State v. Miller

CourtUnited States State Supreme Court (New Jersey)
Citation416 A.2d 821,83 N.J. 402
PartiesSTATE of New Jersey (by the Borough of Milltown), Plaintiff-Appellant, v. Donald L. MILLER, Defendant-Respondent.
Decision Date08 July 1980

Robert J. Lecky, New Brunswick, for plaintiff-appellant.

Arthur H. Miller, New Brunswick, for defendant-respondent.

The opinion of the Court was delivered by


This case questions the extent to which a municipality may constitutionally regulate signs in a residential neighborhood.

In August, 1976 defendant, Donald L. Miller, placed a four by eight foot sign on the lawn in front of his home, located in a residentially zoned district of the Borough of Milltown. The sign contained the following message:

                LAWRENCE BROOK GLEN
                FLOOD HAZARD AREA
                GOOD LUCK

Defendant was charged with violating section 20-9.1(a) of the Borough of Milltown's zoning ordinance, which permitted only the following types of signs in residential zones: 1

1. A decorative sign showing name or address of house or family, no larger than two square feet in area.

2. Signs advertising the prospective sale or rental of the premises upon which it is maintained, or signs identifying firms working at a site (one sign per firm), or indicating the future use of the site. Sale or rental signs shall be removed within one month after the new construction has been occupied. Maximum sign area per sign in square feet shall not exceed 15 per cent of the frontage of the lot along the street (which the) sign is to be located(,) measured in feet.

3. A sign erected by the borough, county, state or federal government.

4. Identification signs for and signs announcing events of churches, schools, playgrounds, parks and public utility installations. Total area of signs shall not exceed 25 feet in area on each lot.

Subsection 20-9.1(d)(4), which applies to signs in business and industrial zones as well as in residential zones, states that "(a)ll signs with an area exceeding six square feet shall require a permit." The complaint filed by the building inspector charged defendant with erecting a sign exceeding six square feet in a residential zone without first obtaining a permit. The Borough stipulated that a permit would have been denied because the sign did not fall within any of the categories set out in Section 20-9.1(a) above.

Defendant was convicted in municipal court and again after a trial de novo in the Middlesex County Court. The Appellate Division reversed, holding that the municipal ordinance violated the first amendment by absolutely prohibiting "political and public interest expression" and was unconstitutional as applied to this defendant's sign. 162 N.J.Super. 333, 339, 392 A.2d 1222 (1978). The Borough appealed as of right under R. 2:2-1(a)(1). We now affirm.


The goals of the Borough sign ordinance here are the maintenance of aesthetic charm in the residential neighborhoods and the preservation of property values. 2 The Borough pursues these goals under the zoning component of the police power to promote the general health, safety and welfare of the community.

Under early case law in this state, such goals would have been improper as beyond legitimate municipal powers. See, e. g., Passaic v. Paterson Bill Posting Co., 72 N.J.L. 285, 287, 62 A. 267 (E. & A.1905); O'Melia Outdoor Advertising Co. v. Rutherford, 128 N.J.L. 587, 591, 27 A.2d 863 (Sup.Ct.1942); Cooper Lumber Co. v. Dammers, 2 N.J.Misc. 289, 393, 125 A. 325, 327 (Sup.Ct.1924); Romar Realty Co. v. Haddonfield, 96 N.J.L. 117, 114 A.2d 248 (Sup.Ct.1921). The general rule was enunciated by the Court of Errors and Appeals in 1905: "Aesthetic considerations are a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation." Passaic v. Paterson Bill Posting Co., supra, 72 N.J.L. at 287, 62 A. at 268 (municipal ordinance regulating size and location of signs held invalid).

