

ee Ne cilnstuitinaicinsnesisha\dibadciniiestiiecstaibas 2

LEGAL ANNOTATIONS

44 Hastings Law Journal, 881 (1993) .........::cccccc0es 6

CONSTITUTIONS

United States Constitution, First Amendment........... 2

New Jersey State Constitution, Article I, para. 6....... 2

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

INTERVINE OUTDOOR ADVERTISING, INC.,

Petitioner,

VS.

CITY OF GLOUCESTER CITY ZONING BOARD OF

ADJUSTMENT & CITY OF GLOUCESTER CITY,

Respondents.

ON APPEAL FROM THE SUPREME COURT OF NEW JERSEY

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

STATEMENT OF THE CASE

The parties to this proceeding are fully identified in the

caption of the case in this Court. Petitioner, Intervine Outdoor

Advertising, Inc. (“Intervine”) of Cherry Hill, New Jersey,

entered into an agreement with Holt Cargo Systems (“Holt”)

to lease certain premises located immediately adjacent to the

Walt Whitman Bridge, an interstate highway over the Dela-

ware River connecting Philadelphia with South Jersey, in or-

der to construct three, free-standing, double faced, 960 square

feet outdoor pole signs to display both commercial and non-

commercial messages directly and only to Bridge traffic.

Gloucester City has totally banned the billboards here and

elsewhere throughout the City. The signs’ proposed location

is exclusively within the City’s Industrial/Port & Cargo

Zones, having no residences, but replete with huge

a gn anal

container-cargo ships, cranes, Holt’s marine terminal complex

and warehouses and the interstate highway system of the Walt

Whitman Bridge. The pole signs stand approximately 160 feet

tall and are designed to be visible only to passing Bridge traf-

fic, and not visible to persons in Gloucester City. There are

currently signs on the Philadelphia side of the Bridge.

Intervine formally applied for size, lighting, etc. variances

under N.J.S.A. 40:55D-70 from the Gloucester City Zoning

Board of Adjustment Sign Ordinance (See Page A-11 of Ap-

pendix). The Zoning Board rejected Intervine’s Application

and Intervine filed a Complaint in Lieu of Prerogative Writ;

the Law Division issued a final written Order dismissing In-

tervine’s Complaint. Intervine filed a Notice of Appeal with

the Appellate Division of the Superior Court of New Jersey;

the Appellate Division held that portions of the Ordinance’s

speech ban were indeed unconstitutional but ruled that sever-

ance of the offending portions cured the constitutional defect

(See Page A-2 of Appendix). A Notice of Appeal with a Peti-

tion for Certification was filed in the New Jersey Supreme

Court, which denied Intervine’s Petition for Certification and

dismissed its Appeal on July 11, 1996 in reliance upon the

Appellate Division’s Opinion (See Page A-1 of Appendix).

In its original Complaint in Lieu of Prerogative Writ, in

each Brief before each Court below, and during all oral argu-

ments, Intervine preserved for appeal before this Court its

constitutional arguments: Intervine posited that the instant

Gloucester City Zoning Ordinance is fatally flawed because

the City’s almost complete ban upon all off-premises sign ad-

vertising speech is unconstitutional pursuant to the U.S.

Constitution, First Amendment and the N.J. Constitution, Ar-

ticle I, paragraph 6. Each Court below considered these con-

stitutional issues beginning at the Trial Court level and found

at the Superior Court, Appellate Division’s Opinion at page

A-2 of the attached Appendix; and at the New Jersey Supreme

Court’s Judgment found at page A-1 of the attached Appen-

dix.

.

|

3

The Appellate Division and the Supreme Court both upheld

Intervine’s position that the determination of the constitu-

tionality of the instant Zoning Ordinance vis-a-vis non-

commercial usage was indeed ripe, contrary to the Respon-

dents’ arguments and the determination of the Trial Court.

The two Courts also supported Intervine’s position that the

proposed signs clearly display non-commercial speech includ-

ing the New Jersey State Tax Amnesty Program, Blood

Drives, Political Campaigns, New Jersey State Aquarium and

multiple social, political and charitable causes.

Moreover, the two Lower Courts upheld Intervine’s posi-

tion that the instant Zoning Ordinance as it relates to non-

commercial speech is indeed unconstitutional: both Courts

ruled that the Ordinance Section 1604.12 time limitation upon

non-commercial speech, not found on City commercial

speech regulations, was unnecessary and constituted an un-

constitutional infringement upon protected non-commercial

speech. However, the New Jersey Supreme Court committed

reversible error by ruling that a simple severance of the of-

fending time restrictions from the Zoning Ordinance would

render the remaining parts constitutional as they relate to non-

commercial speech.

Lastly, the Appellate Division and the New Jersey Supreme

Court in reliance thereupon, upheld Intervine’s position that

Section 1604.12 of the Zoning Ordinance was content-

specific and therefore subject to the Court’s most exacting

scrutiny. But the lower Courts improperly concluded that the

instant Zoning Ordinance was the least restrictive means

available to advance a compelling governmental interest since

there is no evidence that traffic, aesthetics or safety are genu-

inely disadvantaged or that less restrictive alternatives were

considered. The Court conducted a “Be//’” hearing pursuant to

Bell v. Twp. of Stafford, 541 A. 2d 692 (N.J. Sup. Ct. 1988) in

which Gloucester City offered testimony as to the rationale

behind its Ordinance which, subject to very limited excep-

tions, effectively prohibits all off-site outdoor sign speech in-

side the City. Testimony elicited established the City

considered no other alternatives to the present broad ban. The

t

New Jersey Supreme Court ruled in Bei/ that such a ban was

unconstitutional. Because the City did mot evaluate any other

‘jess restrictive means to reach its goals this case is essentially

identical to the outdoor sign ban held unconstitutional in

Metromedia v. San Diego, 453 U.S. 490 (1981).

