CLAYTON HOLDING COMPANY v. BOARD OF ADJUSTMENT TOWNSHIP OF UNION et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5430-04T55430-04T5

CLAYTON HOLDING COMPANY,

Plaintiff-Respondent,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF UNION and COASTAL

OUTDOOR ADVERTISING, INC.,

Defendants-Appellants.

 

Argued: April 24, 2006 - Decided June 13, 2006

Before Judges Fall, Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Number UNN-L-2334-04.

John T. Whipple argued the cause for appellant Coastal Outdoor Advertising, Inc. (Pashman Stein, attorneys; Mr. Whipple and Adam Lamparello, on the brief).

Robert J. Pansulla argued the cause for appellant Board of Adjustment of the Township of Union (Gaccione, Pomaco & Malanga, attorneys; relying on the brief filed by appellant Coastal Outdoor Advertising, Inc.).

Aldan O. Markson argued the cause for respondent (Schwartz Barkin & Mitchell, attorneys; Mr. Markson, of counsel, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, defendant Coastal Outdoor Advertising, Inc. appeals from an order for judgment entered in the Law Division on June 14, 2005, in favor of plaintiff Clayton Holding Company, finding that defendant Board of Adjustment of the Township of Union had acted in an arbitrary and capricious manner by granting Coastal's variance and site plan applications for placement of a billboard on property known as 2 540 Route 22 in Union Township on June 16, 2004. The Board joins in Coastal's appeal. We entered an order on June 22, 2005, permitting Coastal to maintain the billboard, without any advertising messages, pending this appeal. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

In May 2004, Coastal, as lessee of property commonly known as 2 540 Route 22, Union Township, also known as Block 3406, Lot 7 as shown on the Union Township Tax Map, applied to the Board of Adjustment for four variances from the provisions of the Township's Land Development Ordinance and for site-plan approval so as to permit the installation and maintenance of a 14-foot by 48-foot, double-faced billboard intended to carry off-site advertising.

The application required the following four variances as determined by the municipal construction official:

1. A height variance pursuant to N.J.S.A. 40:55D-70(d)(6) as the proposed billboard height was 60 feet as opposed to the 35 feet permitted under the Ordinance;

2. A bulk variance pursuant to N.J.S.A. 40:55D-70(c)(2) to permit a billboard of 672 square feet in area whereas 120 square feet is permitted;

3. A bulk variance permitting a 48-foot wide billboard whereas 12 feet in width is permitted; and

4. A variance from the requirement that a billboard be located at least 1,000 feet from another billboard, with a separation distance of 349 feet between billboards proposed.

The subject property consists of an irregularly shaped lot located in the center island of U.S. Highway Route 22 in Union Township; the island separates the eastbound lanes from the westbound lanes. The property has an area of 23,615 square feet, while the zoning ordinance requires a minimum lot area of 40,000 square feet. The property has a width of 78.87 feet, while the zoning ordinance requires a minimum width of 200 feet. The property is improved with a one-story building, twenty-five feet in height, which is occupied by two retail stores. The property has a building coverage area of 33%, while the zoning ordinance permits no more than 30% lot coverage. The property also has an impervious lot coverage of 85%, while the zoning ordinance permits no more than 80%.

A parking lot for employees and customers of the two retail stores is located on the north side of the property. On the southwesterly side is a paved area used by the stores for the loading and unloading of merchandise and supplies. On the south side of the property is a relatively small area serving as a water detention basin. It is in that area that Coastal intended to install its billboard.

Another billboard is located within 349 feet of the proposed billboard, on a small lot adjacent to plaintiff's property in the center island of Route 22, just east of the subject property. That billboard faces in only one direction (west), and conforms to the height limitation of the zoning ordinance.

Section 170-2 of the Land Development Ordinance of the Township of Union adopts, by reference, the purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to-129, as set forth in N.J.S.A. 40:55D-2. Among those purposes are the promotion of a desirable visual environment and the prevention of the degradation of the environment through improper use of the land. N.J.S.A. 40:55D-2(i), -2(j).

