UNITED ADVERTISING CORPORATION, PLAINTIFF-APPELLANT, v. BOROUGH OF METUCHEN AND IRVING T. WOERNER, BUILDING AND ZONING INSPECTOR, DEFENDANTS-RESPONDENTS, 42 N.J. 1

The opinion of the court was delivered Per Curiam. This ease involves the validity of a provision of a zoning ordinance prohibiting out door advertising signs other than those related to a business conducted on the premises. Off-premise signs are prohibited throughout the municipality. Plaintiff sought to erect one such sign in a business district and another in a manufacturing district. Defendant obtained

summary judgment on motion. We reversed, holding that plaintiff was entitled to adduce facts in support of its constitutional challenges. United Advertising Corp. v. Borough of Metuchen, 35 N. J. 193 (1961). The case was thereafter tried and judgment again rendered in favor of defendant. We certified plaintiff’s appeal before the Appellate Division heard it. Plaintiff wishes to erect billboards 12 feet in height by 25 feet in width. These are standard dimensions for billboards throughout the country.

Plaintiff concedes its billboards do not belong in residential or scenic areas, but its business being lawful, it claims it should be permitted to operate among other businesses and in industrial districts as well. Plaintiff’s position was rejected in United Advertising Corp. v. Borough of Raritan, 11 N. J. 144 (1952), where the Court refused to strike down an ordinance barring off-premise signs throughout the municipality.

Plaintiff contends that case was wrongly decided because the evils once thought to abound in this setting were unreal or had been eliminated by the time of that decision and in truth no zoning purpose remained to be furthered by the ban. Further, plaintiff urges the discrimination between off-premise and on-premise signs violates the mandate of N. J. S. A. 40:55-31 that “All such regulations shall be uniform for each class or kind of buildings or other structures or uses of land throughout each district * * As to the first proposition, plaintiff starts with an analysis of Thomas Cusack Co. v.

City of Chicago, 242 U. S. 526, 37 S. Ct. 190, 61 L. Ed. 472 (1917), one of the cases cited in the Raritan opinion. Cusaclc did not involve a zoning ordinance. Rather the ordinance was addressed to the special evils then charged to billboards. They included the accumulation of offensive materials and rubbish, and the shield afforded for immoral practices and for loiterers and criminals. As to such matters, plaintiff says that today billboards are so constructed, positioned and maintained that these ills no longer exist.

In other words, plaintiff says that proper regulation will suffice and enforcement is not so burdensome that prohibition is warranted.

With respect to whether billboards create traffic hazards, a topic which came to the scene after Cusaclc, plaintiff says that, as to obstruction of view, appropriate setbacks are sufficient; and as to distraction of the motorist, plaintiff claims the billboard, although designed to attract, presents no hazard because a driver’s peripheral vision will embrace the roadway while he looks left or right to read the advertisement, and in fact such momentary diversions prevent road hypnosis and thus mean safer driving.

Expert testimony was offered to maintain the last proposition, and the trial court was persuaded by it. We have some reservations as to whether billboards would not be a hazard in heavy traffic where a driver has quite enough to do to watch for sudden movements of men and machines. At any rate, for present purposes we accept the trial court’s agreement with that testimony. That the evils which prompted earlier legislation may be gone or be well in hand does not end the inquiry, for new circumstances generate new problems.

Since the time Cusaclc was decided, it has been universally recognized that the growth in population, in commerce, in industry, and in land utilization call for order in land uses, to preserve human values and to conserve property values. Hence our zoning statute authorizes ordinances to achieve aims made necessary by the new scene and expressed in R.

S. 40:55-32: “Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general tvelfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population.

Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.” We have italicized the portion which we think here pertinent. As we have said, plaintiff concedes a billboard does not belong in a residential area or in places of scenic beauty. The concession is put in terms that billboards are a business use and hence may be barred wherever business does not belong.

We think the concession is correct, not merely because billboards are a business use, but because they would clash with those settings whether they solicited an interest in toothpaste or in some charitable cause. Much is said about zoning for aesthetics. If what is meant thereby is zoning for aesthetics as an end in itself, the issue may be said to be unexplored in our State, but if the question is whether aesthetics may play a

part in a zoning judgment, the subject is hardly new. There are areas in which aesthetics and economics coalesce, areas in which a discordant sight is as hard an economic fact as an annoying odor or sound. We refer not to some sensitive or exquisite preference but to concepts of congruity held so widely that they are inseparable from the enjoyment and hence the value of property.

