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Update: Local Business Claims Sign Ordinance is Unconstitutional

The owner's attorney states the Ordinance's wording is unconstitutionally vague and overbroad.

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.

Nick Nacks August 13, 2012 at 01:47 AM
See, Butterfly's comment is what is "new" about SPF. In the past if such a mural went up "illegally" someone in town would have contacted the owner and asked her to change it or remove it (without fines). People in town or neighbors close by would have discussed this with the business or building owner. I'd like to believe I remember SPF as being an area where the building/business owner would have either taken the mural down, redone it more to everyone's liking, something along those lines - and everyone would be happy. Now there are fines to the building & business owner, attorneys involved, and people boycotting what seems to be a really cool mom & pop type business. Aren't we all griping that we don't need more empty storefronts, that we should support local business, we should have a bustling downtown? Rather than acting like friends and neighbors we're lawyering up, issuing citations and boycotting businesses. Why not communicate, i.e. talk, to the business owner and ask her to paint something a little less graffiti-ish, if that's what it would take? Can't we all just stop with the grandstanding and show a little "olde towne" courtesy?
Piotr P. August 13, 2012 at 02:52 AM
Nick Nacks is 100% right, though I'm not sure butterfly9541 wasn't satire. But if Bigg's mural goes then the Montessori one has to go too, since that one's clearly a "sign" using the school's name. Of course it's not about the law, which is always selectively enforced, from whether the cop decides to give you a ticket to whether your house is up to code or not. This is about people who live near it worrying it makes the neighborhood look more "ghetto" and/or wanting to sic the law on it because it's aesthetically unappealing to them. The "olde towne" courtesy we once had faded when over-building on the South Side changed the nature and makeup of the town. Town hall became flush with property taxes and really went mad with power, imposing fees and nuisance laws and all sorts of crazy things like permits for garage sales. (And with property taxes over 20K/year for some houses, how can we no longer afford a Junk Day?) In my experience, based on nothing more than lifelong observation, the working and middle class North Siders are less likely to appeal to legal and elected authority to get things changed so I've always just thought of this as the South side mentality. It may not be what's motivating this specific case but it's a mood that's permeated the town, where every other car is a luxury one nowadays. That said, there was a double shooting in front of the Drake House a few nights ago, so I always make sure to keep our little town's problems in the correct perspective!
Nick Nacks August 13, 2012 at 11:17 AM
Hey Piotr, I'm one of the South Siders to whom you refer, LOL! Although my roots to the southside go back over 50 years. We also noticed a change in our neighborhood over the past 20 years when new types moved in and the neighborhood became less neighborly and more keep-to-yourself. That being said, I hate to blame the southsiders for this ... it seems that a lot of people are upset with it. What EVERYONE should be upset with is LaCosta and the town leaders and how egos and big heads and strong handedness have become out of control. It's time to put an end to the nonsense going on in town hall.
Piotr P. August 13, 2012 at 02:21 PM
Don't worry, Nick Nacks, some of my best friends are South Siders! lol. What I meant was that property values have risen there so much in the past 20 years (and there's simultaneously been so much building) that it's attracted a class of folks more interested in the SP that could be rather than the one that is. Not everyone of course but I'll just say that when I talk to people around town there's often an inverse relationship between the radicalism of their plans for our downtown and their geographical proximity to it. The reason I'm against most "revitalization" attempts ties into the issue with BIGG and what you say: revitalization proposals always boil down to a 2-step process: 1. Take power from building owners & their renters and give it to town officials to impose a look, style, and "character" to everything, and then 2. Bring in the chain stores. I think chain stores equals town status to some people whereas to me they're just the Malling of America. Anybody remember how after the old School 1 fire there was interest in turning downtown in to a colonial village recreation?
cnewman August 16, 2012 at 01:07 AM
thanks adrienne - this was a good reference :) cynthia n - your neighbor :)

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