By Louis C. Hochman | NJ Advance Media for NJ.com
on October 20, 2014 at 1:45 PM, updated October 20, 2014 at 2:41 PM
FRANKLIN TOWNSHIP – For what may be the first time in the country, an appeals court has ruled a municipality can ban electronic billboards within its borders.
Judges Marianne Espinosa delivered Friday the unanimous decision by the Appellate Division of state superior court, ruling that Franklin Township’s ban on electronic or animated billboards did not violate the First Amendment.
“I know that when we looked for reported decisions (upholding such bans), we had not found any,” Township Attorney Louis Rainone said.
Some similar recent legal battles involved outright bans on billboards – not only the electronic kind, he said. That distinction proved key to the appeals courts’ decision, which sets a precedent to which other towns can look.
In the 40-page opinion – overruling an earlier trial court decision determining the billboards constituted protected speech – Espinosa noted Franklin allows non-electronic billboards. Franklin’s ban on the electronic kind was also content-neutral, Espinosa wrote, putting the restriction into the same category as others on time, place or manner of signs.
Franklin P. Linnus – the attorney for E&J Equities, a subsidiary of Rotor Clip that had applied to post two electronic billboards in the township – said his client was still deciding whether to appeal the decision to the state Supreme Court.
“We were a little bit surprised that the appellate court decision chose to overturn the trial court’s decision, which was thought was well-reasoned,” he said.
In 2008, Franklin began working to draft a new billboard ordinance, concerned about potential inconsistencies in its existing laws. Ultimately, its planning board – with input from parties including E&J – recommended on the electronic billboard ban, saying exceptions should be considered case-by-case, as variance applications.
E&J applied for two variances, and was denied. The trial court ruled that the denial was handled properly, but the ban itself was a Constitutional violation.
Rainone said Franklin’s officials “felt very strongly about it.”
“Franklin has done a lot ot preserve what rural areas it has, and its historic character,” he said. “The township really believed this was an affront to its character.”
The township had also argued that electronic billboards can distract drivers and pose a potential safety hazard. It rebutted arguments that the billboards could be used for emergency communications, saying the township has other means to deliver such messages.
“This billboard, by Exit 10 on Route 287, there’s literally an accident that closes that part of the road once a week,” Rainone said.