                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2432-12T3

E&J EQUITIES, LLC,
a New Jersey limited
liability company,                  APPROVED FOR PUBLICATION

      Plaintiff-Respondent,             October 17, 2014

v.                                     APPELLATE DIVISION


BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF FRANKLIN,

      Defendant-Respondent,

and

TOWNSHIP OF FRANKLIN,

      Defendant-Appellant.

________________________________________________________________

          Submitted March 4, 2014 – Decided October 17, 2014

          Before Judges Fisher, Espinosa and Koblitz.

          On appeal from the Superior Court of New
          Jersey,   Law  Division, Somerset County,
          Docket No. L-1526-10.

          DeCotiis, FitzPatrick & Cole, LLP, attorneys
          for appellant (Louis N. Rainone, of counsel;
          Jason D. Attwood and Victoria A. Flynn, on
          the briefs).

          Francis P. Linnus Law Office, attorneys for
          respondent E&J Equities, LLC (Mr. Linnus, of
          counsel; Benjamin T. Wetzel, on the brief).
           Respondent   Board  of   Adjustment  of   the
           Township of Franklin has not filed a brief.


    The opinion of the court was delivered by

ESPINOSA, J.A.D.

    Concerned      that     inconsistencies     in     its   regulation     of

billboards   exposed   it    to    possible   legal    liability,   defendant

Township of Franklin (the Township) began a two-year process to

adopt a new ordinance.            During that deliberative process, the

Planning Board (the Board) considered whether to permit digital

multiple     message      billboards,      receiving     information      from

plaintiff E&J Equities (E&J) and other sources.              Concluding that

a determination whether to permit a digital billboard was best

made within the context of an application for a conditional

variance, the Board proposed and the Township adopted Ordinance

No. 3875-10 (the Ordinance), which prohibited such billboards.1

After E&J's application for a variance to erect an electronic

billboard was denied, it commenced this litigation, challenging

the constitutionality of the Ordinance and the denial of its

application for a variance.




1
    Various terms, such as digital, LED, electronic, multi-
message, and Commercial Electronic Variable Message Signs
(CEVMS), are used to describe the nature of the billboards
subject to the Ordinance's prohibition.



                                       2                             A-2432-12T3
       The   trial    court   affirmed        the    denial       of    the     variance,

finding the Township's decision to deny E&J's application was

not    arbitrary,     capricious    or    unreasonable.                The    court      also

rejected E&J's equal protection argument.                     But, relying upon

language in Bell v. Township of Stafford, 110 N.J. 384 (1988),

the trial court found the Ordinance's ban violated the First

Amendment.     The sole issue presented by the Township's appeal is

whether      the   Ordinance's     ban        on    digital   billboards              passes

constitutional muster.        For the reasons that follow, we conclude

that it does.

                                          I

       "[T]he right to free speech is not absolute and is subject

to    reasonable     limitations."        Besler       v.   Bd.    of        Educ.     of   W.

Windsor-Plainsboro       Reg'l     Sch.       Dist.,    201   N.J.           544,     570-71

(2010).      In Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981), the Supreme Court

acknowledged the challenge of "applying the broad principles of

the First Amendment to unique forums of expression," stating,

"[e]ach method of communicating ideas is 'a law unto itself' and

that law must reflect the 'differing natures, values, abuses and

dangers' of each method."          Id. at 500-01, 101 S. Ct. at 2889, 69

L. Ed. 2d at 810-11 (quoting Kovacs v. Cooper, 336 U.S. 77, 97,

69 S. Ct. 448, 459, 93 L. Ed. 2d 513, 528 (1949) (Jackson, J.,




                                          3                                          A-2432-12T3
concurring)).       Like the Court in Metromedia, "[w]e deal here

with the law of billboards."          Id. at 501, 101 S. Ct. at 2889, 69

L. Ed. 2d at 811.

    Signs     "pose    distinctive     problems     that    are    subject       to

municipalities' police powers."              City of Ladue v. Gilleo, 512

U.S. 43, 48, 114 S. Ct. 2038, 2041, 129 L. Ed. 2d 36, 42 (1994).

"Unlike oral speech, signs take up space and may obstruct views,

distract motorists, displace alternative uses for land, and pose

other problems that legitimately call for regulation."                     Id. at

48, 114 S. Ct. at 2041, 129 L. Ed. 2d at 42-43.                    Accordingly,

billboards    are     the   subject     of    federal,     state    and      local

regulation.

    Consistent with the Supreme Court's observation regarding

the nature of signs, both Congress2 and our Legislature3 have




2
    In enacting the Federal Highway Beautification                     Act,      23
U.S.C.A. 131, Congress declared its finding that

         the erection and maintenance of outdoor
         advertising signs, displays, and devices in
         areas adjacent to the Interstate System and
         the primary system should be controlled in
         order to protect the public investment in
         such highways, to promote the safety and
         recreational value of public travel, and to
         preserve natural beauty.

         [23 U.S.C.A. § 131(a) (emphasis added).]




                                       4                                  A-2432-12T3
identified   the   promotion   of   safety   on   the   highways   and   the

preservation of natural beauty as interests to be served in

their regulation of billboards.

     All roadside signs in New Jersey are subject to conditions

and restrictions established by N.J.S.A. 27:5-9.             "Off-premise

multiple message signs," such as the one E&J sought to erect,

are subject to additional conditions.        N.J.A.C. 16:41C-8.8(a)(1)

requires an application and a permit specific to that use when

the off-premise multiple message sign would be visible to a

highway.     The regulation states that, provided the conditions



(continued)
3
   The Legislature described its purpose in enacting the Roadside
Sign Control and Outdoor Advertising Act (Roadside Sign Act),
N.J.S.A. 27:5-5 to -28, as follows:

           In order to balance the promotion of the
           safety, convenience and enjoyment of travel
           on the highways of this State with the
           protection of the recreational value and
           public investment therein, to preserve and
           enhance   the  natural   scenic  beauty   and
           aesthetic features of the highways and
           adjacent areas while promoting development
           and economic vitality and facilitating the
           flow of speech and expression, of which
           providing messages of commercial, public and
           social value conveyed through the medium of
           roadside signs and outdoor advertising is an
           important part, roadside signs and outdoor
           advertising shall be regulated by this act.

           [N.J.S.A. 27:5-6(a) (emphasis added).]




                                    5                              A-2432-12T3
enumerated in N.J.A.C. 16:41C-8.8(a) are met, the Department of

Transportation     (NJDOT)   "shall     grant   permission"       for   the     use.

Because N.J.S.A. 27:5-9.1 provides that, after NJDOT issues the

permit,   any   billboard    "to   be   erected    on    or    above    any   State

right-of-way . . . shall be subject to local government zoning

ordinances[,]" it is evident N.J.A.C. 16:41C-8.8(a) establishes

threshold requirements that must be satisfied without limiting

the   authority     of   local      government      to        further     regulate

billboards.     We therefore turn to the Township's effort to do

so.

