The debate over the continues, and the attorney representing the property and business owners is now seeking a declaratory judgment.
Theodore E. Schiller, Esq. of Schiller & Pittenger, P.C. claims the Zoning Ordinance referenced in the Municipal Court summons his clients received in June is unconstitutional in violation of the First and Fourteenth Amendments, due to it being vague and overbroad.
Subsequent to the mural’s installation, the property owner, Seymour Stein, was notified by Township Co-Manager, Construction Official, and Zoning Officer Robert LaCosta that the painting constituted a sign and was therefore subject to the provisions of Section 23-7.2 of the Township Zoning Code.
The ordinance defines a sign as any device, structure, or object, either constructed, applied, or painted, for visual communications that is used for the purpose of bringing the subject thereof to the attention of others.
Stein entered a plea of “not guilty” at Municipal Court on August 1, and the hearing was subsequently adjourned. A second hearing date has been scheduled for August 21.
Additionally, an appearance at the Township Construction Board of Appeals has been made on Stein’s behalf contesting its jurisdiction with regard to the construction code violation he received. Theodore Schiller believes this case will be dismissed since, he said, the painting does not fall within a construction code issue.
Theodore Schiller's firm has since drafted a legal brief that he intends to submit to the Municipal Court during the next hearing. As a lessee of Stein’s property, Lisa Schiller is the plaintiff, since her lease agreement obligates her to comply with all laws, ordinances, rules, and regulations of Scotch Plains and other legal entities.
Theodore Schiller said if he does not succeed in Municipal Court, he will submit his brief to New Jersey Superior Court.
According to the draft legal brief, it has been held in the State Superior Court that any person of ordinary intelligence must be given by the law a reasonable opportunity to know what is prohibited so that he may act accordingly.
One aspect of the ordinance the brief calls into question is a statement about the purpose of the ordinance:
It is the intent of this section to control the size, placement and location of signs located throughout the Township of Scotch Plains to promote the aesthetic and visual appearance of the community, to further the small-town character of the Township, to enhance economic viability by providing businesses with effective and efficient opportunities for identification, and to improve and protect pedestrian and motorist safety.
The brief questions the ability for zoning officials to judge the “aesthetic and visual appearance of the community” or the “small town character of the Township,” since there is no definite outline as to how officials would do this.
As such, Theodore Schiller submits the ordinance is unconstitutional and unenforceable due to its vague nature. Additionally, the brief contests the ordinance as overbroad.
The brief sites past cases where courts found that ordinances which reach too far, stifling the exercise of constitutional rights when more narrowly tailored ordinances would accomplish the same purpose, are considered unconstitutionally overbroad.
According to another New Jersey Superior Court case, the overbreadth doctrine applies when a law “does not aim specifically at evils within the allowable area of [government] control but...sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of protected First Amendment rights.”
“You saw the definition of the sign–anything that draws attention to itself?” Theodore Schiller posited. “Pretty interesting, huh? How about how you dress this morning? Are you a sign?” he continued.
The brief states that free speech applies to all areas of expressive conduct, including graffiti.
It also reads that enforcing the ordinance would stifle the potential for the use of the wall facade to promote the aesthetic and visual appearance of the community.
According to the brief, the application of the present use of the word “sign” would operate as a ban to such activity which could otherwise benefit the Township going forward.
The violations, if pursued, could result in a daily fine of $200 with respect to the zoning violation and $2,000 a week with respect to the alleged Construction Code violation, the brief reads.
“Our position is that the Ordinance under which the charges have been brought are either inapplicable, or are overbroad and vague and are therefore unconstitutional and unenforceable,” Theodore Schiller wrote in an email.