ARGUMENT FOR ALLOWANCE OF THE WRIT

OF CERTIORARI

Where a municipality in the State of New Jersey effectively

bans a regulated, taxed, and lawful industry, which displays

both commercial and non-commercial speech via outdoor

signs, substantial questions under both the United States and

the New Jersey Constitutions are implicated. If the City of

Gloucester City, a fully urban locale with use-compatible In-

dustrial/Port & Cargo Zones, abutting a major interstate river

artery utilized only for heavy commercial transportation and

spanned by an interstate highway bridge, is permitted to en-

force an overly broad sign speech ban predicated upon

and unsubstantiated notions of traffic safety and

aesthetics, then all such speech in New Jersey, and elsewhere,

is threatened by localized, ad hoc censorship and elimination.

This outright ban severely limits the First Amendment ex-

pression of commercial and non-commercial speech, the pro-

motion of regional commerce, property rights, and raises

public policy and other substantial issues which must be re-

solved by this Honorable Court.

Judicial review should determine whether any municipality

in New Jersey has the unilateral ability to select and eliminate

broad categories of speech within its borders even when such

messages are not visible to its inhabitants. The New Jersey

State Legislature declared at N.J.S.A. 27:5-6 that regulation of

Outdoor Signs must balance “safety and natural scenic

beauty” with “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.” Gloucester City’s ban does not satisfy this test.

5

The Opinion of the Appellate Division of the Superior

Court of New Jersey, and the New Jersey Supreme Court in

reliance thereupon, ruled that indeed the relevant portions of

the Zoning Ordinance sub judice were unconstitutional and

that the Zoning Ordinance improperly derogated non-

commercial speech, the most protected form of speech. How-

ever, neither lower Court went far enough since the Zoning

Ordinance at issue is still impermissibly content-specific,

subject to exacting scrutiny to determine if it both genuinely

serves compelling governmental interests and is truly in the

least restrictive means possible drawn.

Gloucester City’s Master Plan/Zoning Ordinance includes

Sub-Section XVI, “Permitted Signs”, within the confines of

the City. The instant sign Ordinance creates a total ban on all

off-premises commercial and non-commercial signs, thereaf-

ter enumerating very limited exceptions to the ban. (See Part

Ill of Appendix).

The Appellate Division, and the New Jersey Supreme

Court in reliance thereupon, ruled Section 1604.12 of the

Zoning Ordinance was clearly suspect because it categorizes

and enumerates “acceptable” non-commercial speech and

then the Courts ruled, unconstitutionally confines same to a

limited time period. Erroneously, the lower Courts ruled that a

simple severance of the offending temporal portion of that

Ordinance cures the constitutional defect. However, severing

the time limitations does not make the Ordinance any less

content-specific and it remains constitutionally invalid: the

municipality still selects only that non-commercial speech

which formally “announces or advertises” a specific

“political, educational, charitable, civic, professional, relig-

ious or like campaign or event”. The protest sign which was

permitted in City of Ladue v. Gilleo, 512 U.S. 43 (1944)

(“Peace in the Gulf”) would clearly not be permitted under

this Ordinance. The Ordinance permits “announcing or ad-

vertising” an “event or campaign” but is limited to a specific

and/or formal fundraiser or meeting; the non commercial

message upheld in Ladue, supra was simply one person’s in-

formal, unsanctioned, commentary about the day’s headlines.

6

In Gloucester City, however, the local politicians or even a

town clerk arbitrarily act as self-appointed speech censors,

choosing what is a specific “campaign or event”; what is

“religious, civic, political, etc.”; and what is an

“announcement or advertisement.” Such a regime cannot

withstand the enacting scrutiny of this Honorable Court in the

application of established precedents.

There is no allowance in Zoning Ordinance Section

1604.12 for outdoor signs of, for example, an unusual or pri-

vate comment: a sign: “Happy Valentine’s Day to my Wife of

Fifty Years” is not permitted under the Ordinance since is not

“political, educational, charitable, etc.” A sign: “Gloucester

City Town Fathers Always Raise Taxes Too Much” would

not be permitted since it is not announcing a specific

“campaign or event”; however, ‘t does constitute an on-going

informal commentary of general, personal dissatisfaction ex-

actly like the message upheld in Ladue, supra. Although dis-

tasteful, would a sign: “Worship Satan” be permitted? Is it a

“religion”? How is it an “event or campaign”? Although un-

usual, would a sign: “O.J. Simpson is Great!” be permitted; is

it an event; is it political, educational, etc.? What goal does

the City promote by affirmatively enumerating the speech it

finds useful; why does it not simply permit ai// non-

commercial speech? Allowing only speech which

“announces or advertises” a specific “campaign or event” sets

the City up as speech-content arbiter but not allowing all

other speech is a fatal flaw.

“Today the central organizing concept of First Amendment

doctrine is the distinction between content-based regulations

and content-neutral ones. Content-based regulations will be

almost never constitutional...” 44 Hastings Law Journal, 881

(1993). Content-specific Ordinances shall be closely scruti-

nized since the government selects the topics of public dis-

course and such regulation is strictly construed under both the

United States Constitution and the New Jersey State Consti-

tution. “For a content-based restriction in a traditional public

forum to be valid, the restriction must pass muster under the

strictest scrutiny: it must be necessary to serve a compelling

7

State interest...narrowily drawn to achieve that end”. Horizon

Health Center v. Felicissimo, 638 A. 2d. 1260 (N.J. Sup. Ct.