The Ordinance extensively regulates advertising signs in 170-152. Except for billboards, it prohibits any signage which does not advertise a permitted business or use conducted on the same premises ("on-premises signs"). Under 170-154, in the business district on-premises signs may be free-standing or attached to the building. Under 170-152(V), no on-premises sign may exceed fifty square feet of face area. Section 170-5B of the Ordinance defines a billboard as "a panel supported by uprights or braces placed in the ground designed to carry off-site advertising." In addition to area differences, the height, bulk and density limitations that govern billboards and on-premises signs are substantially different. Differential treatment for such advertising has been held to be reasonable and valid because on-premise signs are seen as a necessary evil by reason of their contribution to the business, while billboards are seen as unnecessary from an aesthetic standpoint. See United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 7-9 (1964).

The Ordinance contains numerous provisions applicable to both billboards and on-premises signs. Section 170-152 provides that "[n]o sign of any type shall be permitted to obstruct driving vision, traffic signals, traffic directional and identification signs, other places of business, other signs or windows of the building on which they are located."

On May 19, 2004, the Zoning Board conducted a hearing on Coastal's application. Coastal presented testimony from two witnesses: John Varys, Coastal's Vice President of Development; and Alex J. Zepponi, a professional planner and engineer, who acted as Coastal's expert witness. In addition, the owners of the two immediately adjoining commercial properties on the Route 22 island, Clayton and Rudy Cammorata, appeared in opposition to Coastal's application.

After considering the testimony and evidence concerning Coastal's application, the Board voted unanimously to grant approval. On June 16, 2004, the Board passed a resolution approving the application. The resolution contained the following findings and conclusions, in pertinent part:

8. The nearest residence to this location is in Springfield, and those residents would not be able to see the proposed sign. Consistent with the requirement of the Ordinance, any wording on the proposed structure will not be visible by any Union residents from their homes. In fact, the structure itself should not be visible from any Union residence.

* * * *

10. The Board hereby finds that the applicant has satisfied the criteria for the relief requested. The Board notes that, with respect to the height variance, the burden on the applicant is different than the burden for a use variance and that the legal standard is more akin to the standard of review for a conditional use variance; that is, whether the site continues to be suitable for the use notwithstanding the deviation from the bulk requirements from which the applicant seeks relief. At the permitted height, the site would not be suitable for an outdoor advertising use because part of the view of the billboard would be blocked by the existing structure and the billboard would interfere with visibility of other signs. The increased height proposed will thus reduce the impact on neighboring properties, not increase them. There will be no substantial impact on surrounding properties or the community in general from the increase in height proposed, as limited by the Board. There will be no impairment of the intent or purpose of the zone plan because there will be no impact on residential areas and the visibility of other businesses and signs in the area will be maintained.

11. With respect to the bulk variances, the Board also finds that the applicant has met its burden. The benefits permitting the increased size, in this particular location and under these particular circumstances, as set forth above, outweigh any detriments from granting the relief requested. There will be no negative impact on adjacent businesses in terms of visibility of the buildings or the signs and the new structure will not be visible from any residential areas. The Board hereby finds that, with respect to the variance for the distance from existing billboards, the existing signs on the Goodyear property have a clear view to motorists because the billboards are close to the ground. The Board hereby finds that the intent of this portion of the Ordinance was to avoid the clutter of billboards close together, which is not the case here.

On June 28, 2004, Clayton filed a complaint in lieu of prerogative writs against Coastal and the Board, challenging the approval of the application on the grounds that the Board "abused its discretionary authority in that the action taken was arbitrary, capricious, unreasonable, unlawful, legally and factually unjustified and otherwise wrongful." On May 19, 2005, a hearing was conducted in the Law Division before Judge Walter R. Barisonek concerning the allegations contained in Clayton's complaint.

On June 9, 2005, the judge delivered an oral decision, ruling that the Board had acted arbitrarily and capriciously when it granted Coastal the requested variances. The judge entered an order for judgment on June 14, 2005, reversing and setting aside the decision of the Board. The judgment was temporarily stayed pending the filing of an appeal.

In rendering his decision, the judge first noted that the photographs provided to the Board did not support Coastal's contention that the area surrounding the subject property was completely commercial/industrial in nature. The judge stated that only one of the provided photos depicted an honest perspective as to the actual location of the billboard and the affect it may have upon other businesses or signs.

