706 F.3d 527 (3rd Cir. 2013), 11-3837, Interstate Outdoor Advertising, L.P. v. Zoning Bd. of Tp. of Mount Laurel

Docket Nº:11-3837.
Citation:706 F.3d 527
Opinion Judge:McKEE, Chief Judge.
Attorney:Louis L. D'Arminio, Esq. (Argued), Reginald Jenkins, Esq., Price, Meese, Shulman & D'Arminio, P.C., Woodcliff Lake, NJ, for Appellant. Christopher J. Norman, Esq. (Argued), Raymond, Coleman, Heinold & Norman, LP, Moorestown, NJ, George J. Botcheos, Esq., West Berlin, NJ, for Appellee Township of ...
Judge Panel:Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.
Case Date:February 11, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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706 F.3d 527 (3rd Cir. 2013)



ZONING BOARD OF the TOWNSHIP OF MOUNT LAUREL and The Township of Mount Laurel.

No. 11-3837.

United States Court of Appeals, Third Circuit.

February 11, 2013

Argued: Oct. 5, 2012.

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Louis L. D'Arminio, Esq. (Argued), Reginald Jenkins, Esq., Price, Meese, Shulman & D'Arminio, P.C., Woodcliff Lake, NJ, for Appellant.

Christopher J. Norman, Esq. (Argued), Raymond, Coleman, Heinold & Norman, LP, Moorestown, NJ, George J. Botcheos, Esq., West Berlin, NJ, for Appellee Township of Mount Laurel.

Anthony P. Costa, Esq., Stratford, NJ, for Appellee Zoning Board of the Township of Mount Laurel.

Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.


McKEE, Chief Judge.

Interstate Outdoor Advertising, L.P. (" Interstate" ) appeals the District Court's grant of summary judgment dismissing Interstate's claim that the Township of Mount Laurel's zoning ordinance prohibiting the erection of outdoor advertising displays is unconstitutional. For the reasons that follow, we will affirm the District Court's dismissal.


Interstate filed development applications with the Mount Laurel Township Zoning Board of Adjustment (" Zoning Board" ) in which Interstate requested approval for nine outdoor advertising signs that Interstate wanted to erect in the township along U.S. Interstate-295. I-295 is a major transportation corridor with three lanes of traffic running through the township in each direction. Thereafter, the Mount Laurel Township Council adopted Ordinance 2008-12,1 the constitutionality of which is challenged in this case.

Ordinance 2008-12 sets out a list of goals and purposes, each of which relates either to aesthetics or traffic safety. Although Mount Laurel has regulated the use of signs since 1988,2 the 2008 ordinance

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incorporated two new provisions: Section 154-89,3 which allows all privately-owned signs to display a commercial or non-commercial message, and Section 154-90, 4 which provides that Ordinance 2008-12 shall be enforced in a content-neutral fashion.

When Ordinance 2008-12 was adopted, Interstate had four billboard applications pending before the Zoning Board. In September 2008, the Zoning Board began holding public hearings on Interstate's four applications. Interstate presented expert testimony on both the aesthetic suitability of the proposed billboards and their negligible impact on traffic safety. Despite that testimony, the Zoning Board denied each of Interstate's applications.

Thereafter, Interstate filed this lawsuit alleging that Ordinance 2008-12 violated the First Amendment guarantee of free speech.5 After analyzing the constitutionality of Ordinance 2008-12 under the four-part test for commercial speech set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the District Court granted Mount Laurel's motion for summary judgment. The Court held that the ordinance was a reasonable means of achieving the Township's substantial interests of traffic safety and maintaining the natural beauty of the Township, that the Township enacted Ordinance 2008-12 based upon evidence that it would advance those twin goals, and that the ordinance was reasonably related to achieving traffic safety and preserving aesthetics.

This appeal followed.



We have jurisdiction to review a final decision of a district court pursuant to 28 U.S.C. § 1291. The District Court had federal question jurisdiction pursuant to 28 U.S.C. § 1331.

We exercise plenary review over a grant of summary judgment.

