Bell v. Stafford Tp.

Citation541 A.2d 692,110 N.J. 384
PartiesWesley K. BELL, t/a Wes Outdoor Advertising Co., Plaintiff-Respondent, v. TOWNSHIP OF STAFFORD, a Municipality in the County of Ocean, State of New Jersey, Defendant-Appellant, and Robert H. Mears, Construction Official of the Township of Stafford, and the County of Ocean, Defendants.
Decision Date26 May 1988
CourtUnited States State Supreme Court (New Jersey)

Thomas E. Monahan, Toms River, for defendant-appellant (Gilmore & Monahan, attorneys; J. Mark Mutter and Charles W. Hutchinson, on the briefs).

Wesley K. Bell, pro se.

Theodore L. Abeles, Roseland, submitted a brief on behalf of amicus curiae Gannett Outdoor Co., Inc. of New Jersey (Lum, Hoens, Abeles, Conant & Danzis, attorneys).

Jeffrey M. Hall and Kenneth I. Hyman, Princeton, submitted a brief on behalf of amicus curiae, Outdoor Advertising Ass'n of New Jersey (Strauss & Hall, attorneys; Jeffrey M. Hall, of counsel).

The opinion of the Court was delivered by

HANDLER, J.

This case engenders first amendment and freedom of speech concerns arising from the efforts of a municipality to regulate through its zoning powers the use of billboards as a form of out-door advertising. The controversy arose from the Township of Stafford's ("Township" or "Stafford") enactment and enforcement of an ordinance declaring that "[b]illboards, signboards, and off-premises advertising signs and devices are prohibited within any zoning district of the Township." 1

Three separate billboards owned by Wesley K. Bell ("Bell"), trading as Wes Outdoor Advertising, that are located along Route 72 in the municipality have been affected by the ordinance, whose constitutional validity was upheld by the trial court. In an unpublished per curiam opinion, the Appellate Division reversed the trial court's decision and found that the ordinance was unconstitutional. Stafford filed a petition for certification and notice of appeal. We granted certification, 108 N.J. 191, 528 A.2d 17 (1987), 2 and now affirm the Appellate Division's decision.

I.

In its opinion, the Appellate Division provided a brief recitation of the underlying events, which suffices for our disposition of the matter. During the latter half of the 1960's Wesley K. Bell obtained title to two plots of land located along Route 72 in Stafford identified as Block 145A, Lot 26A (Lot 26A) and Block 120, Lot 8 (Lot 8). Thereafter, Bell constructed a number of billboards on these properties. During the early 1970's the DOT [i.e., Department of Transportation] sought to condemn a portion of Lot 26A in order to widen Route 72, a State highway which passes through Stafford. Bell unsuccessfully challenged that condemnation action in the state and federal courts.

On September 30, 1983 agents of the DOT entered upon Lot 26A and cut down the billboard located thereon. At the same time, the DOT mistakenly tore down the billboard located on Lot 8 even though this land had not been condemned by the State. Bell then disassembled the billboards and removed them to his warehouse for repairs. In May 1984 Bell reconstructed the billboard on the portion of Lot 26A which the State had not taken in the condemnation proceedings, despite an order by Stafford not to do so.

On May 8, 1984 Bell entered into a contract with Lewis [sic ] and Jeanne Raupp to purchase a plot of land identified as Block 158A, Lots 114 and 119 (Block 158A) which contained a billboard thereon. On May 18, 1984 Bell purchased another billboard which he intended to relocate to the property he had just purchased from the Raupps. Thereafter, he filed an application with Stafford seeking approval of the relocation.

On May 30, 1984, Stafford filed an action in the Chancery Division, claiming that Bell needed a building permit in order to maintain the billboard on Lot 26A. The judge who heard the matter held that a new building permit was required notwithstanding the fact that Bell had obtained a building permit at the time that the original billboard had been constructed on Lot 26A. During the first week of June 1984, Bell also began to reconstruct the billboard which had been improperly torn down by the DOT on Lot 8. Stafford's construction code official, Robert Mears (Mears), ordered Bell to stop work on this billboard until he obtained a building permit. Stafford then filed a second suit and the same judge again determined that a building permit was required in order to reconstruct the billboard on Lot 8.

