CHELSEA NEIGHBORHOOD ASSOCIATION v. THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF ATLANTIC CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3282-04T3

CHELSEA NEIGHBORHOOD ASSOCIATION,

Plaintiff-Appellant,

v.

THE ZONING BOARD OF ADJUSTMENT OF

THE CITY OF ATLANTIC CITY AND

KEYSTONE OUTDOOR ADVERTISING

COMPANY, INC.,

Defendants-Respondents.

___________________________________

 

Submitted October 12, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. L-1760-04.

Michael D. Carroll, attorney for appellant.

John C. Matthews, attorney for respondent

Zoning Board of Adjustment of the City of

Atlantic City.

Cooper Levenson April Niedelman & Wagenheim,

attorneys for respondent Keystone Outdoor

Advertising Company, Inc. (Howard E. Drucks,

on the brief).

PER CURIAM

Plaintiff Chelsea Neighborhood Association appeals from a trial court order dismissing its complaint in lieu of prerogative writs that had challenged a resolution of defendant Zoning Board of Adjustment of Atlantic City granting preliminary and final site plan approval, a conditional use permit and three "d" variances to defendant Keystone Outdoor Advertising Company, Inc. for the construction of a free-standing, double-sided billboard. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On November 25, 2003, Keystone filed an application with the Zoning Board in connection with its proposal to construct a double-sided billboard measuring twenty feet by fifty feet at 2243-2245 Arctic Avenue. Under Keystone's proposal, one side of the billboard was to face an exit ramp from the Atlantic City Expressway, the other, a residential neighborhood in a section of Atlantic City known as Ducktown. Keystone's proposal required several variances in light of the fact that the size of the proposed billboard was significantly larger than the City's zoning code would permit. In addition, the zoning code did not permit advertising signage within one hundred feet of a residential district.

Keystone had agreed that the side of the billboard facing away from the Expressway would be reserved for material of interest to the Ducktown neighborhood and, further, that it would not be illuminated. It had also agreed that the lights used on the Expressway side of the sign would be angled in such a way that there would be no reflective glare onto the surrounding neighborhood. The Ducktown Revitalization Association supported Keystone's application, and the Association's president, Frank Formica, testified in favor of the application before the Board.

After the Board adopted its resolution approving this application, plaintiff filed its complaint in lieu of prerogative writs. In its complaint, plaintiff styled itself as "an Atlantic City based community organization comprised of residents of the City of Atlantic City, dedicated to the betterment of Atlantic City." Although membership in plaintiff Chelsea Neighborhood Association is not restricted to individuals who reside within the area of Atlantic City denominated as Chelsea, none of its members reside within the area denominated as Ducktown.

At the hearing before the trial court, defendants asserted both that plaintiff lacked standing to challenge the Board's decision and that the Board's approval was correctly given. The trial court found for defendants on both grounds, and plaintiff appealed. We find it unnecessary to address plaintiff's contention that the Board's action was arbitrary, capricious and unreasonable because we are satisfied the trial court correctly determined that plaintiff lacked standing in this matter.

The Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163, provides that an interested party may appeal a final decision of a zoning board of adjustment. N.J.S.A. 40:55D-17. The MLUL defines an interested party as:

[A]ny person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under this act or whose rights to use, acquire or enjoy property under this act, or under any other law of this State or of the United States have been denied, violated, or infringed by an action or failure to act under the act.

[N.J.S.A. 40:55D-4.]

The definition of "interested party" has been broadly construed. DePetro v. Twp. of Wayne Plan. Bd., 367 N.J. Super. 161, 172 (App. Div.), certif. denied, 181 N.J. 544 (2004) (holding that potential economic impact may be sufficient to confer standing). That approval of a land use application may result in an increase in competition, however, is not sufficient to confer standing upon a potential objector. Car Spa, Inc. v. High Tech. of S & C, 267 N.J. Super. 422 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994); Cronin v. Twp. Comm. of Chesterfield Twp., 239 N.J. Super. 611 (App. Div. 1990); Paramus Multiplex Corp. v. Hartz Mountain Indus., Inc., 236 N.J. Super. 104 (Law Div. 1987). Civic associations are not, per se, devoid of standing. Livingston Builders v. Twp. of Livingston, 309 N.J. Super. 370 (App. Div. 1998) (noting the participation of Chestnut Hill Civic Association in a hearing on a proposed settlement of Mount Laurel litigation; membership of the association was composed of individuals who lived in the vicinity of the affected property).

Having reviewed this record, we concur with the assessment of the trial court that plaintiff does not have any greater stake in the outcome of these proceedings than does the general public. Plaintiff's membership consists of individuals who reside in sections of Atlantic City that are virtually unaffected by Keystone's proposal.

Further, plaintiff could not articulate at the hearing before the trial court any specific deficiencies in Keystone's application and the Board's approval. Indeed, at oral argument before the trial court, it framed its position as "more of a philosophical one." A mere "philosophical" disagreement over whether a particular land use application should be granted or denied is insufficient as a matter of law to confer standing

upon a potential challenger. The order under review is affirmed.

 

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A-3282-04T3

November 4, 2005