E. BERGEN CTY. BD. OF REALTORS v. BOR. OF FORT LEE, Civ. A. No. 87-17.

• Decision Date: 22 June 1989
• Docket Number: Civ. A. No. 87-17.
• Parties: The EASTERN BERGEN COUNTY BOARD OF REALTORS, INC., et al., Plaintiffs, v. BOROUGH OF FORT LEE, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

720 F. Supp. 51

The EASTERN BERGEN COUNTY BOARD OF REALTORS, INC., et al., Plaintiffs, v. BOROUGH OF FORT LEE, et al., Defendants.

Civ. A. No. 87-17.

United States District Court, D. New Jersey.

June 22, 1989.

Paul W. Ross, Hackensack, N.J., for plaintiffs.

Kenneth W. Herbert, Palisades Park, N.J., for defendants.

OPINION

WOLIN, District Judge.

In this action for declaratory relief, plaintiffs move for summary judgment declaring Sections 20-2.3:51(o) and 20-2.3:52(a) and Ordinance No. 87-4, supplementing Chapter 20-2.3:54, of the Fort Lee Zoning Ordinance unconstitutional under the First, Fifth, Ninth and Fourteenth Amendments of the United States Constitution and for a preliminary and permanent injunction against the enforcement of the Zoning Ordinance. The Court finds that Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance, which effectively prohibited the use of all advertising signs pertaining to the sale or rental of any property in the Borough, violated the First Amendment to the United States Constitution when applied to real estate advertising signs and that all outstanding complaints issued by the defendants charging the plaintiffs with violations of this Section are unenforceable. However, the Court finds the newly enacted Ordinance No. 87-4 constitutional and enforceable.

I. BACKGROUND

Defendant, the Borough of Fort Lee, New Jersey, enacted the Zoning Ordinance of 1981, as amended through November 12, 1985. Included in the Zoning Ordinance are Section 20-2.3:51(0),¹ which defines a sandwich sign, and Section 20-2.3:52(a),² which prohibits certain signs within the Borough.

On or about August 18, 1986, defendant John E. Collazuol, construction official and zoning officer of Fort Lee, sent written notice to plaintiff Terrace Picone Lee, Realtors ("Terrace Picone Lee") directing plaintiff to remove its "For Sale" sign located on property in the Borough within five days. Plaintiff failed to remove the sign and subsequently, on October 16, 1986, was served with a summons and complaint signed by defendant Kathleen Patrick, the Deputy Court Clerk of the Borough of Fort Lee, charging plaintiff with a violation of the Fort Lee Zoning Ordinance, Sections 20-2.3:51(o) and 20-2.3:52(a).

The following day, plaintiff Terrace Picone Lee was served with another summons and complaint charging a violation of the same sections of the Fort Lee Zoning Ordinance at another location.

On or about October 23, 1986, plaintiff Century 21-Turi Realty, Inc. ("Turi Realty") also received a summons and complaint charging violation of the same sections of the Fort Lee Zoning Ordinance for failure to remove a free-standing advertising sign located on property within the Borough.

Counsel for plaintiffs Terrace Picone Lee, Turi Realty and The Eastern Bergen County Board of Realtors, Inc., a realtor association to which Terrace Picone Lee and Turi Realty belong, requested that the defendants dismiss these complaints, but the Borough of Fort Lee refused.³

Plaintiffs then filed a complaint in this Court on January 5, 1987, challenging the constitutionality of Sections 20-2.3:51(o) and 20-2.3:52(a) of the Fort Lee Zoning Ordinance, seeking a declaratory judgment proclaiming the Sections unconstitutional and a permanent injunction against the enforcement of the Ordinance. Subsequent to the filing of the complaint, defendant Borough of Fort Lee amended the Zoning Ordinance by passing Ordinance No. 87-4 supplementing Chapter 20-2.3:54 of the Zoning Ordinance.⁴

On January 31, 1989, plaintiffs filed a supplemental pleading as an amendment to the complaint alleging that Ordinance No. 87-4, regulating the size, height and location of real estate "For Sale" and "For Rent" signs, suffers from the same Constitutional defects as Sections 20-2.3:51(o) and 20-2.3:52(a) of the Zoning Ordinance and therefore is unconstitutional and invalid. Therefore, plaintiffs also seek judgment declaring Ordinance No. 87-4 of the Fort Lee Zoning Ordinance unconstitutional and seek a preliminary and permanent injunction against its enforceability.

