United Advertising Corp. v. Borough of Metuchen

• Decision Date: 30 June 1961
• Docket Number: No. A--139,A--139
• Citation: United Advertising Corp. v. Borough of Metuchen, 172 A.2d 429, 35 N.J. 193 (N.J. 1961)
• Parties: UNITED ADVERTISING CORPORATION, Plaintiff-Appellant, v. BOROUGH OF METUCHEN and Irving T. Woerner, Building and Zoning Inspector, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 193

35 N.J. 193

172 A.2d 429

UNITED ADVERTISING CORPORATION, Plaintiff-Appellant, v.BOROUGH OF METUCHEN and Irving T. Woerner, Building and Zoning Inspector, Defendants-Respondents.

No. A--139.

Supreme Court of New Jersey.

Argued May 23, 1961.

Decided June 30, 1961.

Martin J. Loftus, Newark, for plaintiff-appellant.

Sam Weiss, Newark, for defendants-respondents(Leon Semer, Metuchen, attorney; Sam Weiss, Newark, on the brief).

PER CURIAM.

Plaintiff is engaged in the business of erecting, maintaining and leasing outdoor advertising signs.On or about January 25, 1960, it applied to the building inspector of Metuchen for permits to erect two billboards.Both of these were to be located on lands owned by the Pennsylvania Railroad and leased to plaintiff.The site of one of the signs was within the B-1 (business) district, and of the second, within the M-1 (manufacturing) district, as established by the Metuchen zoning ordinance.The applications were denied for the reason that said ordinance prohibited the erection of any signs in the entire borough except to advertise businesses conducted, services rendered or products offered for sale on the premises upon which said signs were intended to be erected.Plaintiff filed an action in lieu of prerogative writs seeking to have these sections of the zoning ordinance so restricting the erection of billboards declared invalid and unconstitutional and to require the issuance of the permits to it.Defendants filed an answer admitting all of the allegations of the complaint except those contained in paragraphs 7 and 8, which read:

'7.The refusal to issue the permit was arbitrary, unreasonable and discriminatory.

'8.Article VII, Section 1(g) and those phrases of Article IX, Section 1, which prohibit billboards in those districts except to advertise the business conducted on the premises, services rendered on the premises, and/or products offered for sale on the premises are invalid and unconstitutional; violate the equal protection clause of the Federal Constitution; constitute an unreasonable, arbitrary and discriminatory exercise of the police power; bear no reasonable relation to the police power under the Municipal Home Rule Act; are not authorized by the police power or any valid law of the State of New Jersey.'

Defendants thereafter moved for a summary judgment without affidavits.Plaintiff filed an affidavit setting forth facts allegedly supporting its contention that the ordinance was arbitrary and unreasonable generally in the two zoning districts involved and specifically insofar as it prevented the erection of signs at the locations intended.Plaintiff's position as disclosed by the pleadings and amplified by said affidavit is that the subject ordinance 'as applied to the locations involved and under the facts and circumstances is unreasonable and that such an ordinance as applied to the districts involved is not a reasonable exercise of the police power in the interests of the health, safety, morals and welfare of the community of Metuchen.'The trial court relying principally upon United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362(1952) granted defendants' motion.Plaintiff appealed to the Appellate Division and this court certified on its own motion prior to hearing there.

R.R. 4:58--3, concerning summary judgments, reads:

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