1994), quoting Perry Education Association v. Perry Local

Educator's Association, 460 U.S. 37 (1983).

The Appellate Division’s Opinion, and thus the New Jersey

Supreme Court’s reliance thereupon is not clear: it appears on

the one hand to state that severing the time restrictions only

from Ordinance Section 1604.12 is sufficient and on the other

hand, the last full sentence appears to hold that the entire Or-

dinance Section 1604.12 should be severed (last full sentence

of the Appellate Division’s Opinion). If the Opinion is inter-

preted to delete Ordinance Section 1604.12 entirely, then all

off-site non-commercial speech (permitted only via Section

1604.12) is totally excluded City-wide and the Ordinance

must be held to be facially invalid as a total ban. The Zoning

Ordinance must give non-commercial speech the same lati-

tude and freedom as commercial speech and the City clearly

cannot prefer commercial speech over non-commercial

speech. Metromedia, supra.; Rappa v. State of Delaware, 18

F. 3d. 1043 (3rd Cir. 1994).

Conversely, if the Opinion is interpreted to delete the rele-

vant temporal restrictions only and leave intact the remainder

of Zoning Ordinance Section 1604.12, (thereby permitting the

enumerated non-commercial speech but without time restric-

tions,) the Ordinance remains invalid since it still improperly

enumerates “acceptable” non-commercial speech. Gloucester

City selectively censors which speech it will permit and de-

cides what is “political, religious, etc.,” and further decides

what is a specific “campaign or event” and what is an

“announcement or advertisement”.

This Court, using the strict scrutiny test, enunciated in

Ladue, supra. should find that no compelling Gloucester City

governmental interest is genuinely served by this total speech

ban and that the instant Zoning Ordinance is not narrowly

drawn. Excluding personal speech but permitting arbitrarily

defined speech is illogical and does not serve any compelling

interest. Further, excluding constitutionality-protected speech

in the City’s Industrial/Port & Cargo Zones, with huge ships,

cranes and marine warehouses, hardly serves the proffered

interests of traffic safety, property values or aesthetics, par-

ticularly when such speech is only visible to bridge traffic on

an interstate highway.

As this Court recently found in 44 Liguormart, Inc. v.

Rhode Island, U.S. __, 116 S. Ct. 1495 (1996) the regu-

lating body bears the burden of showing not merely that its

regulation will advance its interest, but also that it will do so

to a material degree. Likewise, there is no justification for

such broad sign speech limitations everywhere in Gloucester

City, particularly the proposed fully industrialized location

and especially when the signs are not visible to Gloucester’s

residents. And as noted above, the Gloucester City Planning

Board concedes that it never even considered a less restrictive

means to target its goals.

Further illustrating the lower New Jersey Court’s misappli-

cation of the law to the Ordinance, they ignore the companion

Gloucester City Zoning Ordinance Section 1604.1 which

permits ail “signs erected by governmental agencies”. Such a

broad exception favoring government signs was considered

improper under Rappa, supra; the Third Circuit found the

government had no greater ability to post all of its signs than

would a private user and that it did not have a monopoly on

censorship of signs such that every governmental sign would

be permitted regardless of content or need. However, severing

Section 1604.1 would not render the instant Zoning Ordi-

nance constitutional since doing so would effectively prohibit

all government signs; only amendment will work.

The Gloucester City Zoning Ordinance at companion Sec-

tion 1604.6 also improperly favors one form commercial

speech over another by permitting signs for construction work

being done on a premises. That Ordinance favors construction

work but does not permit, for example, an architect, account-

ant or roofer to place a sign at the location where he/she is

doing a great deal of work. There is scant logic in permitting

such broad commercial speech in residential areas for home

9

contractors when all other such residential or other Zone

speech/advertising is banned in terms of aesthetics, etc. This

Ordinance speech exception is similar to the issue raised in

City of Cincinnati v. Discovery Network 502 U.S. 410 (1993),

in which this Court held that a partial ban on commercial

speech did not genuinely serve aesthetics or safety. Zoning

Ordinance Section 1604.6 clearly favors commercial speech

over non-commercial speech and certain types of commercial

speech over other types, also contrary to Metromedia, supra.

Severing Section 1604.6 would not render the Ordinance

constitutional; only amendment will work.

With respect to the lower Court’s proposed “solution” of

severance, the validity of a Zoning Ordinance from which a

provision has been severed is contingent upon whether the

remaining portion is functionally self-sufficient and still con-

tains the essentials of a complete enactment. Gardens v. City

of Passaic, 327 A.2d 250 (N.J. Super. Ct., L. Div. 1974); N.J.

Chapt.; Am LP. v. N.J. State Bd. of Prof. Planners, 227 A. 2d

313 (N.J. Sup. Ct. 1962).

But as the Third Circuit stated in Rappa, supra, at 1072:

“eliminating the offending exception (to a speech ban) would

mean that we would be requiring the State to restrict more

speech than it currently does...To our knowledge, no Court

has mandated issuance of an injunction such as that, and we

decline to be first.” And as this Court stated in Ladue, supra

at _, 114 S. Ct. 2038 at 2043: “...the City might theoreti-

cally remove the defects in the Ordinance by simply repealing

all the exemptions. If, however, the Ordinance is also vulner-

able because it prohibits too much speech, that solution would

not save it.” Assuming arguendo the Gloucester City Zoning

Ordinance may permissibly enumerate non-commercial

speech, the City can do so only by formal amendment and not

by severance; however, Intervine’s rights are vested and re-

mand to permit amendment should not be allowed at this late

date.

