State Supreme Court Rules Township Digital Billboard Ban Unconstitutional

12-18-13 Planning Board1

Attorney Francis Linnus, pictured here at the December 2013 Planning Board, successfully argued the case for E&B Properties before the state Supreme Court.

The state Supreme Court has declared unconstitutional the township’s ban on digital billboards.

The court made its decision on Sept. 15. The case was argued in March. In making its ruling, the Supreme Court reversed an earlier decision by the state Appellate Court, which had found in favor of the township.

In making its decision, the Supreme Court seems to have cleared the way for the plaintiff in the case, E&B Properties, to erect its digital billboard near Grant Street and Davidson Avenue. The company won Planning Board approval for the billboard in December 2013, even though the court case was still unsettled.

Holding that a digital billboard is a “form of communication that is subject to the protection of the First Amendment,” the state’s highest court ruled that the township’s desire to ban digital billboards based on safety and aesthetic concerns “does not carry the day.”

“Here, the Township, citing aesthetic and public safety concerns, permitted billboards to be installed in a single zoning district proximate to a heavily travelled interstate highway but prohibited digital billboards in the same zone,” the court’s ruling reads. “Nevertheless, the record provides scant support for several propositions that informed the Township’s decision and no support for the decision that the aesthetics of three billboards are more palatable than the aesthetics of a single digital billboard.”

The Township Council passed an ordinance in 2010 banning digital billboards within Franklin. The township does allow static billboards in the M-2 Light Manufacturing zone, which borders Route 287.

That ordinance followed a two-year study of the township’s sign ordinances, during which the Planning Board decided to bar digital billboards, and let the question of the appropriateness of the signs be decided by the Zoning Board of Adjustment if such an application was brought before it.

During that time, E&B Properties submitted an application for a digital billboard on property it owns along the Rt. 287 corridor. While receiving a 4-2 vote in favor of the proposal, it did not receive the statutorily mandated five votes, so it failed.

E&B took the Zoning Board and township to court, claiming that the decision violated its First Amendment rights.

A state Superior Court judge agreed with them, but his decision was overruled in October 2014 by the state Appellate Court.

Township planning officials maintained that there were no credible studies to show whether digital billboards had any affect on the rate of automobile accidents, or of their safety in general.

But, the Supreme Court’s decision noted, “the record reveals the existence of a considerable body of literature discussing the impact, or lack thereof, of digital billboards on traffic safety and standards that can be applied to such devices to enhance traffic safety and mitigate aesthetic concerns. A respected report concluded its exhaustive review of the impact of such devices stating that ample information existed to make informed decisions about such devices.”

The court also noted that the state Department of Transportation had created regulations governing freestanding digital billboards, and that there are digital billboards along Rt. 287 in neighboring towns.

“It appears that standards were available to the Township to inform its decision-making,” the court wrote.

The court also did not accept the township’s contention that digital billboards could increase accidents along Rt. 287, an area which already has a high rate of collisions. Those accidents, the court noted, could be caused by any number of factors.

“In sum, we do not quarrel with the proposition that aesthetics and public safety are substantial government interests, particularly when the medium of expression is an outdoor, off-premises advertising device,” the court wrote. “On the other hand, a governing body seeking to restrict expression cannot simply invoke those interests with scant factual support informing its decision-making and expect to withstand a constitutional challenge.”

“In the end, the record provides no explanation of the qualitative differences between three static billboards and a single digital billboard,” the decision reads. “The record also belies the assertion that no standards existed to address aesthetic and public safety concerns. This absence requires us to declare (the township’s ordinance) unconstitutional.”

It’s not clear if the township will pursue the matter.

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