Billboard Ban Upheld in Mount Laurel, New Jersey

The case of Interstate Outdoor Advertising, LP v. Zoning Board of the Township of Mount Laurel, et al., decided February 11, 2013 by the Third Circuit Court of Appeals, calls to mind an expression commonly heard within the billboard industry: "there is law and then there is billboard law." It also prompts the thought that bad facts make bad law — here, the billboard company opportunistically sought approval at one time for nine billboard locations along Interstate 295 in New Jersey where no billboards existed. From gleaning the decision, the case below appeared to be a "go for broke" litigation for both sides with Interstate ultimately ending up as the loser. Relying exclusively on the dated MetroMedia decision, the Third Circuit affirmed the United States District Court's grant of summary judgment in favor of the Zoning Board and the Township.

Interstate had filed development applications for nine outdoor advertising sign locations along Interstate 295, which in the Mount Laurel area is a six lane limited access highway. Hearings on four of the applications were ongoing when the Township adopted an ordinance which became the subject of the challenge as it banned billboards on the basis of aesthetics and traffic safety listing a number of municipal goals and purposes. While Mount Laurel had regulated signs since 1988, the 2008 Ordinance incorporated new provisions which allowed for privately-owned signs to display both commercial and non-commercial messages and provided that enforcement of signs would be accomplished in a content-neutral fashion. After the passage of the Ordinance, Interstate filed in Federal Court alleging that the Ordinance violated the First Amendment guarantee of free speech. After discovery, Mount Laurel filed a motion for summary judgment which was granted by the District Court. The trial judge analyzed the Ordinance's constitutionality under the four-part test applicable to commercial speech that is set out in Central Hudson Gas & Electric Corp v. The Public Service Commission of NY, 447 U.S. 557 (1980). On appeal by Interstate, the Third Circuit affirmed the grant of summary judgment.

The Third Circuit acknowledged that the Mount Laurel had the burden of establishing the constitutionality of the Ordinance. In so doing, the court observed that a municipality must demonstrate a substantial governmental interest which is advanced no more extensively and necessary, and such demonstration cannot be mere speculation or...