And as luck would have it, the case reports from last week were dominated by New Jersey decisions, so I offer this special, all New Jersey edition of my weekly posting.
From the state’s highest court, we have a decision last Thursday dealing with rat-shaped balloons and Free Speech. The short version is that if you want to display a rat-shaped balloon in Jersey, you’ve got the judiciary on your side. State v. DeAngelo. Click here for the decision. Law.com reported on the decision this morning.
And click here for another, even more attractive view.
A sign in Lawrence is: “[a]ny object, device, display, mural or structure, or a part thereof, situated outdoors or indoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event or location by any means, including words, letters, figures, design symbols, fixtures, colors illumination or projected images. This definition shall specifically include any building or part of a building, including walls and facades used for such purposes and shall further include banners, pennants, flags and similar attention attracting devices.”
The ordinance prohibits: “Banners, pennants, streamers, . . . portable signs; balloon signs or other inflated signs (excepting grand opening signs); . . . displayed for the purpose of attracting the attention of pedestrians and motorists; unless otherwise excepted.”
Whenever you see “excepted” in a sign ordinance, the content-based regulation alarm should go off.
And look at these exceptions for temporary signs that require no permit:
“1. Contracting signs. Temporary signs of contractors, [or] painters . . . on the lot on which the contracting work is being performed shall be permitted during the period of work.
2. Grand opening and business relocation signs . . . not to exceed 30 days . . . .
3. Political signs . . . may be erected for a period of 60 days. . . . When no election . . . is within 60 days, only one political sign at any one time shall be permitted. . . . Political signs in [non-residential] zones shall not exceed 32 square feet in area nor 6 feet in height.
4. Project development. One sign announcing the name of the project developer . . . shall not exceed 32 square feet in area.
5. Public functions. Signs advertising public functions; providing public service or information; or fund raising events . . . shall be permitted for a period of 30 days . . . and shall not exceed 32 square feet nor 8 feet in height.
6. Real estate . . . signs announcing the sale, rental or lease of the premises on which the sign is located . . . shall be in accordance with the following schedule: Residential zones: 4 square feet; Commercial zones: 16 square feet; and Industrial zones: 40 square feet.
7. Special events. Special event signs in conjunction with a temporary use allowed pursuant to 430.L as permitted by the Township Council.
8. Window signs.
9. Yard and garage sale signs.”
The court found that the ordinance was content-based regulation of noncommercial speech and held: “There is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as an advertisement or commercial logo used in a seven-day grand opening promotion. Nor is there any evidence to suggest that the ordinance ‘is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’ [citation omitted].” The court also found it was overly broad.
Professor Daniel R. Mandelker, when I asked him about the decision, said: “It is very important not to carve out exceptions for certain signs or uses and to make all requirements apply across the board to all uses.”
The second New Jersey case is Randolph v. City of Brigantine Planning Board, 2009 N.J. Lexis 25, an Appellate Division decision of last Friday. Click here for a copy. Let’s see, a member of the planning board has an “intimate personal involvement” with the principal of an engineering firm with whom she has been living for 10 years (who happens to be the City Zoning Officer). They own a home together (I’m going to bet it’s not an investment property). The engineering firm employs the board’s consulting engineer who reviews applications and gives recommendations.
Need I say more? How do you call it? Right, conflict of interest or appearance of impropriety under New Jersey statutory and common law, because the board member might be “tempted to support and approve” the consulting engineer’s opinion to encourage his reappointment to the position.
The final case in this New Jersey hat trick is Toll Brothers v. Township of Reading, decided by the U.S. Court of Appeals last Wednesday. 2009 U.S. App. LEXIS 2121. Click here for a copy. Toll Brothers was an optionee and surprisingly in New Jersey there was no binding authority on whether an optionee had standing to sue to set aside a downzoning enacted after an application was made. Toll claimed equal protection, due process, takings, Fair Housing Act, RICO and other violations. The court, in an enlightening analysis of the three elements of Article III standing, held Toll Brothers did have standing.