Even the basic separation of industrial from commercial from residential, although obviously related to so much of the quoted statute as speaks of health and hazard, rests also on the aesthetic impact of uses upon the value of properties. Surely no one would say today that an industrial structure must be permitted in a residential district upon a showing that the operation to be conducted therein involves no significant congestion in the streets, or danger of fire or panic, or impediment of light and air, or overcrowding of land, or undue concentration of population.

So also the recognition of different residential districts, with varying lot sizes, setbacks, and the like, rests upon the proposition that aesthetics should not be ignored when one seeks to promote “the general welfare,” as the statute says, “with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.” Our cases deem aesthetics to be relevant when they bear in a substantial way upon land utilization. Vickers v. Township Committee of Gloucester Tp., 37 N. J. 232, 247-248 (1962); Napierkowski v. Gloucester Tp., 29 N. J. 481, 494 (1959); Pierro v.

Baxendale, 20 N. J. 17, 27-30 (1955). Accordingly we are not persuaded that Raritan should be discarded on the thesis that it relied upon evils no longer pervasive. The aesthetic impact of billboards is an economic fact which may bear heavily upon the enjoyment and value of property. It is a relevant zoning consideration. See Moore, “Regulation of Outdoor Advertising for Aesthetic Purposes,” 8 St. Louis L. J. 191 (1963); “Zoning, Aesthetics, and the First Amendment,” 64 Colum. L. Rev. 81 (1964).

This brings us to the charge that the ordinance, in barring off-premise signs while permitting on-premise signs, violates N. J. S. A. 40:55-31, which provides in part that “All such regulations shall be uniform for each class or kind of buildings or other structures or uses of land throughout each district * * *.” This issue of classification is in substance the same issue projected by plaintiff in Raritan and there decided against it, notwithstanding that here the stress is more upon the statute than upon constitutional provisions barring unequal treatment.

The zoning statute relates to the uses of structures as well as to their nature, and the

section upon which plaintiff relies must be read in that light. N. J. S. A. 40:55-30 provides that zoning ordinances may regulate “buildings and structures according to their construction, and the nature and extent of their use * * A structure or use may be permitted if it is merely ancillary or incidental to a permitted principal use and still be barred if it is a separate, independent use. Here, the on-premise sign is a mere adjunct to a permitted business or industrial use, whereas the off-premise sign would be a separate, independent business effort. Hence it proves nothing to say that a sign is a sign.

There are obvious differences between an on-premise sign and an off-premise sign. Even if the baleful effect of both be in fact the same, still in one case the sign may be found tolerable because of its contribution to the business or enterprise on the premises. The hurt is thus supported by a need or gain not present in the case of the off-premise sign. This difference, it seems to us, suffices to support the classification.

And the classification is not impaired by the fact that the ordinance before us, if exploited relentlessly according to its literal terms, would permit on-premise signs with a total square footage in excess of that of the standard billboard. It would still be true that the permitted signs advance the business or industry on hand while an off-premise sign does not. Moreover, the sensibilities of neighbors and customers may offer a restraint which the off-premise advertiser would not feel.

Still further, if experience should show that the maximum limitations upon size were ill-conceived, there is probably power to revise the ordinance and to compel compliance by existing on-premise signs whereas an off-premise sign, as part of separate business activity, might be claimed to be a nonconforming use, as Raritan suggested, and for that reason impervious to corrective measures. Einally, if the total impact of on-premise signs should prove to be too much, surely too much is enough. For all of these reasons we adhere to Raritan. Cf. Metromedia, Inc. v. City of Pasadena, 30 Cal. Rptr. 731 (D. Ct.

App. 1963), appeal dismissed for want of a substantial federal question, 84 S. Ct. 636 (1964). We find Raritan is appropriate here. Metuchen is a small municipality, covering 2.9 square miles, with a population of 14,000. Its essential character is residential. Its business and industrial areas are relatively limited and the municipal aim is to achieve the maximum degree of compatibility with the residential areas. The most that can be said with respect to the proof is that reasonable men can disagree as to whether the addition of off-premise signs would disserve the general welfare.

Such policy questions are committed to the judgment of the local legislative bodies. As we have said so many times with respect to zoning and other legislative or gwasi-legislative decisions, a judge may not interfere merely because he would have made a different policy decision if the power to decide had been his. A court can concern itself only with an abuse of delegated legislative power, and may set aside the legislative judgment only if arbitrariness clearly appears. Plaintiff has not sustained its burden. We think it unnecessary to discuss the other points raised. The judgment is affirmed.