NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2432-12T3

E&J EQUITIES, LLC, a New Jersey limited liability company, APPROVED FOR PUBLICATION

Plaintiff-Respondent, October 17, 2014

v. APPELLATE DIVISION

BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN,

Defendant-Respondent,

and

TOWNSHIP OF FRANKLIN,

Defendant-Appellant.

________________________________________________________________

Submitted March 4, 2014 – Decided October 17, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1526-10.

DeCotiis, FitzPatrick & Cole, LLP, attorneys for appellant (Louis N. Rainone, of counsel; Jason D. Attwood and Victoria A. Flynn, on the briefs).

Francis P. Linnus Law Office, attorneys for respondent E&J Equities, LLC (Mr. Linnus, of counsel; Benjamin T. Wetzel, on the brief). Respondent Board of Adjustment of the Township of Franklin has not filed a brief.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Concerned that inconsistencies in its regulation of

billboards exposed it to possible legal liability, defendant

Township of Franklin (the Township) began a two-year process to

adopt a new ordinance. During that deliberative process, the

Planning Board (the Board) considered whether to permit digital

multiple message billboards, receiving information from

plaintiff E&J Equities (E&J) and other sources. Concluding that

a determination whether to permit a digital billboard was best

made within the context of an application for a conditional

variance, the Board proposed and the Township adopted Ordinance

No. 3875-10 (the Ordinance), which prohibited such billboards.1

After E&J's application for a variance to erect an electronic

billboard was denied, it commenced this litigation, challenging

the constitutionality of the Ordinance and the denial of its

application for a variance.

1 Various terms, such as digital, LED, electronic, multi- message, and Commercial Electronic Variable Message Signs (CEVMS), are used to describe the nature of the billboards subject to the Ordinance's prohibition.

2 A-2432-12T3 The trial court affirmed the denial of the variance,

finding the Township's decision to deny E&J's application was

not arbitrary, capricious or unreasonable. The court also

rejected E&J's equal protection argument. But, relying upon

language in Bell v. Township of Stafford,

(1988),

the trial court found the Ordinance's ban violated the First

Amendment. The sole issue presented by the Township's appeal is

whether the Ordinance's ban on digital billboards passes

constitutional muster. For the reasons that follow, we conclude

that it does.

I

"[T]he right to free speech is not absolute and is subject

to reasonable limitations." Besler v. Bd. of Educ. of W.

Windsor-Plainsboro Reg'l Sch. Dist.,

(2010). In Metromedia, Inc. v. City of San Diego,

,

,

(1981), the Supreme Court

acknowledged the challenge of "applying the broad principles of

the First Amendment to unique forums of expression," stating,

"[e]ach method of communicating ideas is 'a law unto itself' and

that law must reflect the 'differing natures, values, abuses and

dangers' of each method."

,

,

-11 (quoting Kovacs v. Cooper,

,

,

(1949) (Jackson, J.,

3 A-2432-12T3 concurring)). Like the Court in Metromedia, "[w]e deal here

with the law of billboards." Id. at 501,

,

.

Signs "pose distinctive problems that are subject to

municipalities' police powers." City of Ladue v. Gilleo,

,

,

(1994).

"Unlike oral speech, signs take up space and may obstruct views,

distract motorists, displace alternative uses for land, and pose

other problems that legitimately call for regulation."

,

,

. Accordingly,

billboards are the subject of federal, state and local

regulation.

Consistent with the Supreme Court's observation regarding

the nature of signs, both Congress2 and our Legislature3 have

2 In enacting the Federal Highway Beautification Act, 23 U.S.C.A. 131, Congress declared its finding that

the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.

[

(a) (emphasis added).]

4 A-2432-12T3 identified the promotion of safety on the highways and the

preservation of natural beauty as interests to be served in

their regulation of billboards.

All roadside signs in New Jersey are subject to conditions

and restrictions established by N.J.S.A. 27:5-9. "Off-premise

multiple message signs," such as the one E&J sought to erect,

are subject to additional conditions. N.J.A.C. 16:41C-8.8(a)(1)

requires an application and a permit specific to that use when

the off-premise multiple message sign would be visible to a

highway. The regulation states that, provided the conditions

(continued) 3 The Legislature described its purpose in enacting the Roadside Sign Control and Outdoor Advertising Act (Roadside Sign Act), N.J.S.A. 27:5-5 to -28, as follows:

In order to balance the promotion of the safety, convenience and enjoyment of travel on the highways of this State with the protection of the recreational value and public investment therein, to preserve and enhance the natural scenic beauty and aesthetic features of the highways and adjacent areas while promoting development and economic vitality and facilitating the flow of speech and expression, of which providing messages of commercial, public and social value conveyed through the medium of roadside signs and outdoor advertising is an important part, roadside signs and outdoor advertising shall be regulated by this act.

[N.J.S.A. 27:5-6(a) (emphasis added).]

5 A-2432-12T3 enumerated in N.J.A.C. 16:41C-8.8(a) are met, the Department of

Transportation (NJDOT) "shall grant permission" for the use.

Because N.J.S.A. 27:5-9.1 provides that, after NJDOT issues the

permit, any billboard "to be erected on or above any State

right-of-way . . . shall be subject to local government zoning

ordinances[,]" it is evident N.J.A.C. 16:41C-8.8(a) establishes

threshold requirements that must be satisfied without limiting

the authority of local government to further regulate

billboards. We therefore turn to the Township's effort to do

so.

