COASTAL OUTDOOR ADVERTISING v. Township of Union, Civil Action No. 07-04351(FLW).

• Citation: 676 F. Supp.2d 337
• Decision Date: 29 December 2009
• Docket Number: Civil Action No. 07-04351(FLW).
• Parties: COASTAL OUTDOOR ADVERTISING GROUP, LLC, Plaintiff, v. TOWNSHIP OF UNION, NEW JERSEY, Defendant.
• Court: U.S. District Court — District of New Jersey

676 F.Supp.2d 337

COASTAL OUTDOOR ADVERTISING GROUP, LLC, Plaintiff, v. TOWNSHIP OF UNION, NEW JERSEY, Defendant.

Civil Action No. 07-04351(FLW).

United States District Court, D. New Jersey.

December 29, 2009.

Anthony Baiamonte, III, Coastal Outdoor Advertising Group LLC, Kenilworth, NJ, E. Adam Webb, G. Franklin Lemond, Jr., Klase & Lemond, L.L.C., Atlanta, GA, for Plaintiff.

John Peter Jost, Clinton, NJ, William D. Brinton, Cristine M. Russell, Rogers Towers, P.A., Jacksonville, FL, for Defendant.

Opinion

WOLFSON, District Judge:

Presently before the Court is a Motion for Partial Summary Judgment by Plaintiff, Coastal Outdoor Advertising Group, LLC ("Coastal") on its challenges to the constitutionality and application of an ordinance precluding the placement and erection of off-site signs. After Coastal brought this suit, Defendant, Township of Union, New Jersey ("Township"), amended the ordinance. Coastal does not challenge the new ordinance, but seeks damages (under 42 U.S.C. § 1983) and equitable relief (under state law) arising from the Township's application of the former allegedly unconstitutional ordinance.

Coastal claims that the former ordinance: (1) impermissibly favors commercial over noncommercial speech; (2) is impermissibly content-based; (3) lacks appropriate procedural safeguards; (4) fails to satisfy the constitutional requirements for restrictions on commercial speech; (5) is invalid under state law; and (6) contains an unconstitutional fee structure. In its Motion for Partial Summary Judgment, Coastal seeks judgment on its claims.¹ The Township counters with its own Motion for Summary Judgment, arguing first, that Coastal lacks standing to bring its various challenges, and second, that the ordinance is constitutional.²

For the following reasons, the Court finds that Coastal lacks standing to bring its First Amendment, Equal Protection, and Procedural Due Process claims because it fails to demonstrate redressability. As to Coastal's Fee Structure claim, Coastal has failed to address the merits of that claim in its opposition brief. See Harrington v. All American Plazas, Inc., 2009 WL 2992538, *5 (D.N.J.2009) (granting summary judgment for defendant where plaintiff failed to respond in its opposition brief with an argument adequately articulating the factual and legal basis in support of its position); California Natural, Inc. v. Nestle Holdings, Inc., 631 F.Supp. 465, 470 (D.N.J.1986) ("If a party fails to respond in the required manner, the court may, if appropriate, enter summary judgment against it.").³ Accordingly, summary judgment is granted to Defendant on all counts.

I. Factual Background

As is required on a motion for summary judgment, this court will view the facts in the light most favorable to the non-moving party, relying upon only those facts that are undisputed.⁴ Coastal is in the business of posting and operating signs to be used for the dissemination of both commercial and noncommercial speech. Plaintiff's Statement of Material Facts ("Pl. SOMF") at ¶ 1.⁵ Coastal owns multiple advertising signs throughout New Jersey that display advertising for businesses, organizations and individuals. Plaintiff's Verified Complaint ("Ver. Compl.") at ¶ 10. By way of a lease, Coastal arranged with the owners of two parcels of real property in the Township to place signs on their properties, which are adjacent to Interstate 79, a multi-lane federal interstate highway that runs through the Township. The State of New Jersey issued outdoor advertising permits for each location. Id. ¶ 13.

The Township claims that, on or shortly before August 1, 2007, a representative of Coastal contacted the Township's zoning office to confirm that the Township does not allow billboards advertising goods or services other than those provided at the site of the sign, and this representative further indicated that Coastal intended to challenge any such prohibition. Statement of Material Fact in Support re Motion for Summary Judgment ("Def. SOMF") at ¶ 211-12; Plaintiff's Response to Defendant's Statement of Undisputed Material Facts ("Pl. Resp. to Def. SOMF") at ¶ 211-12 ("Admitted"). Shortly thereafter, on August 6, 2007, Coastal submitted two sign application packages to the Township. Ver. Compl. at ¶ 14. The Township denied each application on the same day, faxing a copy of the denials to Coastal's counsel. Def. SOMF at ¶ 215; Pl. Resp. to Def. SOMF at ¶ 215.