Only the intervention of this Honorable Court can redress

the wrongs done below and bring the Gloucester C ity, New

| ae me

10

Jersey Ordinance into conformity with the settled law of the

land as embodied in Metromedia, supra. and its progeny.

CONCLUSION/RELIEF REQUESTED

Petitioner seeks a determination that the Gloucester City

Ordinance, as interpreted by the Lower Courts, is unconstitu-

tional and that this case be remanded for entry of an appro-

priate Order providing for the variance sought by Petitioner in

its original Application. If the Gloucester City Zoning Ordi-

nance under which Intervine made its variance Application is

held unconstitutionally void, Intervine is entitled to the relief

requested therein and the status of the Gloucester City Master

Plan/Zoning Ordinance at the time of the Application is con-

trolling. If the City now adopts a new Zoning Ordinance re-

stricting the use or bulk requirements necessary to permit the

proposed use, then those requirements will simply constitute a

non-conforming but vested, permitted use such as provided in

N.J.S.A. 40:55D-68.

In Bell, supra, the New Jersey Supreme Court invalidated a

similar Zoning Ordinance and noted that Stafford Township

was not prevented from enacting an Ordinance satisfying the

constitutional imperatives; however, the Court did not stay its

decision pending reenactment of such an Ordinance; see also

STC Corp. v. Planning Board of Hillsborough, 476 A. 2d 888

(N.J. Super. Ct., App. Div. 1984) in support.

There is no legal or equitable requirement that this Court

make available to Gloucester City an additional opportunity

to revise or reexamine its Zoning Ordinance to cure the inva-

lidity. Here, Intervine first applied for use and other variances

and has exhausted all of its administrative remedies before the

Zoning Board of Adjustment and only then appealed. The

situation is unlike and distinguishable from those in either

Exxon Co., U.S.A. v. Livingston Township in Essex County,

489 A. 2d 1218 (N.J. Super. Ct., App. Div. 1985), or the Deal

Gardens, Inc. v. Board of Trustees of Lock Arbor, 226 A. 2d

607 (N.J. Sup. Ct. 1967) case upon which it relies in which

those Courts permitted amendment.

il

Vesting will avoid what Justice Brennan, in San Diego Gas

& Electric v. San Diego, 450 U.S. 621 (1987), said was ad-

vice given to the City attorney about how to respond (and

frustrate an Applicant) when a land use regulation is stricken

by a Court: “if all else fails, merely amend the regulation and

start over again.”

Respectfully submitted,

KATZ, ETTIN, LEVINE, KURZWEIL

& WEBER, P.C.

Attorneys for Petitioner

Lewis yc Esq {

By: VY

MARTIN S. ETTIN, ESQUIRE

DATED: Bet, % 1996

/

1

APPENDIX

A-1

SUPREME COURT OF NEW JERSEY

C-1232 September Term 1995

42,339

INTERVINE OUTDOOR

ADVERTISING, INC.,

Plaintiff-Petitioner,

V. ON PETITION FOR

CITY OF GLOUCESTER CITY CERTIFICATION

ZONING BOARD OF

ADJUSTMENT, CITY OF

GLOUCESTER CITY,

Defendants-Respondents.

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-5193-94

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is denied,

with costs; and it is further

ORDERED that the appeal filed in the within matter is

dismissed pursuant to Rule 2:12-9.

WITNESS, the Honorable Alan B. Handler, Presiding Jus-

tice, at Trenton, this 10th day of July, 1996.

/s/ Stephen W. Townsend

CLERK OF THE SUPREME COURT

A-2

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-5193-94T3

INTERVINE OUTDOOR

ADVERTISING, INC.,

Plaintiff-Appellant,

V.

CITY OF GLOUCESTER CITY

ZONING BOARD OF

ADJUSTMENT and CITY OF

GLOUCESTER CITY,

Defendants-Respondents.

Argued March 26, 1996 - Decided May 02 1996

Before Judges Michels, Villanueva, and Kimmelman.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County.

Martin S. Ettin argued the cause for appellant (Katz,

Ettin, Levine, Kurzweil & Weber, attorneys; Andrew

S. Genetta and Mr. Ettin, on the brief).

Barry J. Beran argued the cause for respondent City of

Gloucester City Zoning Board of Adjustment (Beran

& Beran, attorneys; Gail R. Beran and Mr. Beran, on

the brief).

A-3

M. James Maley, Jr. argued the cause for respondent

City of Gloucester City (Maley, Williamson, Hayden

& Gmerek, attorneys; Mr. Maley and Charles W.

Wigginton, on the brief).

The opinion of the court was delivered by

KIMMELMAN, J.A.D (temporarily assigned).

Plaintiff Intervine Outdoor Advertising, Inc. appeals from a

judgment of the Law Division which affirmed the denial by

defendant City of Gloucester City Zoning Board of Adjust-

ment (Board) of plaintiff's application for a use and bulk vari-

ance to construct three freestanding billboards on property it

intends to lease adjacent to the New Jersey approach to the

Walt Whitman Bridge. Plaintiff's complaint in lieu of pre-

rogative writs also joined as a defendant the City of Glouces-

ter City (City), contending that the zoning ordinance was

invalid because the City had not reexamined its master plan

and zoning regulations within six years as required by

N.J.S.A, 40:55D-89, and that, if not invalid, the zoning ordi-

nance was otherwise unconstitutional. The Law Division re-

jected these claims, upholding the validity of the zoning

ordinance.