More recently, however, our courts have acknowledged the value and importance of aesthetic concerns in municipal land use law. See United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 5, 198 A.2d 447 (1964) (prohibition of outdoor off-site advertising); Vickers v. Township Committee of Gloucester, 37 N.J. 232, 248, 181 A.2d 129 (1962), appeal dismissed and cert. den., 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963) (prohibition of trailer camps and parks in an industrial zone); Napierkowski v. Gloucester, 29 N.J. 481, 494, 150 A.2d 481 (1959) (regulation of trailer parking); Pierro v. Baxendale, 20 N.J. 17, 30, 118 A.2d 401 (1955) (prohibition of hotels and motels in residential district); Fischer v. Bedminster Twp., 11 N.J. 194, 204, 93 A.2d 378 (1952) (minimum lot size of five acres upheld); Lionshead Lake, Inc. v. Township of Wayne, 10 N.J. 165, 89 A.2d 683 (1952), appeal dismissed, 344 U.S. 919, 73 S.Ct. 386, 97 L.Ed. 708 (1953) (minimum square feet for homes upheld); State v. J. & J. Painting, 167 N.J.Super. 384, 400 A.2d 1204 (App.Div.1979) (regulation of signs in residential zone); Township of Livingston v. Marchev, 85 N.J.Super. 428, 433, 205 A.2d 65 (App.Div.1964), certif. den., 44 N.J. 412, 209 A.2d 145 appeal dismissed for want of a substantial federal question, 382 U.S. 201, 86 S.Ct. 393, 15 L.Ed.2d 269 (1965) (regulation of trailer parking); Westfield Motor Sales Co. v. Westfield, 129 N.J.Super. 528, 535, 324 A.2d 113 (Law Div.1974) (regulation of signs in business district); Farrell v. Teaneck, 126 N.J.Super. 460, 465, 315 A.2d 424 (Law Div.1974) (regulation of signs in residential zone); Klotz v. Board of Adjustment, 90 N.J.Super. 295, 298, 217 A.2d 168 (Law Div.1966) (regulation of height of front yard fences); cf. Agins v. Tiburon, --- U.S. ----, ----, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, ---- (1980) (zoning law designed to protect residents from ill effects or urbanization legitimate exercise of police power).

Consideration of aesthetics in municipal land use and planning is no longer a matter of luxury or indulgence. To the extent that our earlier cases may hold to the contrary, they no longer represent sound zoning law. The development and preservation of natural resources and clean, salubrious neighborhoods contribute to psychological and emotional stability and well-being as well as stimulate a sense of civic pride. 3 We therefore hold that a zoning ordinance may accommodate aesthetic concerns. 4 As has been recognized by the United States Supreme Court, consideration of aesthetics may be a legitimate pursuit of the police power of a state:

The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. (Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27, 38 (1954) (citations omitted).)

Accordingly, we have recently recognized that the preservation of family-style living, the " 'blessings of quiet seclusion' " and " 'refreshment of repose and tranquility of solitude' " are legitimate zoning goals. State v. Baker, 81 N.J. 99, 106, 405 A.2d 368 (1979) (quoting Berger v. State, 71 N.J. 206, 223, 364 A.2d 993 (1976)).

Concern with aesthetics has been a subject of legislative activity as well. Among the purposes of Municipal Land Use Law, N.J.S.A. 40:55D-1 to -92, are the provision of "adequate light, air, and open space", N.J.S.A. 40:55D-2(c), and the promotion of "a desirable visual environment through creative development techniques and good civic design and arrangements", N.J.S.A. 40:55D-2(i). See Home Builders League v. Township of Berlin, 81 N.J. 127, 145, 405 A.2d 381 (1979). The conservation of property values is subsumed within the purposes of the Law, N.J.S.A. 40:55D-2(a), (e) and (i). Home Builders League v. Township of Berlin, supra, 81 N.J. at 145, 405 A.2d 381. Indeed, at least one state court has noted that considerations of aesthetics and economics are intimately related in this context, Metromedia, Inc. v. San Diego, 592 P.2d 728, 735, 154 Cal.Rptr., 212, 219 (1979), and that "(t)o hold that a city cannot prohibit off-site commercial billboards for the purpose of protecting and preserving the beauty of the environment is to succumb to a bleak materialism." Id. at 748, 592 P.2d at 748, 154 Cal.Rptr. at 232. The California court went on to quote Ogden Nash:

I think that I shall never see

A billboard lovely as a tree.

Indeed, unless the billboards fall,

I'll never see a tree at all. (Id.)

However, the injection of aesthetic considerations and values into the zoning law process is not without problems. See generally Williams, "Subjectivity, Expression, and Privacy: Problems of Aesthetic Regulation," 62 Minn.L.Rev. 1 (1977). Nor is the power to zone based on aesthetics a limitless one. Cf. Home Builders League v. Berlin Twp., supra, (minimum floor area requirements unrelated to legitimate zoning purposes); State v. Baker, supra (zoning regulation limiting residency based on number of unrelated persons in single housekeeping unit unconstitutional). The case before us now is a fine illustration of the problems in and the limits to aesthetic zoning, particularly when it conflicts with beauty of a different sort free speech.


The only signs allowed in the residential zones here are those expressly set forth in Section 20-9.1(a) of the Borough's ordinance, i. e., (1) decorative name and address plates; (2) "for sale" or "for rent" signs, signs indicating future use, and signs identifying firms doing work on the premises; (3) signs maintained by the local, state or federal government; and (4) identification...

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