As a result of that litigation, Bell filed applications for building permits on Lots 26A and 8. In the meantime, Stafford had amended its Ordinance 77-22, which had regulated the use of billboards in the Township, by passing Ordinance No. 84-35, which sought to prohibit all billboards for off-premises advertising within any zoning district of the Township. On July 2, 1984 Bell received written notices denying his application for building permits on Lots 26A and 8 and his application to relocate the billboard from Block 181, Lot 4 to Block 158A, Lots 114 and 119. Among other reasons, the applications purportedly were denied because billboards were prohibited under Ordinance 84-35 within any zoning district of the municipality.

On receipt of the Township notices Bell filed a complaint in lieu of prerogative writs against the Township, which in part sought a declaratory judgment that the ordinance was unconstitutional on its face. The trial court rejected this argument but the Appellate Division reversed, ruling that the ordinance was facially unconstitutional.

Stafford contends that the Appellate Division erred in declaring the ordinance unconstitutional. The Township maintains that the appellate court should have refrained from making its determination of unconstitutionality, and instead have decided this case on nonconstitutional grounds. Specifically, the Township's alleges: (1) that Bell's billboards are not entitled to protection as non-conforming uses; (2) that the Township should not have any wrong imputed to it because of the DOT's actions; and (3) that Bell's permits could properly have been denied due to failure to timely submit a site plan.

II.

We deal first with the contention that in this case a decision on constitutional grounds would be improvident. This contention, made by the Township, invokes the doctrine of "strict necessity."

Generally, courts will adjudicate the constitutionality of legislation only if a constitutional determination is absolutely necessary to resolve a controversy between parties. This doctrine of "strict necessity," articulated by the United States Supreme Court in Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), is well-recognized. Thus, in Donadio v. Cummingham, 58 N.J. 309, 325-26, 277 A.2d 375 (1971), we acknowledged that "a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of litigation." See, e.g., Ahto v. Weaver, 39 N.J. 418, 189 A.2d 27 (1963); State v. Salerno, 27 N.J. 289, 142 A.2d 636 (1958); American Bank & Trust Co. of Pennsylvania v. Lott, 193 N.J.Super. 516, 475 A.2d 73 (App.Div.1984), aff'd, 99 N.J. 32, 490 A.2d 308 (1985). 3 Stafford argues that the "strict necessity" principle, exemplified by Rescue Army and Donadio, precludes disposition of a case on constitutional grounds where there is a nonconstitutional basis available for the decision. It contends that this is such a case because the court could have upheld the Township's denial of Bell's billboard application on the basis of nonconstitutional arguments. In addition, the Township suggests that the billboard ban need not be considered to resolve the dispute between the parties. However, the Township clearly relied on the billboard-ban of its ordinance to deny Bell his building permits. Its action is squarely predicated on the validity of the ordinance. 4

Moreover, Bell has the standing to press this constitutional challenge. This is confirmed by the Declaratory Judgments Act, N.J.S.A. 2A:16-53, which expressly confers standing on a person whose legal rights have been affected by a municipal ordinance. Our courts have acknowledged that this Act should be liberally construed and administered in order to carry out its purpose. See New Jersey Banker's Ass'n v. Van Riper, 1 N.J. 193, 198, 62 A.2d 677 (1948); Rego Indus., Inc. v. American Model Metals Corp., 91 N.J.Super. 447, 454, 221 A.2d 35 (App.Div.1966). While the Act is not to be used to secure decisions that are only advisory in effect, Civil Serv. Comm'n v. Senate of State of N.J., 165 N.J.Super. 144, 397 A.2d 1098 (App.Div.), certif. denied, 81 N.J. 266, 405 A.2d 811 (1979), it does afford expeditious relief from uncertainty with respect to rights when claims are in genuine conflict. Hartford Acc. & Indem. Co. v. Selected Risks Indem. Co., 65 N.J.Super. 328, 167 A.2d 821 (App.Div.1961).

In this case it is clear that an issue involving the constitutionality of the ordinance is properly presented. The case is brought by a party with standing to raise the constitutional issue in a context warranting such a decision in order fairly to resolve the legal controversy engendered by the application of the ordinance.

III.

In dealing with the merits of the constitutional issue presented, it is instructive to consider the underlying constitutional interests that are implicated. The United State Supreme Court has recognized the importance of these interests in similar contexts involving local government attempts totally to prohibit or drastically to curtail forms of free speech and expression.

In Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), the Supreme Court struck down as unconstitutional a municipal zoning ordinance that prohibited all live entertainment, including nude dancing, in any establishment within the Borough of Mount Ephraim. There, Justice White, writing for the Court, articulated the standard of review to be...

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