We affirm the denial of plaintiff's application for a use and

bulk variance and affirm that portion of the judgment entered

April 14, 1995, which upheld the City’s compliance with

N.J.S.A. 40:55D-89 and which also upheld the constitutional-

ity of the zoning ordinance insofar as it regulates commercial

speech with respect to the sign regulations. The trial court did

not reach the question as to the constitutionality of the sign

regulations applicable to noncommercial speech. However,

we find unconstitutional that part of the sign regulations

which limits noncommercial speech contained in signs to a

temporary basis not to exceed a consecutive period of sixty

days in any calendar year. Since we do not find the constitu-

tional defect to require invalidation of the entirety of the sign

regulations contained in the zoning ordinance, but only to re-

quire severance of the offending language from the noncom-

mercial sign regulations, the remaining provisions survive.

A-4

Plaintiff is a company engaged in erecting and maintaining

freestanding, outdoor advertising structures. It has entered

into an arrangement with Holt Cargo Systems, Inc., the owner

of the subject property, to lease the property for the erection

of billboards. The property site is located in the Port and

Cargo Handling Zone of the City’s zoning ordinance, wherein

the permitted uses pertain to the maintenance of piers, ware-

houses, and like facilities for the operation of businesses re-

lated to the receipt, temporary storage, and transfer of cargo.

A use not specifically permitted in that particular zone, such

as the erection and maintenance of signs, is prohibited under

the ordinance. The site is also located in the Shoreline Over-

lay District, which includes lands within 500 feet of the

Delaware River shorelines. Among the stated purposes for

creating this district are the encouragement of public use and

enjoyment of the shorelines and the enhancement and increase

of views and access to the water. An objective of the City’s

1985 master plan is eventually to rezone the waterfront area

from industrial to mixed-use development and to clean up and

beautify the entrances to the City by various techniques,

which include prohibiting new billboards and attempting to

retire old ones.

Plaintiff proposes to construct three double-faced, steel,

freestanding pole signs, one on the south side of the Walt

Whitman Bridge and two on the north side. Each sign would

be externally lit at the bottom, measuring 16 feet by 60 feet,

and would be located approximately 30 feet above the bridge

roadway, approximately 90 feet above the ground, and ap-

proximately 30 feet from the bridge rights-of-way. In addition

to commercial advertisements, plaintiff proposes to use the

reverse side of the signs for noncommercial advertisements

and messages such as promoting the New Jersey State

Aquarium, the New Jersey State Tax Amnesty Program, the

Franklin Institute, and political campaigns. Similar noncom-

mercial billboards are located adjacent to the bridge on the

Pennsylvania side.

After considering the application and the testimony pre-

sented in support and against thereof, the Board concluded

A-5

that plaintiff's application was a substantial departure from

the signage requirements of the zoning ordinance, that the

application could not be granted without substantial detriment

to the public health, safety, and welfare of the City, and that

plaintiff had not shown any special reasons why the applica-

tion should be granted in view of the detriments. See N.J.S.A.

40:55D-70d.

We are satisfied, based upon the thorough and well-

reasoned letter opinion of Judge Theodore Z. Davis, that the

Board’s denial of plaintiff's application for a use and bulk

variance finds support in the evidence and was not arbitrary,

capricious, or unreasonable. Booth v. Board of Adj. of Rocka-

way, 50 N.J. 302, 306 (1967). Judge Davis also correctly held

that the City had complied with N.J.S.A. 40:55D-89, which

provides in pertinent part:

The governing body shall, at least every six

years, provide for a general reexamination of its

master plan and development regulations by the

planning board, which shall prepare and adopt by

resolution a report on the findings of such reexami-

nation, a copy of which report and resolution shall

be sent to the county planning board and the mu-

nicipal clerk of each adjoining municipality. . . .

On April 15, 1991, within the six-year statutory period, the

City adopted resolution #67, which reads:

WHEREAS, the Planning Board of the City of

Gloucester City has conducted a review and re-

examination of the existing Master Plan for the City

of Gloucester City;

WHEREAS, the Planning Board of the City of

Gloucester City has recommended that the Mayor

and Council of the City approve and adopt the exist-

ing Master Plan for the City;

WHEREAS, the Mayor and Council is satisfied

that the Planning Board has conducted a general re-

examination of the City’s Master Plan and

4%

A-6

Development Regulations and has reported to

Mayor and Council its recommendation that the

existing Master Plan be readopted;

NOW, THEREFORE, BE IT RESOLVED, by

Mayor and Council of the City of Gloucester City

that the existing Master Plan is hereby readopted in

accordance with N.J.S.A. 40:55D-89 and that the

Master Plan shall continue in full force and effect

unless otherwise provided by law.

Although proof was not submitted that the planning board

had prepared a formal report and that a copy of the report had

been submitted to the county planning board, sufficient evi-

dence was submitted to the trial court showing that the master

plan and zoning ordinance had been reviewed and examined

continually by the planning board over the years in question.

Such proof raised a debatable question as to the reexamina-

tion of the master plan and zoning regulations and, therefore,

was sufficient to overcome the statutory rebuttable presump-

tion of unreasonableness required by N.J.S.A. 40:55D-89.1.