                                        II

      In February 2008, the Board began the process of revamping

the   Township's    regulation     of    billboards      by    authorizing       the

Zoning Officer to prepare a draft billboard ordinance.                    Over the

following year, the drafting of the Ordinance was a matter of

discussion at the Board's meetings.               Input was received from

both the Land Use and Open Space Committee and the Township's

Environmental    Commission.       Plaintiff      engaged      actively    in    the

deliberative process, appearing before the Board to discuss a

lighting study supporting its position that LED lighting was

appropriate, and even submitting a suggested ordinance for the

Board's consideration.




                                        6                                 A-2432-12T3
       Minutes and memoranda from the various meetings reflect the

Board's consideration of digital billboards and the impact of

the size and placement of billboards along Interstate 287 (I-

287)     upon    driver    safety,     as     well   as    the     Environmental

Commission's concerns regarding the glare from billboards onto

residential properties and that billboards not be visible from

residential properties.           At the direction of the Land Use and

Open Space Committee, the draft ordinance was revised to include

a ban on variable message and electronic signage throughout the

Township.       One memo noted the draft ordinance's "rather unique

requirement," reducing the maximum distance of billboards from

the highway, which was intended to reduce overall tree removal

and the likelihood that billboards would be visible from local

roadways.

       In January 2009, Mark Healey, the Township's Director of

Planning,       reported   to    the   Board    regarding:       his   survey   of

existing    billboards;         potentially    acceptable    locations      along

Route 27 and I-287; and potential location, bulk, and design

requirements.       Healey recommended against allowing billboards on

Route 27 because most of the area under consideration there had

been developed and placement in front of existing businesses

"would    significantly     detract     from   community     character."         He

advised further that if the Board wanted to consider locations




                                        7                                A-2432-12T3
on    Route    27,     a    few    commercially        zoned     locations        might     be

appropriate      because          "they    are    either        undeveloped       or    have

features      (e.g.,       transmission      tower       or     industrial    use)      that

already      detract       from    the    aesthetics      of     the    area."         As    to

potential      design       restrictions,        the     memo    recommended       against

permitting billboards to "rotate, move, produce noise or smoke,

give the illusion of movement, display video or other changing

imagery, automatically change or be animated or blinking."

       The Board submitted a draft zoning ordinance to the Mayor

and Council in April 2009.                 The accompanying memo reports that

the   Board    "spent       four    worksession        meetings        on   the   proposed

ordinance and did a field visit to assess potential impacts."

The   Board    determined         that    permitting          billboards     along     I-287

would   be    the    most     appropriate        means    of     addressing       potential

First Amendment claims on the part of billboard companies.                                  The

memo discussed the Board's reasoning:

              The draft ordinance was carefully crafted to
              minimize    impact   to   the   character  of
              Franklin, particularly to the residential
              properties on the north side of I-287. For
              example, the ordinance would: limit the
              number of potential billboards; require that
              billboards be a certain distance apart;
              would limit their height and size; and would
              NOT   allow    billboards  adjacent   to  the
              residential properties along the north side
              of I-287 (i.e., billboards would ONLY be
              permitted on the industrially-zoned land on
              the opposite side of I-287).




                                             8                                     A-2432-12T3
    Specifically addressing the issue of digital billboards,

the memo stated:

         It should be noted that the Board spent a
         good amount of time discussing whether to
         permit LED billboards in the ordinance.   In
         the end, the Board decided that it would be
         best to not permit LED billboards in the
         Ordinance.   This was done because the Board
         felt that it did not have enough information
         or sufficient expertise to craft ordinance
         language   to   appropriately   address  LED
         billboards.    The Board, however, did not
         make a determination whether LED billboards
         would be inappropriate.      If a billboard
         company wanted to pursue a LED billboard,
         the Board felt that the more proper forum
         for that discussion was before the Zoning
         Board of Adjustment where sworn testimony by
         expert witnesses would be provided and where
         specific conditions could potentially be
         placed on its operation.

    In   language   similar    to       the   declarations   of    policy

underlying federal and state legislation, the stated purpose of

the Ordinance is "to balance the need to control and regulate

billboards, promote and preserve the scenic beauty and character

of the Township, provide for the safety and convenience of the

public, and to recognize certain Constitutional rights relative

to outdoor advertising."      The Ordinance permits a conditional

use of static billboards in an area approximately 2000 feet long




                                    9                             A-2432-12T3
fronting on I-287 in the M-2 zone, but prohibits all digital and

electronic billboards:4

          No billboard or billboard display area or
          portion thereof shall rotate, move, produce
          noise or smoke, give the illusion of
          movement, display video or other changing
          imagery,   automatically    change,   or  be
          animated   or   blinking,    nor  shall  any
          billboard   or  portion   thereof   have any
          electronic, digital, tri-vision or other
          animated characteristics resulting in an
          automatically changing depiction.

          [Franklin Twp., N.J., Ordinance 3875-10          §
          112-53.1(c)(3) (2010) (emphasis added).]

     Both the Ordinance and N.J.A.C. 16:41C-8.7(b)(3) require a

minimum of 1000 feet between billboards.         Since the M-2 zone

fronting I-287 is approximately 2000 feet long, the net result

is that the Ordinance permitted the construction of three static

billboards   in   that   area.   Because   N.J.A.C.   16:41C-8.8(a)(5)

requires a minimum of 3000 feet between multiple message signs,

only one digital billboard would be permitted in the Township if




4
     The Ordinance contains other restrictions relevant to
aesthetics and traffic safety.      The Ordinance prohibits any
billboard from being "painted with, or composed of, any material
of a fluorescent, phosphorescent, or holographic material,"
§ 3.C.6, or from displaying "pornographic or sexually indecent
and/or obscene pictures, depictions, or images[.]" § 3.C.7. In
addition, § 3.C.8 prohibits any billboard from displaying "words
or symbols that connote[] traffic control commands, including
but not being limited to 'STOP' or 'DANGER' or which may be
confused as a sign displayed by a public authority."




                                  10                           A-2432-12T3
the ban against electronic and digital billboards was eliminated

from the Ordinance.

                                               III

       When    the    Board     began      to        consider     the     adoption      of   an

ordinance governing billboards in 2008, E&J applied to NJDOT

pursuant to N.J.S.A. 27:5-8 for a permit to erect an electronic

multimessage billboard for off-site advertising on its property,

which is located in the M-2 zone, with 389 feet fronting on the

north side of I-287.               This is an industrial district, across

from a cemetery, adjacent to a large manufacturing facility with

land   to     the    rear    zoned       for    further      large      manufacturing        or

warehouse uses.          The proposed electronic billboard was oriented

to I-287.       A residential development lies across the highway,

with   the     closest      home   approximately            500   feet     away   from       the

proposed sign.         The proposed billboard consisted of two panels

measuring 48' by 14' each, arranged in a V-shape for visibility

to   both     the    northbound      and       southbound       lanes     of   I-287.        The

electronic panels would display static images in eight-second

intervals without scrolling, flashing, or animation.