II

In February 2008, the Board began the process of revamping

the Township's regulation of billboards by authorizing the

Zoning Officer to prepare a draft billboard ordinance. Over the

following year, the drafting of the Ordinance was a matter of

discussion at the Board's meetings. Input was received from

both the Land Use and Open Space Committee and the Township's

Environmental Commission. Plaintiff engaged actively in the

deliberative process, appearing before the Board to discuss a

lighting study supporting its position that LED lighting was

appropriate, and even submitting a suggested ordinance for the

Board's consideration.

6 A-2432-12T3 Minutes and memoranda from the various meetings reflect the

Board's consideration of digital billboards and the impact of

the size and placement of billboards along Interstate 287 (I-

287) upon driver safety, as well as the Environmental

Commission's concerns regarding the glare from billboards onto

residential properties and that billboards not be visible from

residential properties. At the direction of the Land Use and

Open Space Committee, the draft ordinance was revised to include

a ban on variable message and electronic signage throughout the

Township. One memo noted the draft ordinance's "rather unique

requirement," reducing the maximum distance of billboards from

the highway, which was intended to reduce overall tree removal

and the likelihood that billboards would be visible from local

roadways.

In January 2009, Mark Healey, the Township's Director of

Planning, reported to the Board regarding: his survey of

existing billboards; potentially acceptable locations along

Route 27 and I-287; and potential location, bulk, and design

requirements. Healey recommended against allowing billboards on

Route 27 because most of the area under consideration there had

been developed and placement in front of existing businesses

"would significantly detract from community character." He

advised further that if the Board wanted to consider locations

7 A-2432-12T3 on Route 27, a few commercially zoned locations might be

appropriate because "they are either undeveloped or have

features (e.g., transmission tower or industrial use) that

already detract from the aesthetics of the area." As to

potential design restrictions, the memo recommended against

permitting billboards to "rotate, move, produce noise or smoke,

give the illusion of movement, display video or other changing

imagery, automatically change or be animated or blinking."

The Board submitted a draft zoning ordinance to the Mayor

and Council in April 2009. The accompanying memo reports that

the Board "spent four worksession meetings on the proposed

ordinance and did a field visit to assess potential impacts."

The Board determined that permitting billboards along I-287

would be the most appropriate means of addressing potential

First Amendment claims on the part of billboard companies. The

memo discussed the Board's reasoning:

The draft ordinance was carefully crafted to minimize impact to the character of Franklin, particularly to the residential properties on the north side of I-287. For example, the ordinance would: limit the number of potential billboards; require that billboards be a certain distance apart; would limit their height and size; and would NOT allow billboards adjacent to the residential properties along the north side of I-287 (i.e., billboards would ONLY be permitted on the industrially-zoned land on the opposite side of I-287).

8 A-2432-12T3 Specifically addressing the issue of digital billboards,

the memo stated:

It should be noted that the Board spent a good amount of time discussing whether to permit LED billboards in the ordinance. In the end, the Board decided that it would be best to not permit LED billboards in the Ordinance. This was done because the Board felt that it did not have enough information or sufficient expertise to craft ordinance language to appropriately address LED billboards. The Board, however, did not make a determination whether LED billboards would be inappropriate. If a billboard company wanted to pursue a LED billboard, the Board felt that the more proper forum for that discussion was before the Zoning Board of Adjustment where sworn testimony by expert witnesses would be provided and where specific conditions could potentially be placed on its operation.

In language similar to the declarations of policy

underlying federal and state legislation, the stated purpose of

the Ordinance is "to balance the need to control and regulate

billboards, promote and preserve the scenic beauty and character

of the Township, provide for the safety and convenience of the

public, and to recognize certain Constitutional rights relative

to outdoor advertising." The Ordinance permits a conditional

use of static billboards in an area approximately 2000 feet long

9 A-2432-12T3 fronting on I-287 in the M-2 zone, but prohibits all digital and

electronic billboards:4

No billboard or billboard display area or portion thereof shall rotate, move, produce noise or smoke, give the illusion of movement, display video or other changing imagery, automatically change, or be animated or blinking, nor shall any billboard or portion thereof have any electronic, digital, tri-vision or other animated characteristics resulting in an automatically changing depiction.

[Franklin Twp., N.J., Ordinance 3875-10 § 112-53.1(c)(3) (2010) (emphasis added).]

Both the Ordinance and N.J.A.C. 16:41C-8.7(b)(3) require a

minimum of 1000 feet between billboards. Since the M-2 zone

fronting I-287 is approximately 2000 feet long, the net result

is that the Ordinance permitted the construction of three static

billboards in that area. Because N.J.A.C. 16:41C-8.8(a)(5)

requires a minimum of 3000 feet between multiple message signs,

only one digital billboard would be permitted in the Township if

4 The Ordinance contains other restrictions relevant to aesthetics and traffic safety. The Ordinance prohibits any billboard from being "painted with, or composed of, any material of a fluorescent, phosphorescent, or holographic material," § 3.C.6, or from displaying "pornographic or sexually indecent and/or obscene pictures, depictions, or images[.]" § 3.C.7. In addition, § 3.C.8 prohibits any billboard from displaying "words or symbols that connote[] traffic control commands, including but not being limited to 'STOP' or 'DANGER' or which may be confused as a sign displayed by a public authority."

