MATT OUTDOOR v. UPPER SADDLE RIVER BOARD OF ADJUSTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1991-05T51991-05T5

MATT OUTDOOR,

Plaintiff-Appellant,

v.

UPPER SADDLE RIVER BOARD OF

ADJUSTMENT and BOROUGH OF

UPPER SADDLE RIVER,

Defendants-Respondents.

____________________________________________________

 

Argued October 12, 2006 - Decided November 6, 2006

Before Judges Wefing, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-6908-03.

Paul Kaufman argued the cause for appellant (Kaufman, Bern & Deutsch, attorneys; Mr. Kaufman, of counsel; Mr. Kaufman and Marilyn Gittleman, on the brief).

Gerald R. Salerno argued the cause for respondent Upper Saddle River Board of Adjustment (Aronsohn, Weiner & Salerno, attorneys; Mr. Salerno, on the brief).

Robert T. Regan argued the cause for respondent Borough of Upper Saddle River.

PER CURIAM

The Upper Saddle River Board of Adjustment denied plaintiff Matt Outdoor's application for the approvals it required to erect a billboard on a 0.54 acre triangular shaped lot on Route 17 in the Borough's highway retail and commercial district. Because the Borough's zoning ordinance at the time prohibited billboards, plaintiff initially sought a use variance. When that application was denied, plaintiff filed this action in lieu of prerogative writs.

While this suit was pending, the Borough amended its ordinance, rendering billboards a conditional use in the highway retail and commercial district. That amendment warranted a remand to the board of adjustment for reconsideration.

The board of adjustment thereafter denied the application for a conditional use variance, causing plaintiff's filing of an amended complaint, which alleged that the amended ordinance was impermissibly vague and unconstitutional. By way of a written decision, Judge Menealos W. Toskos upheld the board's denial of the variance; he also upheld all but two of the conditions set forth in the amended ordinance.

We affirm substantially for the reasons set forth in Judge Toskos's thoughtful and comprehensive written opinion, adding only the following comments.

When a local zoning law infringes on a protected fundamental right such as free speech "it must be narrowly drawn and must further a sufficiently substantial governmental interest." Schad v. Bor. of Mt. Ephraim, 452 U.S. 61, 68, 101 S. Ct. 2176, 2182, 68 L. Ed. 2d 671, 680 (1981). This test requires that a reviewing court assess "the substantiality of the governmental interests asserted" and consider whether those interests "could be served by means that would be less intrusive on free speech." Bell v. Twp. of Stafford, 110 N.J. 384, 391-92 (1988). In Bell, the Court held that "preserving aesthetics" and "promoting traffic safety" are legitimate governmental interests that would permit a municipality to tailor the use of billboards within its borders. Id. at 396. As Judge Toskos recognized, the amended ordinance by no means intends or has the effect of excluding billboards from the municipality, as was the chief concern in cases such as Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981) and Bell v. Tp. of Stafford, supra, but instead has as its aim the regulating of billboards so as to serve the legitimate governmental purposes of preserving neighborhood aesthetics and vindicating traffic safety concerns. As the judge observed, the amended ordinance is content-neutral and the restrictions it imposes on billboards in the municipality are narrowly tailored in order to satisfy these governmental concerns without infringing free speech and expression rights. The amended ordinance's regulation of the physical character of billboards, as Judge Toskos correctly held, presents only an incidental burden on speech.

Affirmed.

 

There are two buildings on the lot: a one-story building and a 625 square foot garage, which are used by an auto body retail store.

The amended ordinance declares that billboards "shall be permitted as a conditional use" in the highway retail and commercial district subject to the following requirements:

(1) The minimum lot area of the parcel proposed for the placement of a billboard shall be two (2) acres.

(2) The parcel shall have direct frontage on New Jersey State Highway Route 17.

(3) The minimum setback of the billboard from any property line or right-of-way line shall be a distance equal to the proposed height of the billboard.

(4) The maximum sign face of a billboard shall be five hundred (500) square feet.

(5) The base and support structure of the billboard shall be of a color that is compatible with the immediate area so as to make the structure as unobtrusive as possible.

(6) Lighting for the billboard shall be designed to minimize impacts to the surrounding area.

(7) The maximum permitted height of a billboard shall be fifty (50) feet.

(8) There shall be no more than one (1) billboard on a parcel, provided, however, that the billboard may be double-faced.

Judge Toskos determined that conditions (5) and (6) were not sufficiently "certain" or "definite" and concluded that they did not conform with N.J.S.A. 40:55D-67(a) and were invalid.

(continued)

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5

A-1991-05T5

November 6, 2006