       After    the    permit      was    issued       by   NJDOT    in    May    2009,      the

proposed electronic billboard remained subject to the Township's

zoning ordinances.          N.J.S.A. 27:5-9.1.              The Township had not yet

adopted the Ordinance at issue here.                         In September 2009, E&J




                                                11                                   A-2432-12T3
applied to the Board of Adjustment for a use variance under

N.J.S.A. 40:55D-70(d)(1).             Hearings on E&J's application were

held on February 4, April 1, and June 3, 2010.                              The Ordinance

was adopted prior to the last hearing.                          E&J then amended its

application to request a variance pursuant to N.J.S.A. 40:55D-

70(d)(3)    (the       D-3    variance)    to     permit        construction         of   the

electronic       billboard.         The   Board     of     Adjustment          denied     its

application.

    E&J filed a four-count complaint in lieu of prerogative

writs, alleging the prohibition of digital billboards in the M-2

zone violated both the First Amendment and the Equal Protection

Clause     of    the     Fourteenth       Amendment        to    the       United     States

Constitution.           E&J   did   not    challenge       any        other    restriction

contained in the Ordinance.               In addition, the complaint alleged

the Board had acted arbitrarily, capriciously and unreasonably

in denying its application for a variance, and that the Township

acted ultra vires in adopting the Ordinance.

                                           IV

    At the bench trial that followed, evidence was presented

about the character of the Township.                  Approximately forty-seven

square     miles,        Franklin     Township       is         the       second     largest

municipality       in    Somerset     County.         It    is        a   highly     diverse

community       that    includes    urban,      suburban,       rural,        and   economic




                                           12                                       A-2432-12T3
development areas.              I-287 runs through the northwest section of

the   Township,         passing       through       the    M-2    industrial         zone   where

large   corporate         structures          and    manufacturing           facilities       are

located.      However, over forty percent of the Township is zoned

for   very    low       density       and    over    8,000       acres      are   publicly     or

privately preserved.

      John    T.    Chadwick,          IV,   E&J's        planning     expert,       testified,

"The town has been very aggressive in preserving farmland and

acquiring      open      space."            However,       Chadwick         opined    that    the

prohibition        of    any    digital       billboard          in   the    zone    would    not

advance the unique beauty and character of the Township because

the particular zone was an industrial district, rather than a

rural or historic neighborhood, and because the closest home is

500 feet across the highway.

      Jonathan      Slass,        a    principal      of     E&J,     testified        that   the

digital      billboard         would    serve       traditional        advertisers,         small

businesses, political advertisers, and nonprofit organizations.

In addition, a block of time would be controlled by the Township

for public service announcements as police emergencies.

      Among the other witnesses E&J presented, an employee of a

digital sign manufacturer testified about the safety of digital

billboards and the advantage of being able to instantly change

messages to serve the public interest.                           A licensed professional




                                                13                                      A-2432-12T3
engineer testified there was "no conclusive evidence to suggest

that digital billboards relate to an increase in accidents or

have a direct correlation on [sic] driver safety."                          On cross-

examination,   the      engineer    admitted         the     methodology      of    the

studies she relied upon has been subject to criticism.

      Testifying   as    an     expert    in      planning    for     the    Township,

Healey stated the Ordinance was adopted to update the Township's

signage   regulations     and    create       a   comprehensive       regulation     of

outdoor advertising while preserving the Township's community

character and aesthetics.            Healey testified that the ban on

digital billboards was consistent with the intent to preserve

the   Township's     character     for        several      reasons:    (1)    digital

billboards tend to be brighter and have an appearance of being

much more crisp in resolution; (2) the Township had a reasonable

concern about having a digital billboard of almost 700 square

feet at a gateway into the township; and (3) since the Ordinance

would permit three billboards in the M-2 zone, there could be

two static billboards in the M-2 zone in addition to a digital

billboard if the ban was invalidated.

      In response to the argument that a digital billboard would

provide a means of instantly communicating emergency messages,

Healey testified that the Township had the ability to do so

without the use of digital billboards. There are two signs on




                                         14                                   A-2432-12T3
the stretch of land along I-287, placed by NJDOT, that have been

used for Amber Alert and Silver Alert messages.              In contrast to

the size and characteristics of the proposed digital billboard,

the signs are less than 100 feet square, with an amber color

display on a black background and do not scroll.               In addition,

the Township has a "reverse 9-1-1" calling system it uses to

alert residents when there is flooding.            Residents are also able

to sign up to receive "email blasts" from the Township when

necessary.

    The trial judge concluded that the Township's decision to

deny E&J's application for a D-3 variance to erect the digital

billboard was not arbitrary, capricious, or unreasonable.                   The

trial   judge     also   rejected   E&J's    equal   protection    argument,

finding that the Township had demonstrated a rational basis for

the distinction between digital and static billboards.                   Citing

Greenberg    v.   Kimmelman,   99   N.J.    552,   563   (1985),   the    judge

stated:

            The Township's concern with the impact of
            digital billboards on community aesthetics,
            as well as the lack of conclusive evidence
            regarding the impact of the billboards on
            traffic safety, provides at least some
            rational basis for enactment of the ban on
            digital billboards. While plaintiff asserts
            that the evidence indicates no such impact
            is likely to occur, it cannot be denied that
            digital   billboards,  at   minimum,  create
            visual stimuli different than that of a
            traditional billboard.    By the mere fact



                                     15                              A-2432-12T3
               that the images change, there is the chance
               that the digital billboard could possibly
               impact  community   aesthetics  or  traffic
               safety.

       Despite these findings, the trial judge invalidated § 112-

53.1(c)(3)       of     the      Ordinance,     concluding     that    the   digital

billboard ban violated the First Amendment.

       In its appeal, the Township argues that the trial court

erred    in    applying       an   intermediate     scrutiny    standard     to     the

Ordinance and that, instead, the court should have determined

whether the Township's adoption of the Ordinance was arbitrary,

capricious or unreasonable.              Alternatively, the Township argues

that    because       the   ordinance    is     content-neutral,      it   should    be

reviewed pursuant to the time, place, and manner standard set

forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct.

2746, 105 L. Ed. 2d 661 (1989).

       Because this appeal calls for our review of the "trial

court's interpretation of the law and the legal consequences

that flow from established facts," we conduct a de novo review.

Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).       We agree with the trial court that a time, place, and

manner review is appropriate here.                  But, we part company with

the    trial    court       in   its   reliance    upon   Bell.       Although      the

language used is similar to that of the test identified in Clark

v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct.



                                           16                                A-2432-12T3
3065, 82 L. Ed. 2d 221 (1984), the trial court's application,

relying upon Bell, required the Township to meet standards not

required in the review of content-neutral time, place and manner

restrictions.

                                           V

     The    Township's      argument       that     the     Ordinance     enjoyed     a

presumption of validity that could only be overcome by evidence

that its regulation was arbitrary, capricious, or unreasonable

lacks   merit   because     "the    regulation        of   billboards     implicates

fundamental     First     Amendment    rights."            CBS   Outdoor,   Inc.     v.

Borough    of   Lebanon    Planning       Bd./Bd.     of    Adjustment,     414   N.J.

Super. 563, 587 (App. Div. 2010).                 Our view is in harmony with

federal precedent.5       "Billboards are a well-established medium of

communication"          that       have        both         "communicative          and

noncommunicative aspects."          Metromedia, supra, 453 U.S. at 501-

5
   Because we ordinarily interpret our State Constitution's free
speech clause, N.J. Const. art. I, ¶6, to be no more restrictive
than the First Amendment to the United States Constitution, "'we
rely on federal constitutional principles in interpreting the
free speech clause of the New Jersey Constitution.'"    Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) (quoting
Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998)),
cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770
(1999)); see also Bell, supra, 110 N.J. at 393. Two exceptions
to the general rule, not applicable here, are political
expression at privately-owned-and-operated shopping malls, N.J.
Coal. Against War in the Middle E. v. J.M.B. Realty Corp., 138
N.J. 326 (1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 133
L. Ed. 2d 25 (1995), and defamation, Sisler v. Gannett Co., 104
N.J. 256 (1986).



                                          17                                 A-2432-12T3
02, 101 S. Ct.             at 2889-90, 69 L. Ed. 2d at 811 (plurality

opinion).     "[T]he         government         has     legitimate         interests    in

controlling the noncommunicative aspects of the medium, but the

First and Fourteenth Amendments foreclose a similar interest in

controlling the communicative aspects."                      Id. at 502, 101 S. Ct.

at   2890,   69   L.       Ed.    2d   at   811    (citation       omitted).    "Because

regulation of the noncommunicative aspects of a medium often

impinges to some degree on the communicative aspects, it has

been   necessary       for       the   courts     to   reconcile     the    government's

regulatory interests with the individual's right to expression."

Ibid.; see also            Ladue, supra, 512 U.S. at 48, 114 S. Ct. at

2042, 129 L. Ed. 2d at 43.               We conduct "a particularized inquiry

into the nature of the conflicting interests at stake here,

beginning    with      a    precise      appraisal      of   the    character    of    the

ordinance as it affects communication."                      Metromedia, supra, 453

U.S. at 503, 101 S. Ct. at 2890, 69 L. Ed. 2d at 812.

       As we have noted, the Ordinance did not ban all billboards,

only one feature of billboards that is unrelated to the content

of any message.            To be precise, the practical effect of the ban

was to prohibit electronic multi-messaging on a single billboard

in the Township. In sum, it is essentially undisputed that a

"time, place or manner" analysis is appropriate.




                                            18                                   A-2432-12T3
                                             VI


       Under     the     applicable        standard,      time,     place     or       manner

restrictions are valid, provided they satisfy three criteria:

(1) they "are justified without reference to the content of the

regulated speech," (2) "they are narrowly tailored to serve a

significant      governmental         interest,"        and   (3)   "they     leave     open

ample      alternative          channels          for     communication           of      the

information."          Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,

105 L. Ed. 2d at 675; Clark, supra, 468 U.S. at 293, 104 S. Ct.

at 3069, 82 L. Ed. 2d at 227; see also McCullen v. Coakley, ___

U.S. ___, ___, 134 S. Ct. 2518, 2529, 189 L. Ed. 2d 502, 514

(2014); Hill v. Colorado, 530 U.S. 703, 725-26, 120 S. Ct. 2480,

2494, 147 L. Ed. 2d 597, 617 (2000); Besler, supra, 201 N.J. at

570; In re Atty Gen.'s "Directive on Exit Polling: Media & Non-

Partisan       Pub.     Interest      Grps.",      200    N.J.      283,    304      (2009);

Hamilton Amusement Ctr., supra, 156 N.J. at 267-68.

       Although the trial court found the Ordinance to be a time,

place and manner restriction, it did not apply the standard

identified in Ward and Clark for the review of content-neutral

time, place and manner restrictions.                     Instead, the court relied

heavily upon our Supreme Court's decision in Bell, and concluded

that    the     Township       had    failed      to     supply     "a     factual      basis

demonstrating           that         the       Ordinance's          ban       on         only



                                             19                                    A-2432-12T3
digital/electronic         billboards        serves           a   legitimate       government

interest    and      is    narrowly     drawn           to     advance       its   government

interests."       The trial court's reliance upon Bell was misplaced

on both legal and factual grounds.

      The   ordinance       in   Bell    created              a   township-wide          ban    on

billboards.       In contrast, here, the Township has not banned all

billboards.       In addition to those billboards erected before it

was   adopted,       the    Ordinance        permits          the      erection     of    three

billboards in the M-2 zone.             As we have noted, there has been no

challenge to the Ordinance on the ground that it unreasonably

limits the number or location of billboards.

      Unlike      the      explicit     statements                of    reasons     for        the

Township's action here, borne out by a supporting history, the

challenged ordinance in Bell failed to reveal any "governmental

objectives or its factual underpinnings," and the record was

"almost     completely       devoid     of        any        evidence        concerning    what

interests of Stafford are served by the ordinance and the extent

to which the ordinance has advanced those interests."                               110 N.J.

at 396.      Because the ordinance encroached upon a fundamental

right, the Court rejected the municipality's argument that its

ordinance      was    entitled    to     a        presumption           of    validity,        and

analyzed the constitutionality of the ordinance based upon its

total prohibition of a form of expression.                          Id. at 395-96.




                                             20                                      A-2432-12T3
         It is also telling that Bell did not engage in an analysis

of   a    content-neutral     time,     place,       and   manner    restriction       on

expression        pursuant   to   the   standard       applied      in   both    Clark,

supra, 468 U.S. at 293, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227,

and City Council of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), a standard

that has since been applied by our courts in reviewing such

regulations.6        E.g., Hamilton Amusement Ctr., supra, 156 N.J. at

267-68.          Instead, the Court applied the Central Hudson7 test

relied upon by the plurality in Metromedia which governs the

review      of    restrictions    on    commercial         speech    that    are      not

content-neutral.         Bell, supra, 110 N.J. at 392-98.                   The four-

part Central Hudson test requires that (1) the commercial speech

"must concern lawful activity and not be misleading," (2) the

asserted     governmental     interest        must    be   substantial,         (3)   the

regulation must "directly advance[] the governmental interest

asserted," and (4) the regulation must not be "more extensive

than is necessary to serve that interest."                   Cent. Hudson, supra,

447 U.S. at 566, 100 S. Ct. at 2351, 65 L. Ed. 2d at 351.


6
     Ward was decided after Bell.
7
   Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447
U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341, 351
(1980).