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Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). In reviewing the decision of the district court, we assess the record using the same summary judgment standard used by district courts. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000). To prevail on a motion for summary judgment, the moving party must demonstrate " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " In making this determination, [we] must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Farrell, 206 F.3d at 278 (internal quotations omitted).

Because Ordinance 2008-12 concerns both commercial and noncommercial speech, we must conduct two distinct but related inquiries.


Ordinance 2008-12 clearly limits Interstate's commercial speech. Since there is no allegation that Interstate's billboards are misleading or advance illegal activity, the billboards are entitled to the protection of the First Amendment. Accordingly, the ordinance can only withstand Interstate's challenge if it serves a substantial governmental interest and is no more extensive than necessary to advance that interest. Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343.

Mount Laurel bears the burden of establishing the constitutionality of Ordinance 2008-12. Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). " This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (citations omitted).

The parties agree that Mt. Laurel has a substantial interest in both the aesthetics and safety of its highways. However, we must also consider the " fit" between the legislative ends and the means chosen to accomplish them. See Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995).

Mount Laurel presented extensive evidence before the District Court to support its contention that Ordinance 2008-12 directly advances the Township's goals of traffic safety and aesthetics. The evidence included a December 8, 2010 report from the Mount Laurel Township Traffic Engineer that reviewed 37 articles pertaining to billboards and traffic safety, and concluded that limiting the number of driver distractions would advance the goal of traffic safety. 6 The evidence also included

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expert reports and deposition testimony of the Township's planner. The planner testified that Mount Laurel's sign control ordinances had effectively preserved the " billboard free aesthetic charm and character" of the Township for 23 years.

Interstate offered its own expert testimony to rebut the Township's evidence. Interstate provided testimony from a traffic expert who explained that, according to an accident analysis of the I-295 corridor using the New Jersey Department of Transportation's crash records database, the accident rate in the area of Interstate's proposed billboards was well below that which would indicate a hazardous location.7 Interstate's traffic expert also testified that several studies indicate that there is no causal relationship between the presence of billboards and accidents.8

On appeal, Interstate questions the reliability of Mount Laurel's studies. Interstate claims, inter alia, that those studies merely establish a correlation rather than causation between billboards and traffic accidents and that the reports rely on faulty data.9 Lastly, Interstate argues that the locations where it seeks to post billboards are along the multilane, heavily trafficked, Route I-295 corridor in " heavy industrial zones" outside of any residential or scenic views, and that Mount Laurel's concern about preserving aesthetics is therefore overblown.

According to Interstate, the testimony it offered created a genuine issue of material fact that had to be resolved by a fact-finder, rather than at the summary judgment stage. Interstate relies on Viking Yacht Co. v. Composites One LLC, 622 F.Supp.2d 198 (D.N.J.2009), in stating that " [h]aving competing admissible expert testimony on a particular issue is the epitome of a disputed issue of fact." Id. at 203. Moreover, Interstate points out that Mount Laurel never challenged the admissibility of Interstate's expert testimony. Interstate therefore argues that the Court should have permitted a fact-finder to weigh each side's expert's offerings at trial rather than concluding that Mount Laurel was entitled to judgment as a matter of law.

Interstate's position ignores the context in which this issue is presented. As the Supreme Court explained in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), each method of communication has its own set of laws, and " [w]e deal here with the law of billboards." Id. at 501, 101 S.Ct. 2882. In Metromedia, the Court noted that it " has often faced the problem of applying broad principles of the First Amendment to unique forums of expression."

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Id. at 500, 101 S.Ct. 2882. The result is that " [e]ach method of communicating ideas is a law unto itself and that law must reflect the differing nature, values, abuses and dangers of each method." Id. at 501, 101 S.Ct. 2882 (internal quotations omitted). Billboards, by their very nature, are capable of communicating a vast array of messages to a very large segment of the public. " But whatever its communicative function, the billboard remains a large, immobile, and permanent structure which like other structures is subject to ... regulation." Id. at 502, 101 S.Ct. 2882 (internal quotation marks omitted) (ellipsis in original).

In Metromedia, the plaintiffs argued that the city's ordinance would eliminate outdoor advertising in the City of San Diego and " the First and Fourteenth Amendments prohibit the...

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