II. DISCUSSION

A. The Constitutionality of Sections 20-2.3:51(o) and 20-2.3:52(a) of the Fort Lee Zoning Ordinance

Although Sections 20-2.3:51(o) and 20-2.3:52(a) of the Fort Lee Zoning Ordinance do

not apply to "For Sale" or "For Rent" signs by virtue of the new Ordinance 87-4, the issue of the sections' constitutionality remains important because complaints issue by defendants charging plaintiffs with violations of these sections remain outstanding. The constitutionality of the amendment to the Zoning Ordinance allowing "For Sale" and "For Rent" signs in residential districts will be addressed in the second part of this discussion.

Determination of the constitutionality of Section 20-2.3:52(a)⁵ as it applies to "For Sale" signs requires application of relatively settled constitutional principles. Plaintiffs argue that this section violates the First Amendment of the United States Constitution, denies due process and equal protection, and violates the right to freely acquire, own and alienate property by banning business and advertising signs in the residential zones of the Borough of Fort Lee. Defendants contend that this claim is moot because of Ordinance No. 87-4, an amendment to the Zoning Ordinance passed in 1987, which permits "For Sale" and "For Rent" signs with certain size and location restrictions.

Although plaintiffs present numerous claims, the constitutionality of Section 20-2.3:52(a) of the Zoning Ordinance can be properly decided by consideration of the First Amendment claim alone.

The Supreme Court has established that certain commercial speech falls within the protection of the First Amendment. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Although commercial speech is not left unprotected by the First Amendment, some regulation is permissible. 425 U.S. at 771, 96 S.Ct. at 1830. In Virginia Pharmacy Bd., the Supreme Court recognized that it had often approved time, place and manner restrictions and set forth three requirements a valid time, manner and place restriction must satisfy:

that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.

Id.; cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (holding that a regulation preventing demonstrators from sleeping in non-designated campgrounds was a valid time, place or manner restriction because it was neutral with regard to the information presented, it left open ample alternative methods of communicating the intended message, and it was narrowly focused on the government's substantial interest in maintaining parks in an attractive condition).

The Supreme Court in Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), held that an ordinance prohibiting the posting of "For Sale" signs violated the First Amendment.⁶ The court concluded that the ordinance failed to meet the criteria of a valid time, place and manner restriction as set forth in Virginia Pharmacy Bd. Linmark, 431 U.S. at 93-97, 97 S.Ct. at 1618-1620.

First, the Court found that the ordinance did not leave open ample alternative channels for communication. The Court reasoned that the options of newspaper advertising and listing with real estate agents, though available to the plaintiffs, were more costly and less effective than the use of "For Sale" signs. The court, therefore, concluded that these alternatives were unsatisfactory. Linmark, 431 U.S. at 93, 97 S.Ct. at 1618.

Second, the Linmark Court found that the ordinance was not concerned with the time, manner or place of speech, but with its content. Because the ordinance did not prohibit all lawn signs or only lawn signs of a specific size or shape, the Court concluded that the ban on real estate advertising signs was content based. Linmark, 431 U.S. at 93-94, 97 S.Ct. at 1618-19.

Finally, the Court determined that the ordinance did not promote an important governmental objective. The Court reasoned that the ban on "For Sale" signs was not necessary to achieve the Township's asserted goal of promoting integrated housing. Thus, the court concluded that because the ordinance restricted the free flow of vital commercial information without serving a significant governmental interest, the ordinance was unconstitutional. Linmark, 431 U.S. at 96-97, 97 S.Ct. at 1620-21.

In Bloomfield Bd. of Realtors v. Township of Bloomfield, No. 86-1515 (D.N.J. July 28, 1986), this Court, per Judge Ackerman, struck down an ordinance prohibiting real estate advertising signs in residential zones as a violation of the First Amendment. Applying the reasoning employed by the Supreme Court in Linmark, the Court determined that the Bloomfield ordinance failed to meet the three requirements set forth in Virginia Pharmacy Bd. and, therefore, was unconstitutional. Bloomfield Bd. of Realtors, slip op. at 5.

Section 20-2.3:52(a) of the Fort Lee Zoning Ordinance is unconstitutional as applied to real estate advertising signs for similar reasons. This section prohibits only certain types of signs in the Borough. Institutional signs, occupancy signs, professional signs and vacancy signs are not banned by the ordinance. Thus, this section is content-based and fails to meet the first requirement of Virginia Pharmacy Bd.

In addition, although methods of advertisement other than the use of "For Sale" signs are available to the plaintiffs, the cost and effectiveness of these methods do not render them acceptable or practical alternatives. Bloomfield Bd. of Realtors, slip op. at 5.

Finally, the defendants have not offered any governmental interests that are served by the enforcement of Section 20-2.3:52(a)....