                                         21                                     A-2432-12T3
    However, when the government regulates "features of speech

unrelated   to    its    content,"     it    is   afforded    "somewhat      wider

leeway."    McCullen, supra, ___ at ___, 134 S. Ct. at 2529, 189

L. Ed. 2d at 514.         The level of scrutiny we apply depends on

whether the restriction is a content-neutral regulation of the

time,   place,    or    manner   of    the   speech   or     whether    it     is   a

restriction on the content of the speech itself.                   See id. at

___, 134 S. Ct. at 2529, 189 L. Ed. 2d at 514-15.

    Since Bell, our courts have recognized that the standard

governing   the    regulation     of    commercial    speech8    that     is    not

content-neutral and the standard applicable to time, place, and

manner restrictions, are often "closely intertwined," and have

even applied both tests simultaneously. See Hamilton Amusement

Ctr., supra, 156 N.J. at 268 (citing City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 46, 54-55, 106 S. Ct. 925, 928,


8
    The primary use of the billboard here is for commercial
speech, i.e., "expression related solely to the economic
interests of the speaker and its audience." Cent. Hudson, supra,
447 U.S. at 561, 100 S. Ct. at 2349, 65 L. Ed. 2d at 348. Such
speech, "proposing a commercial transaction," id. at 562, 100 S.
Ct. at 2349, 65 L. Ed. 2d at 348, may be subject to stricter
regulations than non-commercial speech. State v. DeAngelo, 197
N.J. 478, 485 (2009); see also Metromedia, supra, 453 U.S. at
512-15, 101 S. Ct. at 2895-96, 69 L. Ed. 2d at 818-19 (plurality
opinion concluding that ordinance met constitutional guidelines
"insofar   as   it  regulated   commercial   speech,"  but   was
unconstitutional because of its restrictive impact on non-
commercial speech); Barry v. Arrow Pontiac, Inc., 100 N.J. 57,
72 (1985).



                                       22                                A-2432-12T3
932, 89 L. Ed. 2d 29, 37, 42 (1986)); N.J. Dep't. of Labor &

Workforce Dev. v. Crest Ultrasonics, 434 N.J. Super. 34, 38

(App.   Div.   2014).       The   analyses       in    these   cases     support     our

conclusion     that   the    trial    court's         interpretation         imposed    a

burden on the Township that is not required for content-neutral

restrictions     on     time,     place,       and    manner    expression.            We

therefore conduct a de novo review of the application of the

Ward test to the Ordinance here.

                                           A

     Because there is no serious issue that the restriction here

is   content-neutral,       the    first       prong    of     the    Ward    test     is

satisfied.     Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754,

105 L. Ed. 2d at 675.              However, because that factor weighs

heavily in the analysis, further discussion is merited.

     Government regulation of expressive activity is content-

neutral so long as it is "justified without reference to the

content of the regulated speech."                    Clark, supra, 468 U.S. at

293, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227.                        The government's

purpose   in     adopting       the   regulation         is     "the      controlling

consideration" in determining content neutrality.                       Ward, supra,

491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at 675.                           "The

principal inquiry . . . is whether the government has adopted a

regulation of speech because of disagreement with the message it




                                       23                                      A-2432-12T3
conveys."     Ibid.       When the regulation "serves purposes unrelated

to the content of expression," it is "deemed neutral, even if it

has an incidental effect on some speakers or messages but not

others."      Ibid.; see also Besler, supra, 201 N.J. at 570-71;

Hamilton Amusement Ctr., supra, 156 N.J. at 268.

       On its face, the Ordinance does not restrict any speech

based on its content.              The restriction at issue applies with

equal force, regardless of the content of the speech.                             E&J did

not argue and the trial court did not find that the Township's

motivation in adopting the Ordinance was anything other than its

stated interests in aesthetics and traffic safety. Although the

trial court concluded that those interests were not sufficiently

advanced by the digital billboard ban, it is undisputed that the

Township's     purpose,       the        "controlling       consideration,"          Ward,

supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at

675,    was   to    serve    its    interests     in     aesthetics       and     traffic

safety.       The    Ordinance      plainly      meets      the    definition        of    a

content-neutral regulation.

       Further,     the    restriction       relates    only      to    the   format      in

which   the   communication         is    delivered     –   by    way    of   a   digital

billboard as opposed to a static billboard.                      Even if the digital

delivery system may be considered "expressive and part of the

message delivered," the regulation remains a restriction on the




                                            24                                    A-2432-12T3
manner of expression, see Clark, supra, 468 U.S. at 294, 104 S.

Ct. at 3069, 82 L. Ed. 2d at 227-28, and is therefore governed

by the standard applicable to restrictions on the time, place,

or manner of expression.

    E&J agrees that a time, place and manner analysis applies

here.     However, somewhat incongruously, it also contends that

the ban on digital billboards "constitutes a non-content neutral

restriction on plaintiff's planned and non-commercial speech,"

and "discriminate[s] between forms of non-commercial speech."

In support of the latter argument, E&J states that while certain

non-commercial   messages   could    be   adequately    presented   on   a

static billboard, emergency public service announcements such as

Amber Alerts cannot be communicated through that medium.

    E&J's effort to elevate the ban on digital billboards to a

content related restriction lacks any merit.           As we have noted,

a restriction on speech that serves purposes unrelated to the

content of the speech is "deemed neutral, even if it has an

incidental effect on some speakers or messages but not others."

Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d

at 675.

    Moreover, "the First Amendment does not guarantee the right

to employ every conceivable method of communication at all times

and in all places."   Vincent, supra, 466 U.S. at 812, 104 S. Ct.




                                    25                          A-2432-12T3
at 2132, 80 L. Ed. 2d at 791 (citing Heffron v. Int'l Soc. for

Krishna Consciousness, 452 U.S. 640, 647, 101 S. Ct. 2559, 2564,

69 L. Ed. 2d 298, 306 (1981)).                          In Clark, demonstrators who

wanted    to   call       attention          to     the    plight      of    the    homeless

challenged a ban on sleeping in national parks.                                468 U.S. at

289, 104 S. Ct. at 3067, 82 L. Ed. 2d at 224.                               Rejecting their

constitutional claim, the Court stated, "That sleeping . . . may

be   expressive       and    part       of        the     message     delivered      by     the

demonstration does not make the ban any less a limitation on the

manner of demonstrating, for reasonable time, place, or manner

regulations    normally          have   the        purpose      and   direct       effect   of

limiting expression but are nevertheless valid."                             Clark, supra,

468 U.S. at 294, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227-28.                                 In

Vincent, supra, 466 U.S. at 810, 104 S. Ct. at 2131, 80 L. Ed.