Coastal's applications revealed that its proposed signs would be 95-feet in height and would have 1000-square feet in size per sign face, each sign being double-sided. See Union Township Zoning Board Applications for Permit dated 8/6/07 ("Billboard Applications"), Plaintiff's Appendix to Motion for Temporary Restraining Order ("TRO Appx."), Exhibit B. The Billboard Applications identified each sign as an "off-site general advertising sign." Id. In the written denial statements provided to Coastal, the Township cited section "30-8.2 et seq." as the basis for the denial, noting simply that "Proposed sign not permitted in Township." See id. Former Township Code 30-8.2a provided that "only signs which promote or draw attention to a product, article of business, or service offered, sold, or rendered at or in the place or premises where such sign is located shall be permitted in the municipality." In other words, off-site signs were not permitted. Other subsections in former 30-8.2 addressed setback, height, number, size, and spacing restrictions.⁶ Other sections within the ordinance, apart from 30-8.2, contain similar restrictions.⁷ Coastal contends that the former ordinance is unconstitutional and violates New Jersey state law.

Coastal also challenges the procedural framework of the former ordinance. The Township's denial letters informed Coastal that it could appeal the initial decision to the Board of Adjustment pursuant to Section 30-11.2(e) of the ordinance. See Pl. Open. Br. at 16. Even though the Township promptly considered, and rejected, Coastal's sign applications, the ordinance does not specify a time period within which the Township must respond to a sign application. Thus, the permitting process is potentially of unlimited duration; no provision of the ordinance prevents the Township from indefinitely considering a sign application. While N.J.S.A. § 40:55D-73 requires that decisions by boards of adjustment be rendered not later than 120 days after an appeal is filed, if the Township never responds, the applicant cannot appeal.⁸ Such a framework has the effect of chilling an applicant's speech.

In connection with each claim, Coastal asserts that it is entitled to recover damages resulting from The Township's enforcement of the unconstitutional ordinance under 42 U.S.C. § 1983. Coastal contends that The Township is liable for enforcing the unconstitutional ordinance, and that Coastal is entitled to compensatory damages for the "substantial financial damage" caused by the rejection of its sign applications. See Pl. SOMF at ¶ 16. According to Coastal, damages include its inability to "disseminate commercial and noncommercial messages to the Township's residents and visitors" on its own behalf and on behalf of third-parties that would advertise through Coastal. Ver. Compl. at ¶¶ 16-17. The Township argues, in response, that Coastal suffered no damages because its leases were conditional in that, inter alia, they were contingent upon the Township approving the signs. See Defendant's Rule 56.1 Counterstatement in Opposition to Plaintiff's Statement of Material Facts in Support of Plaintiff's Motion for Partial Summary Judgment ("Def. Resp. to Pl. SOMF") at ¶ 16. Apart from compensatory damages, Coastal argues, it is at least entitled to a nominal damages award. See Pl. Open. Br. at 37-8.

The Township further argues that Coastal lacks standing to bring any of its challenges. According to The Township, Coastal cannot fulfill the Article III standing requirements of injury-in-fact and redressability. See Def. Open. Br. at 24, 30. That is, Coastal cannot demonstrate that a ruling declaring the former ordinance unconstitutional would redress any harm incurred from application of the ordinance. In addition, the Township argues that Coastal's constitutional and state law challenges fail as a matter of law.

II. Procedural History

On September 6, 2007, Coastal filed its Complaint against The Township, and on September 24, 2007, Coastal filed a motion for a temporary restraining order and/or preliminary injunction against the Township to prevent the enforcement of the ordinance. Before the disposition of the motion, the Township enacted a new ordinance that supplanted the one at issue in this case. The new ordinance, also codified at Chapter 30-8, went into effect on December 1, 2007, and maintained the same height, size, setback, and location restrictions as its predecessor. The new ordinance no longer included a general off-site ban, but added a ban on all billboards.⁹

Coastal has not challenged the new ordinance. Thus, on January 1, 2008, the Township filed a Suggestion of Mootness with respect to Coastal's request for a preliminary injunction and temporary restraining order. On February 28, 2008, this Court entered an Order dismissing as moot Coastal's request for a preliminary injunction and temporary restraining order. On May 22, 2009, Coastal filed the present Motion for Partial Summary Judgment. That same day, the Township followed suit with its own Motion for Summary Judgment on the grounds that Coastal lacked standing to pursue its claims, or alternatively, that the ordinance was constitutional. For the reasons that follow, the Township's Motion for Summary Judgment is granted.

III. Standard of Review

A. Jurisdictional Challenges

Defendant's challenge to this Court's jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) permits a party to bring a motion to dismiss for want of standing. See ...