10 A-2432-12T3 the ban against electronic and digital billboards was eliminated

from the Ordinance.

III

When the Board began to consider the adoption of an

ordinance governing billboards in 2008, E&J applied to NJDOT

pursuant to N.J.S.A. 27:5-8 for a permit to erect an electronic

multimessage billboard for off-site advertising on its property,

which is located in the M-2 zone, with 389 feet fronting on the

north side of I-287. This is an industrial district, across

from a cemetery, adjacent to a large manufacturing facility with

land to the rear zoned for further large manufacturing or

warehouse uses. The proposed electronic billboard was oriented

to I-287. A residential development lies across the highway,

with the closest home approximately 500 feet away from the

proposed sign. The proposed billboard consisted of two panels

measuring 48' by 14' each, arranged in a V-shape for visibility

to both the northbound and southbound lanes of I-287. The

electronic panels would display static images in eight-second

intervals without scrolling, flashing, or animation.

After the permit was issued by NJDOT in May 2009, the

proposed electronic billboard remained subject to the Township's

zoning ordinances. N.J.S.A. 27:5-9.1. The Township had not yet

adopted the Ordinance at issue here. In September 2009, E&J

11 A-2432-12T3 applied to the Board of Adjustment for a use variance under

N.J.S.A. 40:55D-70(d)(1). Hearings on E&J's application were

held on February 4, April 1, and June 3, 2010. The Ordinance

was adopted prior to the last hearing. E&J then amended its

application to request a variance pursuant to N.J.S.A. 40:55D-

70(d)(3) (the D-3 variance) to permit construction of the

electronic billboard. The Board of Adjustment denied its

application.

E&J filed a four-count complaint in lieu of prerogative

writs, alleging the prohibition of digital billboards in the M-2

zone violated both the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution. E&J did not challenge any other restriction

contained in the Ordinance. In addition, the complaint alleged

the Board had acted arbitrarily, capriciously and unreasonably

in denying its application for a variance, and that the Township

acted ultra vires in adopting the Ordinance.

IV

At the bench trial that followed, evidence was presented

about the character of the Township. Approximately forty-seven

square miles, Franklin Township is the second largest

municipality in Somerset County. It is a highly diverse

community that includes urban, suburban, rural, and economic

12 A-2432-12T3 development areas. I-287 runs through the northwest section of

the Township, passing through the M-2 industrial zone where

large corporate structures and manufacturing facilities are

located. However, over forty percent of the Township is zoned

for very low density and over 8,000 acres are publicly or

privately preserved.

John T. Chadwick, IV, E&J's planning expert, testified,

"The town has been very aggressive in preserving farmland and

acquiring open space." However, Chadwick opined that the

prohibition of any digital billboard in the zone would not

advance the unique beauty and character of the Township because

the particular zone was an industrial district, rather than a

rural or historic neighborhood, and because the closest home is

500 feet across the highway.

Jonathan Slass, a principal of E&J, testified that the

digital billboard would serve traditional advertisers, small

businesses, political advertisers, and nonprofit organizations.

In addition, a block of time would be controlled by the Township

for public service announcements as police emergencies.

Among the other witnesses E&J presented, an employee of a

digital sign manufacturer testified about the safety of digital

billboards and the advantage of being able to instantly change

messages to serve the public interest. A licensed professional

13 A-2432-12T3 engineer testified there was "no conclusive evidence to suggest

that digital billboards relate to an increase in accidents or

have a direct correlation on [sic] driver safety." On cross-

examination, the engineer admitted the methodology of the

studies she relied upon has been subject to criticism.

Testifying as an expert in planning for the Township,

Healey stated the Ordinance was adopted to update the Township's

signage regulations and create a comprehensive regulation of

outdoor advertising while preserving the Township's community

character and aesthetics. Healey testified that the ban on

digital billboards was consistent with the intent to preserve

the Township's character for several reasons: (1) digital

billboards tend to be brighter and have an appearance of being

much more crisp in resolution; (2) the Township had a reasonable

concern about having a digital billboard of almost 700 square

feet at a gateway into the township; and (3) since the Ordinance

would permit three billboards in the M-2 zone, there could be

two static billboards in the M-2 zone in addition to a digital

billboard if the ban was invalidated.

In response to the argument that a digital billboard would

provide a means of instantly communicating emergency messages,

Healey testified that the Township had the ability to do so

without the use of digital billboards. There are two signs on

14 A-2432-12T3 the stretch of land along I-287, placed by NJDOT, that have been

used for Amber Alert and Silver Alert messages. In contrast to

the size and characteristics of the proposed digital billboard,

the signs are less than 100 feet square, with an amber color

display on a black background and do not scroll. In addition,

the Township has a "reverse 9-1-1" calling system it uses to

alert residents when there is flooding. Residents are also able

to sign up to receive "email blasts" from the Township when

necessary.