2d at 790, the challenged ordinance also prohibited a "medium of

expression,"       the    posting       of    signs        on   public      property.       In

upholding the constitutionality of the ordinance, the Supreme

Court    stated,    "it     is    the    tangible          medium     of    expressing      the

message that has the adverse impact on the appearance of the

landscape. . . . [T]he substantive evil -- visual blight -- is

not merely a possible byproduct of the activity, but is created

by the medium of expression itself."                      Ibid.




                                              26                                     A-2432-12T3
     Here, the Township justifies its prohibition of digital

billboards       based      on    its       interest         in     aesthetics         and   traffic

safety,    "without         reference         to       the    content       of    the    regulated

speech."     See Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,

105 L. Ed. 2d at 227.               Even if the use of an electronic multi-

message    is    considered         a       form       of    expression,         the    incidental

effect     of        the    Ordinance's            ban        on     announcements            to    be

communicated          in    eight-second            segments         does        not    strip       the

Ordinance of its content neutrality.                              We therefore turn to the

remaining criteria and their application here.

                                                   B

    The second prong of the Ward test is that the regulation

must be "narrowly tailored to serve a significant governmental

interest."       Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2753,

105 L. Ed. 2d at 675.                   This requires us to determine first,

whether    there       is    such       a    governmental            interest          and   second,

whether    the       regulation     is       "narrowly            tailored"       to    serve      that

interest.

    The burden of proving a "substantial government interest"

is not a heavy one.              Hamilton Amusement Ctr., supra, 156 N.J. at

270-71.          A     zoning       ordinance               "need     not        articulate        its

objectives,"         id.    at    271       (citing         Zilinsky     v.      Zoning      Bd.     of

Adjustment, 105 N.J. 363, 371 (1987)), or produce "empirical




                                                   27                                        A-2432-12T3
data . . . accompanied by a surfeit of background information."

Id. at 271 (quoting Fla. Bar v. Went for It, Inc., 515 U.S. 618,

628, 115 S. Ct. 2371, 2378, 132 L. Ed. 2d 541, 552 (1995)).                                       To

satisfy      this   burden,     the       evidence         must       "provide       a   rational,

objective basis from which a reviewing court can ascertain the

existence of a substantial governmental interest underpinning

the    legislation,"        Twp.     of    Cinnaminson            v.    Bertino,         405   N.J.

Super. 521, 535 (App. Div.), cert. denied, 199 N.J. 516 (2009),

and will be sufficient if "whatever evidence the [legislative

body] relies upon is reasonably believed to be relevant to the

problem" addressed.          Hamilton Amusement Ctr., supra, 156 N.J. at

270 (quoting Renton, supra, 475 U.S. at 51-52, 106 S. Ct. at

931, 89 L. Ed. 2d at 40).                 Such support may come in the form of

"reference       to     studies       pertaining            to        other      jurisdictions,

legislative history, consensus, and even common sense."                                    Id. at

271.

       The government interests identified here were aesthetics

and    traffic        safety.         It       is     universally             recognized       that

government      has     a   legitimate,             even    substantial,            interest     in

preserving      the    aesthetics         of    its    community           and      in   promoting

traffic safety.         See Metromedia, supra, 453 U.S. at 507-08, 101

S. Ct. at 2892, 69 L. Ed. 2d at 815 (noting that "traffic safety

and    the    appearance        of    the       city        .     .    .      are    substantial




                                               28                                         A-2432-12T3
governmental        goals").     Further,        there    is    little       dispute    that

billboards,     of       any   type,    are      widely    considered         to    have    a

negative    impact        upon    aesthetics       and     traffic        safety.          See

Vincent, supra, 466 U.S. at 808, 104 S. Ct. at 2130-31, 80 L.

Ed. 2d at 789 (stating it is not speculative to recognize that

posted signs, like billboards, can be perceived as an "esthetic

harm"); Metromedia, supra, 453 U.S. at 508-09, 101 S. Ct. at

2893, 69 L. Ed. 2d at 815-16 (stating "as a matter of law that

an ordinance which eliminates billboards designed to be viewed

from    streets      and       highways     reasonably          relates       to    traffic

safety"); Susan C. Sharpe, "Between Beauty and Beer Signs": Why

Digital Billboards Violate the Letter and Spirit of the Highway

Beautification Act of 1965, 64 Rutgers L. Rev. 515 (2012).

       Here, the Ordinance explicitly stated the purpose for its

regulation of billboards was "to balance the need to control and

regulate billboards, promote and preserve the scenic beauty and

character      of     the      Township,      provide          for     the    safety     and

convenience         of     the    public,         and     to         recognize      certain

Constitutional       rights      relative     to    outdoor          advertising."       See

Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 34 (1st

Cir.   2008)    (finding         that   the      city's    "stated        justifications

plainly constitute significant governmental interests").




                                            29                                     A-2432-12T3
       Turning to the evidence relied upon by the Township, we

note    the     record     includes    repeated    statements      from     the

Environmental     Commission     of   its   concerns   regarding   the    glare

from billboards onto residential properties and its urging that

billboards not be visible from residential properties.              Healey's

recommendations to the Board regarding locations for billboards

reflected concern as to whether placement "would significantly

detract from community character," or have little effect because

of existing conditions at the site.9           Healey also testified that

specific      attributes    of   digital     billboards,   such    as     their

increased crispness and brightness, and the possible placement

with additional static billboards, were relevant to the decision

to adopt a ban.          The Township also offered excerpts from the

NJDOT, Bureau of Safety Programs, Summary of Crash Rates on

State and Interstate Highways in Route and Milepost Order for




9
   The fact that E&J's billboard would be placed on a section of
I-287 which is already industrialized does not detract from the
Township's stated interest in preserving aesthetics.          In
Interstate Outdoor Advertising, L.P. v. Zoning Board of Mt.
Laurel, 706 F.3d 527, 532 (3d Cir. 2013), the Court of Appeals
rejected a similar argument, stating, "The industrial nature of
the highway does not mitigate Mount Laurel's concerns about the
aesthetics of the highway. In fact, it may well suggest an even
greater need to guard against the deterioration of the
Township's character and evoke a greater concern for safety."




