PASSFIELD PROPERTIES v. TOWNSHIP OF WEST CALDWELL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1306-05T51306-05T5

PASSFIELD PROPERTIES, a

Partnership in the State of

New Jersey,

Plaintiff-Appellant,

vs.

TOWNSHIP OF WEST CALDWELL

and PLANNING BOARD OF

WEST CALDWELL,

Defendants-Respondents.

___________________________________________________________

 

Submitted October 25, 2006- Decided December 26, 2006

Before Judges Collester and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5752-04.

James V. Segreto, attorney for appellant.

Porzio, Bromberg, & Newman, attorneys for respondents (Peter Lambrianakos, of counsel and on the brief).

PER CURIAM

Plaintiff, Passfield Properties (Passfield), appeals from the grant of summary judgment in favor of defendants, Township of West Caldwell and the Planning Board of West Caldwell (collectively, the Board). After careful consideration of the arguments raised, we affirm.

Passfield owns West Caldwell Plaza, a shopping center in West Caldwell, in which it leases various premises to a variety of commercial tenants. One of Passfield's tenants applied for approval of an outdoor storefront sign from the Board's Sign Committee. Pursuant to the terms of West Caldwell's Zoning Ordinance (Ordinance), each of the municipality's commercial shopping centers was required to have signage that was uniform in color. The application was denied because the color of the proposed sign was not permitted at West Caldwell Plaza.

Passfield filed a complaint in lieu of prerogative writs seeking to invalidate the signage provisions of the Ordinance and the Shopping Center Sign Standards (the Standards) promulgated by the Board arguing they violated the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. The Board initially moved to dismiss Passfield's complaint for failure to state a claim. R. 4:6-2e. In opposition to the motion, Passfield filed the certification of Frank Melito (Melito), a professional planner and licensed architect, as an expert in the MLUL. Melito opined that the Ordinance violated the MLUL because it required different colors for commercial signs in the different shopping centers. As such, he contended the Ordinance violated N.J.S.A. 40:55D-62a which provides,

The zoning ordinance shall be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land. The regulations in the zoning ordinance shall be uniform throughout each district for each class or kind of buildings or other structure or uses of land . . . but the regulations in one district may differ from those in other districts.

(Emphasis added).

After the motion judge denied its motion, the Board filed its answer and discovery ensued.

Thereafter, the Board moved for summary judgment and in support of its motion filed the report of its expert, Paul A. Phillips, a licensed, professional planner. He opined that the Ordinance did not run afoul of the MLUL because any municipality is permitted to create reasonable deviations from the uniformity requirement expressly stated in the statute. Passfield opposed the motion and cross-moved for summary judgment in its favor. In support thereof, it filed another certification from Melito that mirrored his earlier filing and report, and the certification of its owner, Fredric N. Kruvant, in which he certified that several of his tenants wanted to change the color of their commercial signs but were not permitted to do so because the Standards required all signs in West Caldwell Plaza be green. Passfield argued that not only did the Ordinance violate the uniformity requirements of N.J.S.A. 40:55D-62a, but also that the Standards had been improperly promulgated by the Board, not the governing body of West Caldwell, in contravention of the MLUL.

In denying Passfield's cross-motion and granting the Board's motion for summary judgment, the motion judge determined the ordinance did not violate the MLUL's uniformity requirement. Relying primarily on Rumson Estates Inc. v. Mayor of Fair Haven, 177 N.J. 338 (2003), he concluded,

[O]ur Supreme Court has repeatedly held that uniformity does not prohibit classification(s) within a district so long as they are reasonable. . . . Here it is found that the sign standards satisfy the uniformity requirement because they are reasonable and treat similarly situated property alike.

As to Passfield's second argument, that the Board had illegally usurped the governing body's legislative function by promulgating the sign standards, the motion judge concluded,

A review of the (Ordinance) concerning signage . . . reveals the Township has set forth specific standards for signs. Rather than delegating authority to the planning board to legislate zoning standards, the governing body enacted a detailed ordinance . . . . As such, defendants have not violated the M.L.U.L. by delegating its (sic) legislative authority.

He granted summary judgment to the Board and this appeal followed.