The trial judge concluded that the Township's decision to

deny E&J's application for a D-3 variance to erect the digital

billboard was not arbitrary, capricious, or unreasonable. The

trial judge also rejected E&J's equal protection argument,

finding that the Township had demonstrated a rational basis for

the distinction between digital and static billboards. Citing

Greenberg v. Kimmelman,

(1985), the judge

stated:

The Township's concern with the impact of digital billboards on community aesthetics, as well as the lack of conclusive evidence regarding the impact of the billboards on traffic safety, provides at least some rational basis for enactment of the ban on digital billboards. While plaintiff asserts that the evidence indicates no such impact is likely to occur, it cannot be denied that digital billboards, at minimum, create visual stimuli different than that of a traditional billboard. By the mere fact

15 A-2432-12T3 that the images change, there is the chance that the digital billboard could possibly impact community aesthetics or traffic safety.

Despite these findings, the trial judge invalidated § 112-

53.1(c)(3) of the Ordinance, concluding that the digital

billboard ban violated the First Amendment.

In its appeal, the Township argues that the trial court

erred in applying an intermediate scrutiny standard to the

Ordinance and that, instead, the court should have determined

whether the Township's adoption of the Ordinance was arbitrary,

capricious or unreasonable. Alternatively, the Township argues

that because the ordinance is content-neutral, it should be

reviewed pursuant to the time, place, and manner standard set

forth in Ward v. Rock Against Racism,

,

,

(1989).

Because this appeal calls for our review of the "trial

court's interpretation of the law and the legal consequences

that flow from established facts," we conduct a de novo review.

Manalapan Realty v. Twp. Comm. of Manalapan,

(1995). We agree with the trial court that a time, place, and

manner review is appropriate here. But, we part company with

the trial court in its reliance upon Bell. Although the

language used is similar to that of the test identified in Clark

v. Community for Creative Non-Violence,

,

A-2432-12T3 3065,

(1984), the trial court's application,

relying upon Bell, required the Township to meet standards not

required in the review of content-neutral time, place and manner

restrictions.

V

The Township's argument that the Ordinance enjoyed a

presumption of validity that could only be overcome by evidence

that its regulation was arbitrary, capricious, or unreasonable

lacks merit because "the regulation of billboards implicates

fundamental First Amendment rights." CBS Outdoor, Inc. v.

Borough of Lebanon Planning Bd./Bd. of Adjustment,

(App. Div. 2010). Our view is in harmony with

federal precedent.5 "Billboards are a well-established medium of

communication" that have both "communicative and

noncommunicative aspects."

-

5 Because we ordinarily interpret our State Constitution's free speech clause, N.J. Const. art. I, ¶6, to be no more restrictive than the First Amendment to the United States Constitution, "'we rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution.'" Hamilton Amusement Ctr. v. Verniero,

(1998) (quoting Karins v. City of Atlantic City,

(1998)), cert. denied,

,

,

(1999)); see also

. Two exceptions to the general rule, not applicable here, are political expression at privately-owned-and-operated shopping malls, N.J. Coal. Against War in the Middle E. v. J.M.B. Realty Corp.,

(1994), cert. denied,

,

,

(1995), and defamation, Sisler v. Gannett Co.,

(1986).

17 A-2432-12T3 02,

,

(plurality

opinion). "[T]he government has legitimate interests in

controlling the noncommunicative aspects of the medium, but the

First and Fourteenth Amendments foreclose a similar interest in

controlling the communicative aspects."

,

,

(citation omitted). "Because

regulation of the noncommunicative aspects of a medium often

impinges to some degree on the communicative aspects, it has

been necessary for the courts to reconcile the government's

regulatory interests with the individual's right to expression."

Ibid.; see also

,

,

. We conduct "a particularized inquiry

into the nature of the conflicting interests at stake here,

beginning with a precise appraisal of the character of the

ordinance as it affects communication."

,

,

.

As we have noted, the Ordinance did not ban all billboards,

only one feature of billboards that is unrelated to the content

of any message. To be precise, the practical effect of the ban

was to prohibit electronic multi-messaging on a single billboard

in the Township. In sum, it is essentially undisputed that a

"time, place or manner" analysis is appropriate.

18 A-2432-12T3 VI

Under the applicable standard, time, place or manner

restrictions are valid, provided they satisfy three criteria:

(1) they "are justified without reference to the content of the

regulated speech," (2) "they are narrowly tailored to serve a

significant governmental interest," and (3) "they leave open

ample alternative channels for communication of the

information."

,

,

;

,

,

; see also McCullen v. Coakley, ___

U.S. ___, ___,

,

(2014); Hill v. Colorado,

,

,

(2000);

; In re Atty Gen.'s "Directive on Exit Polling: Media & Non-

Partisan Pub. Interest Grps.",

(2009);

Hamilton Amusement Ctr., supra,

.

Although the trial court found the Ordinance to be a time,

place and manner restriction, it did not apply the standard

identified in Ward and Clark for the review of content-neutral

time, place and manner restrictions. Instead, the court relied

heavily upon our Supreme Court's decision in Bell, and concluded

that the Township had failed to supply "a factual basis

demonstrating that the Ordinance's ban on only

19 A-2432-12T3 digital/electronic billboards serves a legitimate government

interest and is narrowly drawn to advance its government

interests." The trial court's reliance upon Bell was misplaced

on both legal and factual grounds.