                                       30                            A-2432-12T3
2006 through 2009;10        Jerry Wachtel, A Critical,                 Comprehensive

Review    of     Two    Studies    Recently           Released    by      the   Outdoor

Advertising      Association      of    America       (Final     Report    2007),      and

excerpts from a publication of the United States Department of

Transportation, The Effects of Commercial Electronic Variable

Message Signs (CEVMS) on Driver Attention and Distraction: An

Update, Federal Highway Administration, Publication Number FHWA-

HRT-09-018 (2009) (USDOT Report).11                   The last of these studies

concluded it was important to conduct "carefully controlled and

methodologically sound" research because the available studies

were inconclusive in "demonstrating detrimental driver safety

effects    due     to    CEVMS     exposure."            USDOT     Report       at     7.0

Conclusions.

       The recognized need for further studies on the impact of

such   billboards,      along     with       the     Township's    stated       reasons,

provides a rational, objective basis for the Township's decision

to refrain from adopting a regulation of them.                            In all, the

record    establishes      that        the        Township   relied       on    evidence

"reasonably believed to be relevant to" the interest identified

10
    The full reports for 2006 through 2009 are available at
http://www.State.NJ.US/transportation/refdata/accident (last
visited Oct. 2, 2014).
11
   The report is available at
 http://www.fhwa.dot.gov/real_estate/oac/possible_effects/                           (last
visited Oct. 2, 2014).



                                             31                                 A-2432-12T3
in the Ordinance's stated purpose.                      See Hamilton Amusement Ctr.,

supra,      156    N.J.    at   270.       It      is    further     evident       from     the

Ordinance's declaration of purpose, its drafting history and the

proofs presented at trial that the Township's stated interests

in the regulation here were authentic and not a subterfuge for

an    improperly         motivated    restriction         on    expression.           We    are

satisfied         that    the   Township      presented         adequate      proof    of     a

substantial government interest for the regulation.

       Under the Ward standard our Supreme Court applies, there

are two components to the "narrowly tailoring" requirement:                                 (1)

the regulation must promote a substantial government interest

that would be achieved less effectively without the regulation,

and   (2)    the     restriction       must     not     "burden     substantially          more

speech than is necessary to further" the State's content-neutral

interest.         Ward, supra, 491 U.S. at 798-800, 109 S. Ct. at 2757-

58, 105 L. Ed. 2d at 680-81.

       The   government's        determination           as    to   whether    a   content-

neutral regulation "promotes a substantial government interest"

will ordinarily be entitled to our deference.                         "'The validity of

[time, place, or manner] regulations does not turn on a judge's

agreement with the responsible decisionmaker concerning the most

appropriate         method      for     promoting             significant      government

interests' or the degree to which those interests should be




                                              32                                    A-2432-12T3
promoted."    Id. at 800, 109 S. Ct. at 2758, 101 L. Ed. 2d at 681

(quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.

Ct. 2897, 2907, 86 L. Ed. 2d 536, 548 (1985)).

       Turning to the requirement that the restriction be narrowly

drawn, the trial court found the ban on digital billboards was

more    expansive   than   necessary      to   "preserv[e]   aesthetics      and

traffic safety," relying upon Bell, supra, 110 N.J. at 396-97,

for the proposition that an ordinance's restriction must be "the

least restrictive means of advancing its legitimate government

interest."

       It is, however, clear that a regulation need not be "the

least    restrictive   means"   to    satisfy      the   requirement   that     a

content-neutral     restriction      on    time,    place,   and   manner      be

"narrowly tailored."       In Ward, which was decided after Bell, the

United States Supreme Court squarely addressed this question,

stating:

            Lest any confusion on the point remain, we
            reaffirm today that a regulation of the
            time, place, or manner of protected speech
            must be narrowly tailored to serve the
            government's    legitimate,  content-neutral
            interests but that it need not be the least
            restrictive or least intrusive means of
            doing so. Rather, the requirement of narrow
            tailoring is satisfied "so long as the . . .
            regulation promotes a substantial government
            interest   that   would   be  achieved  less
            effectively absent the regulation." To be
            sure, this standard does not mean that a
            time, place, or manner regulation may burden



                                      33                               A-2432-12T3
         substantially more speech than is necessary
         to   further   the    government's    legitimate
         interests.   Government     may   not   regulate
         expression   in    such    a   manner   that    a
         substantial portion of the burden on speech
         does not serve to advance its goals. So long
         as the means chosen are not substantially
         broader   than   necessary    to   achieve    the
         government's     interest,      however,      the
         regulation   will    not   be   invalid    simply
         because    a   court     concludes    that    the
         government's interest could be adequately
         served    by   some     less-speech-restrictive
         alternative.

         [Ward, supra, 491 U.S. at 798-800, 109 S.
         Ct. at 2757-58, 105 L. Ed. 2d at 680-81
         (internal citations and quotations omitted)
         (emphasis added).]

See also Clark, supra, 468 U.S. at 299, 104 S. Ct. at 3072, 82

L. Ed. at 230 (rejecting the proposition that the challenged

regulation    was   invalid   because    there   were   "less   speech-

restrictive    alternatives    that     could    have   satisfied     the

Government interest.").       Thereafter, in Board of Trustees v.

Fox, 492 U.S. 469, 477-78, 109 S. Ct. 3028, 3033-34, 106 L. Ed.

2d 388, 402 (1989), the Court again clarified:

         We have refrained from imposing a least-
         restrictive-means requirement -- even where
         core political speech is at issue -- in
         assessing the validity of so-called time,
         place, and manner restrictions.   We uphold
         such restrictions so long as they are
         "narrowly tailored" to serve a significant
         governmental interest, a standard that we
         have not interpreted to require elimination
         of all less restrictive alternatives. . . .
         In requiring that to be "narrowly tailored"
         to serve an important or substantial state



                                  34                            A-2432-12T3
          interest, we have not insisted that there be
          no conceivable alternative, but only that
          the regulation not "burden substantially
          more speech than is necessary to further the
          government's legitimate interests."    And we
          have   been   loath   to   second-guess   the
          Government's judgment to that effect.

          [(Internal citations omitted).]

See also Regan v. Time, Inc., 468 U.S. 641, 657, 104 S. Ct.

3262, 3271, 82 L. Ed. 2d 487, 500 (1984) (plurality opinion)

("The less-restrictive-alternative analysis . . . has never been

a part of the inquiry into the validity of a time, place, and

manner regulation.").

     Since   Bell   was   decided,   our   Supreme   Court    has    had   the

opportunity to declare whether our Constitution demands that a

challenged regulation satisfy a "least restrictive means" test

and instead reaffirmed its reliance "on federal constitutional

principles in interpreting the free speech clause of the New

Jersey Constitution."      Hamilton Amusement Ctr., supra, 156 N.J.

at 264.      Addressing the "narrowly tailored" requirement, our

Supreme Court explicitly relied upon the standard set forth in

Ward,   stating,    "to   satisfy    Central   Hudson   and    the    narrow

tailoring requirement of Clark,[12] the regulation need not be


12
     Finding the restriction of signage in sexually oriented
businesses in N.J.S.A. 2C:34-7c was content-neutral and that the
purpose of the statute was to regulate commercial speech,
Hamilton Amusement Ctr., supra, 156 N.J. at 266-68, the Court
                                                     (continued)


                                     35                              A-2432-12T3
the    least    restrictive      means   of   serving    the   State's   content-

neutral      substantial    interest."        Id.   at   277   (emphasis    added)

(citing Ward, supra, 491 U.S. at 797, 109 S. Ct. at 2757, 105 L.