The rebuttable presumption of unreasonableness having been

overcome, the presumption of validity inherent in the munici-

pal enactment then reattaches, as found by Judge Davis. See

Lionshead Woods Corp. v. Kaplan Bros., 243 N.J. Super. 678,

684-85 (Law Div. 1990).

With respect to the constitutionality of the sign regulations,

we agree with Judge Davis’s reasoning and conclusion that

the sign regulations applicable to commercial speech were not

constitutionally infirm. Judge Davis held a so-called “Bell

hearing” pursuant to Beil v. Stafford Township, 110 N.J. 384,

396-97 (1988), and determined that there were compelling

governmental interests that supported the regulations appli-

cable to commercial signs. Judge Davis did not reach the

question as to whether the City’s sign regulations applicable

to noncommercial speech pass constitutional muster. How-

ever, we find the sign regulations applicable to noncommer-

cial speech to be unconstitutional.

st At be ifs boats

A-7

The City’s zoning ordinance, Section 1604, subsection 12,

applicable to noncommercial signs other than governmental,

directional, and traffic control signs and devices, permits:

Temporary signs announcing or advertising any

political, educational, charitable, civic, professional,

religious, or like campaign or event for a consecu-

tive period not to exceed sixty (60) days in any cal-

endar year, providing they do not exceed fifty (50)

square feet in size.

[Gloucester City, N.J., Ordinance 81 (April 2,

1987).]

Thus, noncommercial signs and billboards conveying a

political message or, for example, promoting the New Jersey

Tax Amnesty program or urging visits to the New Jersey

State Aquarium must be temporary in nature, not to exceed

sixty days in any calendar year. The zoning ordinance im-

poses no time limitation, however, upon commercial signs. In

effect, the zoning ordinance does not give noncommercial

speech the same latitude or freedom as afforded to commer-

cial speech. While we have no quarrel with defendants’

overall desire to restrict the erection of billboards because of

their generalized concern for safety and aesthetic purposes,

see Bell v. Stafford Tp., supra, 110 N.J. at 393 (1988); State v.

Miller, 83 N.J. 402, 409 (1980); United Advertising Corp. v.

Borough of Metuchen, 42 N.J. 1, 5-6 (1964), we must ques-

tion the limitation on the right of free speech implicit in the

requirement that noncommercial signs be temporary in nature.

In weighing the constitutionality of the zoning ordinance as

applied to noncommercial signs, a court must focus upon

whether the temporal restrictions imposed by the municipality

upon noncommercial signs are content-neutral or content-

based. Rappa v. New Castle County, 18 F.3d 1043, 1053 (3d

Cir. 1994),

If the restriction is content-based, then the regulation is

subjected to the most exacting scrutiny, and the municipality

is required to show that the regulation is necessary to serve a

A-8

compelling municipal interest and that it is narrowly drawn to

achieve that end. Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct.

1157, 1164, 99 L. Ed. 2d 333, 344-45 (1988); Whitton v. City

of Gladstone, MO., 54 F.3d 1400, 1408 (8th Cir. 1995); Hori-

zon Health Ctr. v. Felicissimo, 135 N.J. 126, 140 (1994). If

the restriction is content-neutral, then it is analyzed under a

time, place and manner standard to determine whether it

serves a significant governmental interest and leaves open

ample alternative channels for communication of the infor-

mation. Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817,

1830, 48 L. Ed. 2d 346, 363-64 (1976); Whitton, supra, 54 F-

3d at 1403; Rappa, supra, 18 F. 3d at 1054; McCormack v.

Township of Clinton, 872 F. Supp. 1320, 1323 (D.N.J. 1994);

State v. Miller; supra, 83 N.J. at 412.

Here, the temporal restrictions placed upon noncommercial

speech clearly impose a content-based regulation on subsec-

tion 12 of Section 1604 of the zoning ordinance. It is the

wording or message sought to be conveyed by a given sign

that dictates the durational life of the sign. Hence, the regula-

tion in question is clearly content-based. Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 516, 101 S. Ct. 2882, 2897,

69 L. Ed. 2d 800, 820 (1981); Whitton, supra, 54 F. 3d 1403-

04; Rappa, supra; National Advertising Co. v. Town of

Babylon, 703 F. Supp. 228, 238-39 (E.D.N.Y. 1989), aff'd in

part, rev'd in part, 900 F.2d 551 (2d Cir. 1990), cert. denied,

498 U.S. 852, 111 S. Ct. 146, 112 L. Ed. 2d 112 (1990).

We fail to discern the compelling governmental interest

sought to be protected by the blanket restriction making tem-

porary all forms of noncommercial signs. In our view, the

relegation of all noncommercial signs to a temporary life cre-

ates an impermissible distinction between commercial and

noncommercial speech. Metromedia, Inc., supra.

As said in National Advertising Co., supra,

[I]n order to pass constitutional muster, a sign ordi-

nance, to the extent that it regulates non-commercial

speech, may neither regulate such speech more

A-9

stringently than it does commercial speech nor

demonstrate a preference for the subject matter of

certain non-commercial speech over other non-

commercial speech.

(703 F. Supp. at 237.]

Accordingly, the temporal restrictions contained in subsec-

tion 12 of section 1604 of the sign provisions of the zoning

ordinance are unconstitutional U.S. Const. amend. I; NJ.

Const. art. 1, § 6; Metromedia, Inc., supra, Whitton, supra;

Rappa, supra; National Advertising Co., supra.