The ordinance in Bell created a township-wide ban on

billboards. In contrast, here, the Township has not banned all

billboards. In addition to those billboards erected before it

was adopted, the Ordinance permits the erection of three

billboards in the M-2 zone. As we have noted, there has been no

challenge to the Ordinance on the ground that it unreasonably

limits the number or location of billboards.

Unlike the explicit statements of reasons for the

Township's action here, borne out by a supporting history, the

challenged ordinance in Bell failed to reveal any "governmental

objectives or its factual underpinnings," and the record was

"almost completely devoid of any evidence concerning what

interests of Stafford are served by the ordinance and the extent

to which the ordinance has advanced those interests."

. Because the ordinance encroached upon a fundamental

right, the Court rejected the municipality's argument that its

ordinance was entitled to a presumption of validity, and

analyzed the constitutionality of the ordinance based upon its

total prohibition of a form of expression.

.

20 A-2432-12T3 It is also telling that Bell did not engage in an analysis

of a content-neutral time, place, and manner restriction on

expression pursuant to the standard applied in both

,

,

,

and City Council of Los Angeles v. Taxpayers for Vincent,

,

,

(1984), a standard

that has since been applied by our courts in reviewing such

regulations.6 E.g., Hamilton Amusement Ctr., supra,

. Instead, the Court applied the Central Hudson7 test

relied upon by the plurality in Metromedia which governs the

review of restrictions on commercial speech that are not

content-neutral.

. The four-

part Central Hudson test requires that (1) the commercial speech

"must concern lawful activity and not be misleading," (2) the

asserted governmental interest must be substantial, (3) the

regulation must "directly advance[] the governmental interest

asserted," and (4) the regulation must not be "more extensive

than is necessary to serve that interest." Cent. Hudson, supra,

447 U.S. at 566, 100 S. Ct. at 2351, 65 L. Ed. 2d at 351.

6 Ward was decided after Bell. 7 Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n,

,

,

(1980).

21 A-2432-12T3 However, when the government regulates "features of speech

unrelated to its content," it is afforded "somewhat wider

leeway."

___ at ___,

,

. The level of scrutiny we apply depends on

whether the restriction is a content-neutral regulation of the

time, place, or manner of the speech or whether it is a

restriction on the content of the speech itself. See

at

___,

,

.

Since Bell, our courts have recognized that the standard

governing the regulation of commercial speech8 that is not

content-neutral and the standard applicable to time, place, and

manner restrictions, are often "closely intertwined," and have

even applied both tests simultaneously. See Hamilton Amusement

Ctr., supra,

(citing City of Renton v. Playtime

Theatres, Inc.,

,

,

8 The primary use of the billboard here is for commercial speech, i.e., "expression related solely to the economic interests of the speaker and its audience." Cent. Hudson, supra,

,

,

. Such speech, "proposing a commercial transaction,"

,

,

, may be subject to stricter regulations than non-commercial speech. State v. DeAngelo,

(2009); see also

,

,

(plurality opinion concluding that ordinance met constitutional guidelines "insofar as it regulated commercial speech," but was unconstitutional because of its restrictive impact on non- commercial speech); Barry v. Arrow Pontiac, Inc.,

(1985).

22 A-2432-12T3 932,

(1986)); N.J. Dep't. of Labor &

Workforce Dev. v. Crest Ultrasonics,

(App. Div. 2014). The analyses in these cases support our

conclusion that the trial court's interpretation imposed a

burden on the Township that is not required for content-neutral

restrictions on time, place, and manner expression. We

therefore conduct a de novo review of the application of the

Ward test to the Ordinance here.

A

Because there is no serious issue that the restriction here

is content-neutral, the first prong of the Ward test is

satisfied.

,

,

. However, because that factor weighs

heavily in the analysis, further discussion is merited.

Government regulation of expressive activity is content-

neutral so long as it is "justified without reference to the

content of the regulated speech."

,

,

. The government's

purpose in adopting the regulation is "the controlling

consideration" in determining content neutrality.

,

,

. "The

principal inquiry . . . is whether the government has adopted a

regulation of speech because of disagreement with the message it

23 A-2432-12T3 conveys."

When the regulation "serves purposes unrelated

to the content of expression," it is "deemed neutral, even if it

has an incidental effect on some speakers or messages but not

others." Ibid.; see also

;

Hamilton Amusement Ctr., supra,

.

On its face, the Ordinance does not restrict any speech

based on its content. The restriction at issue applies with

equal force, regardless of the content of the speech. E&J did

not argue and the trial court did not find that the Township's

motivation in adopting the Ordinance was anything other than its

stated interests in aesthetics and traffic safety. Although the

trial court concluded that those interests were not sufficiently

advanced by the digital billboard ban, it is undisputed that the

Township's purpose, the "controlling consideration,"

,

,

, was to serve its interests in aesthetics and traffic

safety. The Ordinance plainly meets the definition of a

content-neutral regulation.

Further, the restriction relates only to the format in

which the communication is delivered – by way of a digital

billboard as opposed to a static billboard. Even if the digital

delivery system may be considered "expressive and part of the

message delivered," the regulation remains a restriction on the

24 A-2432-12T3 manner of expression, see

,

,

, and is therefore governed

by the standard applicable to restrictions on the time, place,

or manner of expression.