The judge also rejected the conclusion of Varys and Zepponi that clutter was the predominant reason for permitting the enhanced height of the proposed billboard, finding that "there is no more clutter demonstrated as to this particular sign and location than any other signs in the area which were installed as on-premise signs or as billboard signs." The judge concluded that "the size of this particular sign relates to the needs of the defendant, as testified, to have a bigger and better sign so as to generate more income because of that sign's enhanced visibility[,]" explaining:

The real reason, I find, for the height is for the profit margin of Coastal. . . . [F]acing westbound there are no obstacles whatsoever, the back side meaning the eastbound side deals with a clutter issue. He defines clutter issue as telephone poles and things of that nature which I have already said is exactly the same type of items that have been located there for years and which obviously do not affect . . . the other signs that are located in that area. . . .

* * * *

. . . I find that what [Varys] really means is if we lower . . . the sign and make is smaller in conformity with other existing signs we'll not make as much money from the advertisers.

In addressing the board's resolution, the judge stated:

I note in the board's resolution, specifically number nine, they vaguely refer to the objector's testimony but the board does not pass upon the credibility of that witness, but simply echoes what the defendant's witnesses testified to, that because the proposed billboard is higher than the other signs, it will be more readable. The board says, in number ten of the resolution, that if the billboard were lowered it would block the visibility of other signs, thus implying, at least, that the billboard must be higher and then if you accept the testimony of the witnesses of the defendant Coastal, since it's higher, it has to be bigger so that it becomes more visible.

First of all, it doesn't block other signs as I have already found. There is no way it will block other signs if it is even lowered. The photos show this is not possible based on the location of the Coastal sign and its placement. The sign -- again in photos A and B and of A-6, show that if the sign is lowered, it will not block visibility of any other sign. What the Board failed to recognize is that this billboard does not have to be the square feet that the defendant asks. The board seems to just accept that this size is an industry standard without taking into consideration the size that the governing body sets forth in the ordinance. They also, because of their incorrect finding, failed to address that the defendant Coastal can make the square footage of this sign smaller and be much closer to height and size requirements of the ordinances and still be above the building height. This, however, is not even addressed by the Board.

* * *

. . . I find one purpose of the ordinance as drawn by the governing body is to keep both billboard signs as well as on-premises signs uniform and proportionate. The board I find failed to recognize this and that a sign of this height and size would, as a detriment, violate the purpose of this ordinance. It would open the door to bigger and higher signs in contravention of the governing body's ordinance and the intention of that ordinance and potentially cause a domino effect.

The judge went on to conclude that the purposes of the Ordinance include aesthetics and the maintenance of proportionality and uniformity between billboards and on-premises signs. He found that neither Coastal nor the Board addressed these purposes. He also stated that Coastal had failed to submit evidence establishing either the positive or negative criteria for permitting the billboard to be located within 1,000 feet of another billboard, or to be fifteen feet higher than permitted by the zoning ordinance. The judge also found that the purposes behind the higher and larger sign would not serve the community or advance the purposes of the Municipal Land Use Law, but rather that they would serve to advance Coastal's economic interests.

Based on the foregoing, Judge Barisonek concluded:

Having addressed these issues on the record, there is no basis for me to remand to the board since there is no special reason upon which I can find to grant the variance and in fact there will be substantial detriment, as I delineated in my findings, to show that this variance in fact should have been denied.

* * *

The Board failed to properly balance the special reasons as against the negative impacts and purposes of the ordinance. I find, therefore, that both for the reasons discussed in the C variance application as well as the reasons expressed in the d(6) variance application, that the board was arbitrary and capricious, and the variance applications should have been denied, and I am reversing the decision of the Board both as to the C variance as well as the d(6) variance.

On appeal, Coastal and the Board argue that the trial court erred because the Board's decision was amply supported by the testimonial and documentary evidence in the record. After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by Coastal and the Board are without merit, and we affirm substantially for the reasons articulated by Judge Barisonek in his thorough and comprehensive oral opinion delivered on June 9, 2005. We add the following.