Ed. 2d at 679).            The appropriate standard requires only that

"the means chosen does not 'burden substantially more speech

than    is     necessary    to    further'    the    State's    content-neutral

interest."       Ibid. (quoting Ward, supra, 491 U.S. at 799, 109 S.

Ct. at 2758, 105 L. Ed. 2d at 681).             Here, too, the government's

decision as to how to achieve its objective is afforded some

deference.

               What our decisions require is a "'fit'
               between the legislature's ends and the means
               chosen to accomplish those ends," -- a fit
               that   is   not   necessarily  perfect,   but
               reasonable; that represents not necessarily
               the single best disposition but one whose
               scope is "in proportion to the interest
               served," that employs not necessarily the
               least restrictive means but . . . a means
               narrowly tailored to achieve the desired
               objective.   Within those bounds we leave it
               to governmental decisionmakers to judge what
               manner of regulation may best be employed.

               [Fox, supra, 492 U.S. at 478-480, 109 S. Ct.
               at 3033-35, 106 L. Ed. 2d at 402-04
               (internal   citations   omitted)   (emphasis
               added).]


(continued)
determined the restriction should be examined simultaneously
under both the time, place and manner test articulated in Clark,
and the test applicable to the regulation of commercial speech
that is not content-neutral set forth in Central Hudson. Id. at
268.



                                         36                                A-2432-12T3
"'It is not [the] function [of the Court] to appraise the wisdom

of [the governmental regulation because the government] . . .

must   be   allowed      a   reasonable    opportunity     to   experiment      with

solutions to admittedly serious problems.'" Hamilton Amusement

Ctr., supra, 156 N.J. at 278 (quoting Renton, supra, 475 U.S. at

52, 106 S. Ct. at 931, 89 L. Ed. 2d at 42).

       The fact that the Ordinance bans all digital billboards

does not preclude a finding that the Ordinance is "narrowly

tailored."        In Vincent, the Court concluded that an ordinance's

complete     ban    on   signs     was    "narrowly     tailored"    because      the

ordinance "did no more than eliminate the exact source of the

evil it sought to remedy," visual clutter.                 466 U.S. at 808, 104

S. Ct. at 2130, 80 L. Ed. 2d at 789.                  See also Fox, supra, 492

U.S. at 478, 109 S. Ct. at 3033-34, 106 L. Ed. 2d at 402 ("[W]e

have been loath to second-guess the Government's judgment" as to

whether     the    regulation      does    not   "burden    substantially        more

speech than is necessary to further the government's legitimate

interests."); Interstate Outdoor, supra, 706 F.3d at 532 ("In

the context of billboards, the Supreme Court has deferred to the

collective judgment of both legislatures and lower courts, and

highlighted        the       importance     of   considering        the     plainly

unattractive       nature     of   billboards    when    evaluating       whether    a




                                          37                                A-2432-12T3
billboard ban directly advances a local government's interests

in traffic safety and aesthetics.")

      The "source of the evil" the Township sought to remedy was

the   heightened          intrusive        quality      of     digital     billboards,

affecting the aesthetics of the town and the residential area

nearby,     and      a    not      unreasonable       unease     that     the   digital

billboards would have a negative impact upon traffic safety.

The ban on digital billboards was no broader than was necessary

to eliminate that heightened intrusive quality.                          Moreover, the

ban was adopted within an Ordinance that permitted billboards in

the   Township       under   conditions       not     otherwise    challenged      here.

The   record      here     shows    that    the   Township      clearly    stated     its

objectives for the Ordinance, that it considered the concerns

expressed      and       information       received     during    the     deliberative

process, and that other provisions in the Ordinance serve the

same objectives of traffic safety and aesthetics.                          These facts

all support the conclusion that the ban on digital billboards

"represents        a      reasoned      compromise           between     serving      the

[Township's] asserted goals and allowing some" billboards in the

Township.      See Hamilton Amusement Ctr., supra, 156 N.J. at 278-

79.   We are therefore satisfied that the second prong was met.




                                             38                                 A-2432-12T3
                                               C

       The third prong requires that the restrictions imposed by

the    regulation         "leave      open     ample     alternative         channels        for

communication of the information."                       Ward, supra, 491 U.S. at

791, 109 S. Ct. at 2753, 105 L. Ed. 2d at 675.                           See also Heffron

v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 654, 101

S.    Ct.   2559,       2567,    69    L.     Ed.   2d   298,      311      (1981).         "[A]

restriction        on     expressive         activity      may   be      invalid      if     the

remaining     modes       of    communication        are    inadequate."            Vincent,

supra, 466 U.S. at 812, 104 S. Ct. at 2132, 80 L. Ed. 2d at 791.

To assess the adequacy of remaining modes of communication, we

focus upon the advantage of the restricted means of expression

and determine whether "these same advantages cannot be obtained

through other means."13            Ibid.

       The advantage to an electronic multi-message billboard is

that a message may be posted or changed in short order.                                      E&J

admits that the lion's share of the commercial speech to be

projected     on    its        proposed      billboard      does      not    require       this

advantage.          The    only       type    of    message      identified        as      being


13
   While there may be differences between the cost and potential
audience of the alternatives and the proposed digital billboard,
that does not render the alternative avenues of communication
inadequate. See Interstate Outdoor, supra, 706 F.3d at 535;
Naser Jewelers, supra, 513 F.3d at 37.




                                               39                                     A-2432-12T3
adversely affected by the loss of this advantage is emergency

public service announcements.         Healey testified that other means

were available to satisfy this need.           Signs posted by NJDOT on

I-287 were used to provide Amber alerts and Silver alerts; the

Township has a "reverse 9-1-1" calling system and a system for

sending "email blasts" to residents when necessary.

    The means identified by Healey may reasonably be viewed as

comparable to that provided by digital billboards in providing

public service information on an emergent basis.                And, because

the audience who can receive communications through the proposed

digital billboard is limited to motorists on a limited stretch

of I-287, the alternative means are clearly superior in terms of

their   ability   to   reach    the   residents    of   the   Township.       We

therefore   conclude         that   "ample   alternative      channels      for

communication     of   the   information"    are   left   available   by    the

Ordinance, satisfying the third prong of the Ward test.

    Reversed.




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