E&J agrees that a time, place and manner analysis applies

here. However, somewhat incongruously, it also contends that

the ban on digital billboards "constitutes a non-content neutral

restriction on plaintiff's planned and non-commercial speech,"

and "discriminate[s] between forms of non-commercial speech."

In support of the latter argument, E&J states that while certain

non-commercial messages could be adequately presented on a

static billboard, emergency public service announcements such as

Amber Alerts cannot be communicated through that medium.

E&J's effort to elevate the ban on digital billboards to a

content related restriction lacks any merit. As we have noted,

a restriction on speech that serves purposes unrelated to the

content of the speech is "deemed neutral, even if it has an

incidental effect on some speakers or messages but not others."

,

,

.

Moreover, "the First Amendment does not guarantee the right

to employ every conceivable method of communication at all times

and in all places."

,

A-2432-12T3 at 2132,

(citing Heffron v. Int'l Soc. for

Krishna Consciousness,

,

,

(1981)). In Clark, demonstrators who

wanted to call attention to the plight of the homeless

challenged a ban on sleeping in national parks.

, 104 S. Ct. at 3067,

. Rejecting their

constitutional claim, the Court stated, "That sleeping . . . may

be expressive and part of the message delivered by the

demonstration does not make the ban any less a limitation on the

manner of demonstrating, for reasonable time, place, or manner

regulations normally have the purpose and direct effect of

limiting expression but are nevertheless valid."

,

,

. In

Vincent, supra,

,

,

, the challenged ordinance also prohibited a "medium of

expression," the posting of signs on public property. In

upholding the constitutionality of the ordinance, the Supreme

Court stated, "it is the tangible medium of expressing the

message that has the adverse impact on the appearance of the

landscape. . . . [T]he substantive evil -- visual blight -- is

not merely a possible byproduct of the activity, but is created

by the medium of expression itself."

26 A-2432-12T3 Here, the Township justifies its prohibition of digital

billboards based on its interest in aesthetics and traffic

safety, "without reference to the content of the regulated

speech." See

,

,

. Even if the use of an electronic multi-

message is considered a form of expression, the incidental

effect of the Ordinance's ban on announcements to be

communicated in eight-second segments does not strip the

Ordinance of its content neutrality. We therefore turn to the

remaining criteria and their application here.

B

The second prong of the Ward test is that the regulation

must be "narrowly tailored to serve a significant governmental

interest."

,

,

. This requires us to determine first,

whether there is such a governmental interest and second,

whether the regulation is "narrowly tailored" to serve that

interest.

The burden of proving a "substantial government interest"

is not a heavy one. Hamilton Amusement Ctr., supra,

. A zoning ordinance "need not articulate its

objectives,"

at 271 (citing Zilinsky v. Zoning Bd. of

Adjustment,

(1987)), or produce "empirical

27 A-2432-12T3 data . . . accompanied by a surfeit of background information."

at 271 (quoting Fla. Bar v. Went for It, Inc.,

,

,

(1995)). To

satisfy this burden, the evidence must "provide a rational,

objective basis from which a reviewing court can ascertain the

existence of a substantial governmental interest underpinning

the legislation," Twp. of Cinnaminson v. Bertino,

(App. Div.), cert. denied,

(2009),

and will be sufficient if "whatever evidence the [legislative

body] relies upon is reasonably believed to be relevant to the

problem" addressed. Hamilton Amusement Ctr., supra,

(quoting

,

,

). Such support may come in the form of

"reference to studies pertaining to other jurisdictions,

legislative history, consensus, and even common sense." Id. at

271.

The government interests identified here were aesthetics

and traffic safety. It is universally recognized that

government has a legitimate, even substantial, interest in

preserving the aesthetics of its community and in promoting

traffic safety. See

,

,

(noting that "traffic safety

and the appearance of the city . . . are substantial

28 A-2432-12T3 governmental goals"). Further, there is little dispute that

billboards, of any type, are widely considered to have a

negative impact upon aesthetics and traffic safety. See

,

,

(stating it is not speculative to recognize that

posted signs, like billboards, can be perceived as an "esthetic

harm");

,

,

(stating "as a matter of law that

an ordinance which eliminates billboards designed to be viewed

from streets and highways reasonably relates to traffic

safety"); Susan C. Sharpe, "Between Beauty and Beer Signs": Why

Digital Billboards Violate the Letter and Spirit of the Highway

Beautification Act of 1965,

(2012).

Here, the Ordinance explicitly stated the purpose for its

regulation of billboards was "to balance the need to control and

regulate billboards, promote and preserve the scenic beauty and

character of the Township, provide for the safety and

convenience of the public, and to recognize certain

Constitutional rights relative to outdoor advertising." See

Naser Jewelers, Inc. v. City of Concord,

(1st

Cir. 2008) (finding that the city's "stated justifications

plainly constitute significant governmental interests").