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Atlantic Mutual Ins. Co., supra, at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

First, Passfield argues that based upon Melito's report and certifications, and applying the appropriate standards under Brill, supra, the motion judge was faced with conflicting evidence regarding the Ordinance's violation of the MLUL. It argues a plenary hearing was required and summary judgment was inappropriate. We disagree.

Plaintiff relies upon Sartoga v. West Paterson, 346 N.J.Super. 569 (App. Div.), certif. denied, 172 N.J. 357 (2002). In Sartoga, we reversed a grant of summary judgment in favor of the defendant, concluding that material factual disputes existed that required a trial. Id. at 572-73. Individual plaintiffs and the City of Clifton challenged a revision to West Paterson's zoning ordinance that permitted high-density residential development in close proximity to their property and near the municipal boundary with Clifton. Ibid. Plaintiffs' experts opined that the proposed ordinance changes would create potential zoning results incompatible with the purposes of the MLUL. Id. at 573-75.

West Paterson's experts reached opposite conclusions about the effects of the ordinance changes. Id. at 575. In reversing the trial judge, we concluded,

[I]f a party challenging the validity of a zoning ordinance presents evidence that could support a finding that the ordinance violates the principles of sound zoning embodied in the MLUL, an evidentiary hearing must be held to afford both the party challenging the ordinance and the municipality an opportunity to present expert testimony relevant to a determination of its validity.

[Id. at 579.]

See also Hirth v. City of Hoboken, 337 N.J. Super. 149, 166 (App. Div. 2001) (Municipality seeking summary judgment dismissing a complaint challenging the validity of an ordinance must show that no genuine issue of material fact is disputed and it is entitled to judgment as a matter of law).

We have carefully reviewed the certifications and reports of Melito and Phillips and conclude that neither renders an opinion based upon disputed facts or inferences. Rather, each opines simply that the language of the Ordinance either does, or does not, violate the MLUL. Unlike Sartoga, this case presents no factual disputes at all; rather, a purely legal issue was presented and the resolution of that issue is peculiarly within the purview of the court. See Tennis Club Assoc. v. Planning Bd. of Teaneck, 262 N.J. Super. 422, 432 (App. Div. 1993) (purely legal issue as to whether an ordinance violated the MLUL is to be decided by the court); Cherney v. Zoning Bd. of Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987) (interpretation of the ordinance against undisputed facts is a judicial function). Thus, the matter was ripe for summary judgment and no plenary hearing was required.

We next turn to the substance of Passfield's appeal. It argues that the Ordinance violates the uniformity provisions of N.J.S.A. 40:55D-62a because similarly situated properties within the business districts, specifically the shopping centers, are not subject to the same regulation of their signage. Rather, the Standards adopted by the Board's Sign Committee explicitly allowed each shopping center to have different maximum sign heights and colors. For example, the Standards required all signage in West Caldwell Plaza to be "green or equal" and no more than twenty-four inches in height; however, the signage in similarly situated Essex Mall shopping center was required to be "red or equal" and no more than thirty-six inches high.

We begin our consideration of the issue with recognition of some general principles. "A zoning ordinance is insulated from attack by a presumption of validity, which may be overcome by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973)). The party challenging the ordinance bears the burden of overcoming the presumption. Ward v. Twp. of Montgomery, 28 N.J. 529, 539 (1959). "Reviewing courts should not be concerned over the wisdom of an ordinance. If debatable, the ordinance should be upheld." Rumson Estates, Inc., supra, 177 N.J. at 350-51. A difference of opinion as to the impact of a zoning ordinance is insufficient to defeat the presumption of validity. Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 369 (1987). In order to demonstrate the ordinance is arbitrary, capricious and unreasonable, the challenger must prove that its classifications are based upon "no discernible reason" of policy. Ibid. (quoting Roselle v. Wright, 21 N.J. 400, 410 (1956)).

In Rumson Estates Inc., supra, the Court upheld two municipal ordinances against challenges based upon N.J.S.A. 40:55D-62a's uniformity requirements. The Court concluded,

In short, plaintiffs are wrong in their crabbed interpretation of N.J.S.A. 40:55D-62a. Uniformity is not absolute and rational regulations based on different conditions within a zone are permissible so long as similarly situated property is treated the same. Reasonableness of classification is the key. "Constitutional uniformity and equality requires that classification be founded in real and not feigned differences having to do with the purpose for which the classes are formed."