We make no ruling with respect to the square-footage

limitation imposed on noncommercial signs. That issue has

not been raised or argued. However, we do note a pertinent

statement in State v. Miller, supra:

Limitations on the size of a sign may be imposed

if the allowable square footage is not determined in

an arbitrary manner. The size limits, if any, must be

large enough to permit viewing from the road, both

by persons in vehicles and on foot. Inadequate sign

dimensions may strongly impair the free flow of

protected speech.

[83 NJ. at 416.]

The United States District Court in National Advertising

Company, supra, rather than striking the entirety of the mu-

nicipal ordinance found to make an unconstitutional distinc-

tion between commercial and noncommercial speech,

narrowly tailored its constitutionally-based injunctive relief,

holding only that the municipality may not enforce that por-

tion of the ordinance that disadvantaged noncommercial

speech. 703 F. Supp. at 240. On appeal, the Second Circuit

reversed the District Court only with respect to the limitation

of the constitutional ban to that portion of the ordinance that

disfavored noncommercial speech. There was no severability

clause in the ordinance that would justify saving the remain-

ing portions, and hence, the entire ordinance was struck down.

900 F.2d at 557.

A-10

Fortunately for defendants, the ordinance in question be-

fore the court does have a severance clause which provides:

Should any section or provision of this Ordinance

for any reason be declared invalid by the Courts,

such decision shall not effect [sic] the validity of

this Ordinance as a whole or any other part thereof.

The presence of such a clause raises, at the minimum, a re-

buttable presumption of severability. Helmsley v. Borough of

Fort Lee, 78 N.J. 200, 237 (1978), appeal dismissed, 440 U.S.

978, 99 S. Ct. 1782, 60 L. Ed. 2d 237 (1979), clarified, 82

N.J. 128 (1980). We believe the commercial sign provisions

of the ordinance can stand in the absence of the time restric-

tions contained in the noncommercial sign provision. In ef-

fect, the absence of the temporal restrictions contained in

subsection 12 of Section 1604 will not preclude noncommer-

cial signs and will not truncate the entirety of the sign provi-

sions into incomprehensibility. We shall observe the

severance clause.

For the reasons set forth, we affirm the judgment of April

14, 1995, entered by Judge Davis, but find subsection 12 of

Section 1604 of the City’s zoning ordinance to be unconstitu-

tional and, therefore, unenforceable.

A-l1

ARTICLE XVI

SIGNS

SECTION 1601. PURPOSE. The purpose for this Article

shall be the creation of a system of regulations for the review,

erection and maintenance of signs within the City of

Gloucester City.

SECTION 1602. DEFINITIONS. For the purpose of this

Article the following definitions shall apply:

l.

Banner sign. A temporary sign composed of light-

weight material either enclosed or not enclosed in a

rigid form secured or mounted so as to allow move-

ment of the sign caused by movement in the atmos-

phere.

Building facade and building facade area. That portion

of any exterior elevation of a building extended from

grade to the top of the parapet wall or eaves and the

entire width of the building elevation.

Changeable copy sign. A sign on which any manual,

mechanical, or lightning effects can have its copy or

message changed from any reworking of the sign.

Free standing sign. A pole, ground, or pylon sign not

attached to a building or structure.

Functional sign. A directional sign; a sign indicating

the location of rest rooms, telephones, first aid sta-

tions, and similar public convenience facilities: and

signs located on mechanical dispensing equipment

that identifies a product.

Marquee or canopy sign. Any sign attached to a fixed

shelter or roof extending over a building line which is

supported by the building to which it is attached.

Mobile sign. A sign not permanently attached to the

ground or a building including any sign mounted on or

attached to a vehicle which is not capable of

10.

ll.

12.

13.

14.

A-12

self-propulsion and registered with the New Jersey

Division of Motor Vehicles.

Parapet. The portion of a building wall that rises

above the roof level.

Pole or pylon sign. A sign mounted on, or supported

by or suspended from a free-standing column, pipe or

pole.

Projected sign. A sign casted, reflected or shown on a

wall screen, or other surface whether for a continuous

period or not.

Roof sign. A sign erected upon, against, or directly

above a roof or on top of or above the parapet of a

building.

Sign. A name, identification, description, illustration,

or any other visual display which is affixed to, painted

on, or represented directly or indirectly, upon any

building, structure or land and which directs attention

to an organization, business, product, service or indi-

vidual.

Sign area. The entire space within a sign’s continuous

perimeter enclosing the extreme limits of all words,

devices, or emblems but not passing through or be-

tween any adjacent elements. In computing the area of

a sign with two (2) display surfaces, the area of the

larger surface shall be considered the sign area. The

area shall be computed by adding the total surface area

of the sign and dividing by the number of display sur-

faces utilized by the sign. The display surface of a sign

shall mean all side and faces of a sign that can be

viewed from one (1) location.

Under canopy signs. A sign attached to the underside

of a canopy.

Se re ae es ee ee ee

A-13

15. Wall sign or facade sign. A sign attached to or erected

against the wall of a building with the face in a paral-

lel plane to the place of the building wall.

SECTION 1603. GENERAL REGULATIONS. The fol-

lowing regulation shall govern signs for all uses within the

City:

1. All signs shall be subject to the provisions of the

building, construction, maintenance, and fire codes of

the City.

2. The text of all signs shall be limited to identification

and functional purposes only. Identification signs shall

contain the principal name of the establishment, firm

or proprietor, its address, and a brief description of the

goods or services offered. The text of a sign may also

include a logogram or symbol of the use which it

identifies.