We recognize that when reviewing a decision of a municipal board, a court's power is tightly circumscribed. New Brunswick Cellular Tel. Co. v. Old Bridge Planning Bd., 270 N.J. Super. 112, 134 (1993). Board decisions that are factually grounded are cloaked with a presumption of validity, which presumption attaches to both the acts and motives of its members. New Brunswick Cellular Tel. Co. v. The Twp. of Edison Zoning Bd. of Adjustment, 300 N.J. Super. 456, 464 (Law Div. 1997).

"The rationale of the statutory scheme is that the board of adjustment shall supply expert discretion to the matters coming within its cognizance, and judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of the delegated discretion." Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 423 (1952). The trial court may not "exercise anew the jurisdiction of the administrative agency and merely substitute its own independent judgment for that of the body entrusted by the Legislature with the administrative function." Ibid. When a board grants a variance, however, the deference to which it is entitled is less than when it denies a variance. Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999). "It is self-evident that the greater the disparity between the variance granted and the ordinance's restriction, the more compelling and specific the proofs must be that the grant of the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance." North Bergen Action Group v. North Bergen Twp. Planning Bd., 122 N.J. 567, 578 (1991).

In addition, the court's authority and duty to review the record before the board in order to determine whether the board's decision was adequately supported by the evidence of record is not limited by the arbitrary or capricious standard. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999). See also Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (stating that there must be "adequate evidence" in the record supporting the board's determination); Pullen v. Township. of S. Plainfield, 291 N.J. Super. 303, 312 (App. Div. 1995) (holding that there must be "substantial evidence" of both the positive and negative criteria before the board).

A zoning board is also not entitled to any deference when it interprets a municipal zoning ordinance because such interpretation resolves a question of law which may then be judicially determined de novo. Adams v. Delmonte, 309 N.J. Super. 572, 583 (App. Div. 1998). Accordingly, where a court concludes that a board has granted a variance based on an erroneous interpretation of the applicable zoning ordinance, reversal is the proper action. Grancagnola v. Planning Bd., 221 N.J. Super. 71, 75-77 (App. Div. 1987); Acorn Montessori School v. Bethlehem Twp. Planning Bd., 380 N.J. Super. 216, 228 (Law Div. 2005).

Here, Judge Barisonek properly reviewed the record of the Board's proceedings and applied these standards in finding that the conclusions of the Board were not supported by sufficient evidence and that the billboard, as proposed, was inconsistent with the character of the neighborhood and with the intent of the standards contained in the Ordinance to limit signage in the business zone to certain dimensions and density.

Setting aside the issue of the 1,000-foot distance requirement, there was no evidence before the Board that a billboard conforming to the standards in the Ordinance could not have been readily visible to eastbound traffic.

Coastal argues that the Board properly granted the variances because the height of the billboard contributes to the purpose of the ordinance to ensure that billboards remain visible without contributing to "clutter" by ensuring that its billboard not obstruct other signage. Thereby, Coastal asserts that had the billboard comported with the requirements of the Ordinance, such adherence would have resulted in the very adverse effects that the zone plan sought to avoid.

However, as the judge noted, that is an unduly narrow interpretation of the Ordinance. The billboard standards were not simply intended to preclude obstruction of other signs. Clearly, those standards were designed to prevent the placement of large highway billboards in the business district, to maintain proportionality and uniformity between billboards, and to limit the density of conforming billboards to one every 1,000 feet to ensure that they do not interfere with on-premises signage for businesses located along Route 22. Moreover, as Judge Barisonek aptly observed, there is no basis in the record supporting the Board's conclusion that a conforming sign would block other signage. "Height restrictions, like restrictions on density, bulk or building size, can also be a technique for limiting the intensity of the property's use." Grasso . Borough of Spring Lake Heights, 375 N.J. Super. 41, 53 (App. Div. 2004). Here, Coastal failed to demonstrate that the proposed billboard would not offend the purposes of the height limitation, the other billboard standards contained in the Ordinance, or the intent and purposes of the zone plan. See also New Brunswick Cellular Tel. Co. v. Borough of South Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999) (noting that an applicant must demonstrate not only that the variance can be granted without substantial detriment to the public good but, through an enhanced quality of proof, that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance). In light of our determination, our June 22, 2005 order is vacated.

Affirmed.

 

At the hearing before the Board, the requested billboard height was reduced to 50 feet.

(continued)

(continued)

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A-5430-04T5

June 13, 2006