29 A-2432-12T3 Turning to the evidence relied upon by the Township, we

note the record includes repeated statements from the

Environmental Commission of its concerns regarding the glare

from billboards onto residential properties and its urging that

billboards not be visible from residential properties. Healey's

recommendations to the Board regarding locations for billboards

reflected concern as to whether placement "would significantly

detract from community character," or have little effect because

of existing conditions at the site.9 Healey also testified that

specific attributes of digital billboards, such as their

increased crispness and brightness, and the possible placement

with additional static billboards, were relevant to the decision

to adopt a ban. The Township also offered excerpts from the

NJDOT, Bureau of Safety Programs, Summary of Crash Rates on

State and Interstate Highways in Route and Milepost Order for

9 The fact that E&J's billboard would be placed on a section of I-287 which is already industrialized does not detract from the Township's stated interest in preserving aesthetics. In Interstate Outdoor Advertising, L.P. v. Zoning Board of Mt. Laurel,

(3d Cir. 2013), the Court of Appeals rejected a similar argument, stating, "The industrial nature of the highway does not mitigate Mount Laurel's concerns about the aesthetics of the highway. In fact, it may well suggest an even greater need to guard against the deterioration of the Township's character and evoke a greater concern for safety."

30 A-2432-12T3 2006 through 2009;10 Jerry Wachtel, A Critical, Comprehensive

Review of Two Studies Recently Released by the Outdoor

Advertising Association of America (Final Report 2007), and

excerpts from a publication of the United States Department of

Transportation, The Effects of Commercial Electronic Variable

Message Signs (CEVMS) on Driver Attention and Distraction: An

Update, Federal Highway Administration, Publication Number FHWA-

HRT-09-018 (2009) (USDOT Report).11 The last of these studies

concluded it was important to conduct "carefully controlled and

methodologically sound" research because the available studies

were inconclusive in "demonstrating detrimental driver safety

effects due to CEVMS exposure." USDOT Report at 7.0

Conclusions.

The recognized need for further studies on the impact of

such billboards, along with the Township's stated reasons,

provides a rational, objective basis for the Township's decision

to refrain from adopting a regulation of them. In all, the

record establishes that the Township relied on evidence

"reasonably believed to be relevant to" the interest identified

10 The full reports for 2006 through 2009 are available at http://www.State.NJ.US/transportation/refdata/accident (last visited Oct. 2, 2014). 11 The report is available at http://www.fhwa.dot.gov/real_estate/oac/possible_effects/ (last visited Oct. 2, 2014).

31 A-2432-12T3 in the Ordinance's stated purpose. See Hamilton Amusement Ctr.,

supra,

. It is further evident from the

Ordinance's declaration of purpose, its drafting history and the

proofs presented at trial that the Township's stated interests

in the regulation here were authentic and not a subterfuge for

an improperly motivated restriction on expression. We are

satisfied that the Township presented adequate proof of a

substantial government interest for the regulation.

Under the Ward standard our Supreme Court applies, there

are two components to the "narrowly tailoring" requirement: (1)

the regulation must promote a substantial government interest

that would be achieved less effectively without the regulation,

and (2) the restriction must not "burden substantially more

speech than is necessary to further" the State's content-neutral

interest.

,

-

58,

.

The government's determination as to whether a content-

neutral regulation "promotes a substantial government interest"

will ordinarily be entitled to our deference. "'The validity of

[time, place, or manner] regulations does not turn on a judge's

agreement with the responsible decisionmaker concerning the most

appropriate method for promoting significant government

interests' or the degree to which those interests should be

32 A-2432-12T3 promoted."

,

, 101 L. Ed. 2d at 681

(quoting United States v. Albertini,

,

,

(1985)).

Turning to the requirement that the restriction be narrowly

drawn, the trial court found the ban on digital billboards was

more expansive than necessary to "preserv[e] aesthetics and

traffic safety," relying upon

,

for the proposition that an ordinance's restriction must be "the

least restrictive means of advancing its legitimate government

interest."

It is, however, clear that a regulation need not be "the

least restrictive means" to satisfy the requirement that a

content-neutral restriction on time, place, and manner be

"narrowly tailored." In Ward, which was decided after Bell, the

United States Supreme Court squarely addressed this question,

stating:

Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." To be sure, this standard does not mean that a time, place, or manner regulation may burden

33 A-2432-12T3 substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.

[Ward, supra,

,

,

(internal citations and quotations omitted) (emphasis added).]

See also

,

, 82

L. Ed. at 230 (rejecting the proposition that the challenged

regulation was invalid because there were "less speech-

restrictive alternatives that could have satisfied the

Government interest."). Thereafter, in Board of Trustees v.

Fox,

,

,

(1989), the Court again clarified:

We have refrained from imposing a least- restrictive-means requirement -- even where core political speech is at issue -- in assessing the validity of so-called time, place, and manner restrictions. We uphold such restrictions so long as they are "narrowly tailored" to serve a significant governmental interest, a standard that we have not interpreted to require elimination of all less restrictive alternatives. . . . In requiring that to be "narrowly tailored" to serve an important or substantial state

34 A-2432-12T3 interest, we have not insisted that there be no conceivable alternative, but only that the regulation not "burden substantially more speech than is necessary to further the government's legitimate interests." And we have been loath to second-guess the Government's judgment to that effect.

[(Internal citations omitted).]

See also Regan v. Time, Inc.,

,

,

(1984) (plurality opinion)

("The less-restrictive-alternative analysis . . . has never been

a part of the inquiry into the validity of a time, place, and

manner regulation.").