3. The provisions of this Article shall not apply to works

of art, statues, sculpture, fountains, holiday decora-

tions and similar objects which do not fall within the

definition of a sign contained in Section 1402 of this

Article.

4. Maintenance. The area surrounding a sign shall be

kept clean, free of litter, and landscaped. Whenever a

sign shall become structurally unsound or a hazard to

the public or a building, the building inspector shall

order that the sign be made safe or removed. Such or-

der shall be complied with within ten (10) days of the

receipt therof by the person owning or using the

5. No sign except functional signs, shall be located

within twenty (20) feet of the existing or proposed

right-of-way of any public road or street.

; 6. No sign shall exceed twenty (20) feet in height.

7. No wall sign shall extend beyond the building facade

on which it is mounted.

10.

11.

12.

A-14

All signs shall conform to the provisions of Title 27 of

the New Jersey State Statues.

No sign shall be erected or placed in a position which

will cause danger to traffic on a street or within a

parking lot by limiting the vision of drivers or ob-

structing the flow of traffic.

Signs advertising or identifying a business or use no

longer in existence or a product no longer available

shall be promptly removed.

No sign shall be erected containing information on it

which states or implies that a property may be used for

any purpose not permitted under the provisions of the

City’s Zoning Ordinance as it applies to the property

on which the sign is located.

No sign shall be illuminated between the hours of 10

p.m. and 7 a.m. the following morning, unless the

business or use so advertised is open to the public later

than 10 p.m. in which case the establishment may

keep its sign illuminated until the business closes, but

not after.

SECTION 1604. PERMITTED SIGNS. the following signs

shall be permitted within the City of Gloucester in accordance

with the provisions of this Article:

es

Signs erected by governmental agencies; court or

public notices; traffic control devices approved or in-

stalled by the appropriate governmental agencies; and

flags, emblems, and insignias of governmental and re-

ligious institutions.

One (1) non-illuminated or white light sign not ex-

ceeding nine (9) inches by eighteen (18) inches and

either free standing or affixed to a building which:

a. Contains a message of caution, pertains to

tresspassing, identifies a driveway or bears a relatd

cautionary text.

A-15

b. Identifies the name and occupation of the practitio-

ner of a profession or trade.

- One (1) non-illuminated or white-lighted non-flashing

sign for schools, churches, hospitals, clubs, lodges, or

other similar use provided that the size of any one (1)

side of the sign shall not exceed twelve (12) feet.

When a building or lot fronts on more than one (1)

street, an additional sign may be erected which meets

the requirements of this paragraph.

. One (1) non-illuminated real estate sign advertising

the sale or rental of a building or lot provided such

sign does not exceed twelve (12) square feet. When a

building or lot fronts on more than one (1) street, an

additional sign may be erected which meets the re-

quirements of this paragraph.

. One (1) non-illuminated real estate sign bearing the

word “SOLD” or “RENTED” with the name of the

person or firm affecting the sale or rental, provided

such sign does not exceed twelve (12) square feet.

. One (1) non-illuminated sign bearing the name and

profession or trade for each person or firm performing

construction or repair work on the premises, provided

such individual signs do not exceed twelve (12) square

feet in area, and are promptly removed upon comple-

tion of the work.

. For business, office, commercial/industrial, and insti-

tutional uses: functional signs as defined in Section

1601, provided that no functional sign shall exceed

twelve (12) square feet in sign area and that no func-

tional sign shall contain advertising. 7

. For business, office, commercial and institutional and

building which faces an approved public street pro-

vided that the sign area does not exceed five (5) per-

cent of the building facade area as defined in Section

1602 on which it is mounted.

10.

11.

12.

13.

A-16

For business, office, commercial and industrial uses:

One (1) free-standing sign provided that the sign area

does not exceed ten (10) percent of the builing facade

area as defined in Section 1602, which it adjoins, or a

maximum sign area of one hundred (100) square feet.

No shopping center, office complex, or other business

or industrial development or property shall have more

than one (1) free-standing sign.

For shopping centers or strip stores: One (1) under-

canopy sign for each business use provided that the

dimensions of the sign shall not exceed non (1) foot in

weight or four (4) feet in length.

For movie theaters, theaters, and sports areas: those

signs permitted by paragraphs 8 and 9 above, plus one

(1) changeable copy sign with a maximum sign area of

one hundred (100) square feet.

Temporary signs announcing or advertising any politi-

cal, educational, charitable, civic, professional, relig-

ious, or like campaign or event for a consecutive

period not to exceed sixty (60) days in any calendar

year, providing they do not exceed fifty (50) square

feet in size.

Signs identifying a residential area or apartment com-

plex provided that not more than one (1) sign shall be

located at each principal entrance to the project, not

more than three (3) signs permitted for any one (1)

project and that the sign contain only the name of the

development and a logogram or symbol and that its

size not exceed forty (40) square feet in size area.

SECTION 1605. PROHIBITED SIGNS. Although it should

be understood that any sign not complying with the provi-

sions of this Article is prohibited, the following types of signs

are specifically prohibited.:

l.

Flashing, moving, or apparent moving signs except the

changeable copy signs permitted by Section 1604. and time

and temperature signs.

A-17

2. Signs with any lighting or control mechanism which

may cause radio or television interference.

3. Any series of two (2) or more signs or sign units

placed in a line along a roadway or in similar fashion

all carrying a single message part of which is con-

tained or each sign.

4. No signs shall be erected, located, affixed or painted

on trees, rocks, curbs, walks, or utility poles.

(Amended October 3, 1991)