[Id. at 359 (quoting Roselle, supra, 21 N.J. at 410).]

As to both ordinances considered, the Court concluded that each created classifications that were real, not feigned, and they were "reasonably related to the purposes of zoning." Id. at 361.

Applying these standards to this case, it becomes clear that plaintiff has failed to demonstrate that the Ordinance violates N.J.S.A. 40:55D-62a. Section 20-24.4 of the Ordinance, dealing with structures in the B-1 and B-3 Zones, and Section 20-24.5 of the Ordinance, dealing with structures in the B-3 Zone, require uniformity in size and color for signs within shopping centers in those zones. In each instance, the stated purpose of the regulation is to "maintain the attractive uniformity of signage at the township shopping centers."

A valid zoning ordinance must serve one of the purposes of zoning as defined in N.J.S.A. 40:55D-2. Riggs, supra, 109 N.J. at 611. The motion judge concluded that the Ordinance served "to promote a desirable visual environment," and, thus, was reasonably related to at least one of the principles of zoning under the MLUL. N.J.S.A. 40:55D-2i; Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386-87 (1990). He further concluded that the Ordinance did not discriminate by treating similarly situated store owners differently.

We concur with the trial judge's analysis. By requiring all signs within a particular shopping center to have the same restrictions on height and color, the Ordinance seeks to create an "attractive uniformity" that is visually pleasing. By distinguishing among the various shopping centers, and assigning different height and color restrictions to each, the Ordinance seeks to create some level of diversity throughout the district and the municipality and this, too, may serve to "promote a desirable visual environment." N.J.S.A. 40:55D-2i. It is not our "mission" to determine whether the Ordinance creates the "best" classifications "to achieve the stated purposes or that (it) will, in fact, do so." Rumson Estates, Inc., supra, 177 N.J. at 361. Passfield's argument that the Ordinance is arbitrary, capricious, and unreasonable under N.J.S.A. 40:55D-62a must fail.

We turn next to plaintiff's second substantive argument. Passfield contends that the Standards were adopted by the Board's Sign Committee and that this was an ultra vires delegation of legislative duties to the Board. We disagree.

The Ordinance, which was duly adopted by the municipal governing body, sets forth the general standards for signage within the various zoning districts. Specifically, as it applies to West Caldwell Plaza, the Ordinance itself restricts the number of signs, their content, their area, width and length, their placement on the building facades, and the requirement of uniformity of color. In short, all of these specific restrictions are expressly stated in the Ordinance adopted by West Caldwell's governing body and none were delegated at all. The Ordinance defined "a sufficient basic standard -- a definite and certain policy and uniform rule of action -- for the guidance of the agency organized to administer the (Ordinance)." Potts v. Bd. of Adjustment, 133 N.J.L. 230, 235 (Sup. Ct. 1945).

The Ordinance refers to the Board and its Sign Committee the adoption of specific conditions to effectuate the overall restrictions set forth in the Ordinance. Contrary to plaintiff's assertion, the Board is specifically authorized by the MLUL to "perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body . . . ." N.J.S.A. 40:55D-25(b)(3). Furthermore, the MLUL permits the municipal governing body to adopt an ordinance that "provide(s) for the reference of any matter or class of matters to the planning board before final action thereon by a municipal body or municipal officer having final authority thereon, except of any matter under the jurisdiction of the board of adjustment." N.J.S.A. 40:55D-26. Thus, the governing body's decision to refer to the Board the implementation of the Ordinance's signage restrictions did not result in an ultra vires delegation of its legislative function.

To the extent plaintiff's objection rests with the Board's referral to its Sign Committee the task of adopting standards under the ordinance, one commentator has characterized the use of committees by planning boards as follows:

Although not specifically authorized in the statute, planning boards do in fact, use the services of other committees for various purposed, and it is assumed that, so long as the creation of the committee furthers the purposes of the statute, it is within the powers of the board to create such committees.

[Cox, New Jersey Zoning and Land Use Administration, 2-7.9 (c) at 34 (2006).]

Here, the creation of the Sign Committee furthered the legitimate zoning purposes contained in the Ordinance. Plaintiff's contention that the Standards were promulgated by the ultra vires acts of the Board or its committee is without merit.

Affirmed.

 

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A-1306-05T5

December 26, 2006