Since Bell was decided, our Supreme Court has had the

opportunity to declare whether our Constitution demands that a

challenged regulation satisfy a "least restrictive means" test

and instead reaffirmed its reliance "on federal constitutional

principles in interpreting the free speech clause of the New

Jersey Constitution." Hamilton Amusement Ctr., supra,

. Addressing the "narrowly tailored" requirement, our

Supreme Court explicitly relied upon the standard set forth in

Ward, stating, "to satisfy Central Hudson and the narrow

tailoring requirement of Clark,[12] the regulation need not be

12 Finding the restriction of signage in sexually oriented businesses in N.J.S.A. 2C:34-7c was content-neutral and that the purpose of the statute was to regulate commercial speech, Hamilton Amusement Ctr., supra,

, the Court (continued)

35 A-2432-12T3 the least restrictive means of serving the State's content-

neutral substantial interest."

(emphasis added)

(citing

,

,

). The appropriate standard requires only that

"the means chosen does not 'burden substantially more speech

than is necessary to further' the State's content-neutral

interest."

(quoting

,

,

). Here, too, the government's

decision as to how to achieve its objective is afforded some

deference.

What our decisions require is a "'fit' between the legislature's ends and the means chosen to accomplish those ends," -- a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is "in proportion to the interest served," that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation may best be employed.

[Fox, supra,

,

,

(internal citations omitted) (emphasis added).]

(continued) determined the restriction should be examined simultaneously under both the time, place and manner test articulated in Clark, and the test applicable to the regulation of commercial speech that is not content-neutral set forth in Central Hudson. Id. at 268.

36 A-2432-12T3 "'It is not [the] function [of the Court] to appraise the wisdom

of [the governmental regulation because the government] . . .

must be allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.'" Hamilton Amusement

Ctr., supra,

(quoting

,

,

).

The fact that the Ordinance bans all digital billboards

does not preclude a finding that the Ordinance is "narrowly

tailored." In Vincent, the Court concluded that an ordinance's

complete ban on signs was "narrowly tailored" because the

ordinance "did no more than eliminate the exact source of the

evil it sought to remedy," visual clutter.

, 104

S. Ct. at 2130,

. See also

,

,

("[W]e

have been loath to second-guess the Government's judgment" as to

whether the regulation does not "burden substantially more

speech than is necessary to further the government's legitimate

interests."); Interstate Outdoor, supra,

("In

the context of billboards, the Supreme Court has deferred to the

collective judgment of both legislatures and lower courts, and

highlighted the importance of considering the plainly

unattractive nature of billboards when evaluating whether a

37 A-2432-12T3 billboard ban directly advances a local government's interests

in traffic safety and aesthetics.")

The "source of the evil" the Township sought to remedy was

the heightened intrusive quality of digital billboards,

affecting the aesthetics of the town and the residential area

nearby, and a not unreasonable unease that the digital

billboards would have a negative impact upon traffic safety.

The ban on digital billboards was no broader than was necessary

to eliminate that heightened intrusive quality. Moreover, the

ban was adopted within an Ordinance that permitted billboards in

the Township under conditions not otherwise challenged here.

The record here shows that the Township clearly stated its

objectives for the Ordinance, that it considered the concerns

expressed and information received during the deliberative

process, and that other provisions in the Ordinance serve the

same objectives of traffic safety and aesthetics. These facts

all support the conclusion that the ban on digital billboards

"represents a reasoned compromise between serving the

[Township's] asserted goals and allowing some" billboards in the

Township. See Hamilton Amusement Ctr., supra,

-

79. We are therefore satisfied that the second prong was met.

38 A-2432-12T3 C

The third prong requires that the restrictions imposed by

the regulation "leave open ample alternative channels for

communication of the information."

,

,

. See also Heffron

v. Int'l Soc. for Krishna Consciousness,

,

,

(1981). "[A]

restriction on expressive activity may be invalid if the

remaining modes of communication are inadequate."

,

,

.

To assess the adequacy of remaining modes of communication, we

focus upon the advantage of the restricted means of expression

and determine whether "these same advantages cannot be obtained

through other means."13

The advantage to an electronic multi-message billboard is

that a message may be posted or changed in short order. E&J

admits that the lion's share of the commercial speech to be

projected on its proposed billboard does not require this

advantage. The only type of message identified as being

13 While there may be differences between the cost and potential audience of the alternatives and the proposed digital billboard, that does not render the alternative avenues of communication inadequate. See Interstate Outdoor, supra,

; Naser Jewelers, supra,

.

39 A-2432-12T3 adversely affected by the loss of this advantage is emergency

public service announcements. Healey testified that other means

were available to satisfy this need. Signs posted by NJDOT on

I-287 were used to provide Amber alerts and Silver alerts; the

Township has a "reverse 9-1-1" calling system and a system for

sending "email blasts" to residents when necessary.

The means identified by Healey may reasonably be viewed as

comparable to that provided by digital billboards in providing

public service information on an emergent basis. And, because

the audience who can receive communications through the proposed

digital billboard is limited to motorists on a limited stretch

of I-287, the alternative means are clearly superior in terms of

their ability to reach the residents of the Township. We

therefore conclude that "ample alternative channels for

communication of the information" are left available by the

Ordinance, satisfying the third prong of the Ward test.

Reversed.

40 A-2432-12T3