2 Suits Test Middle’s Ban on Billboards

COURT HOUSE – At public hearings July 14, 2022, two outdoor advertising firms presented their arguments for permission to erect large, electronic billboards in Middle Township on the Rio Grande Avenue route into the Wildwoods and on the Stone Harbor Boulevard route onto Seven Mile Island.
Both requests were denied by Middle Township’s Zoning Board of Adjustment. Both companies have now sued the township in an effort to have the decisions overturned.
Garden State Outdoor LLC filed suit in August, just one month after the Zoning Board decision. The firm is seeking to erect a double-sided, 378-feet-per-side, LED billboard at a height of 45 feet on Route 47 in Rio Grande across South Delsea Drive from Burger King. The area is part of Middle’s Town Center Zoning District.
In a 14-page complaint, Garden State Outdoor argues that it submitted its application to the Zoning Board complete with a valid state permit, which the firm asserts confirms the proposed billboard’s compliance with requirements of the Federal Highway Beautification Act and the New Jersey Roadside Control and Outdoor Advertising Act.
They further argued that “the billboard would promote commercial and public speech under and in accordance with the New Jersey and United States Constitutions.”
The litigation brought by the firm accuses Middle of maintaining a “blanket prohibition” on off-premises advertising, which the firm claims is unconstitutional. The Zoning Board is accused of maintaining “ad hoc, or subjective, and/or excessive standards.” Garden State Outdoor calls Middle’s ordinances “impermissibly vague.”
The firm seeks reversal of the decision against the billboard, all other variances that may be needed to construct it, and compensatory damages and legal fees.
The second firm involved in the challenge to Middle’s Zoning Board decisions July 14 is a west coast company, Pacific Outdoor Advertising.
Pacific Outdoor requested permission to erect a similar, large billboard at 522 Stone Harbor Boulevard, a space across the boulevard from the Kindle automobile dealerships. Following denial of the application, Pacific Outdoor filed suit in September.
The Pacific Outdoor complaint lists six counts against the Zoning Board. These include claims that the board acted in an “arbitrary, capricious and unreasonable” manner and exhibited an “abuse of discretion.”
In addition, the complaint lays out arguments like those in the Garden State Outdoor case, making the argument that Middle’s ordinances violate the state and federal constitutional right to free speech. The firm is also seeking compensatory damages.
Middle’s municipal code defines a billboard as “a sign which directs attention to a business, commodity, or entertainment conducted, sold or offered at a location other than the location in which the sign is located.”
Later in its code, the township lists prohibited signs, including signs that advertise a business or product “no longer sold on the premises where the sign is located.”
In 2016, the New Jersey Supreme Court found against a Franklin Township ordinance that banned digital billboards within the township. The court ruling found that the township had failed to ensure that its sign regulations were justified by sufficient location-specific research that supported the municipality’s assertion of government interest.
While the courts have held that billboards are open to considerable government regulation, including for the purpose of protecting aesthetic value, members of the public who spoke at the July 14 hearings before the Zoning Board questioned if an outright ban can be successfully defended.
These two cases against the Middle Township’s Zoning Board may determine whether Middle needs more nuanced regulations.  
Contact the author, Vince Conti, at vconti@cmcherald.com.