ELRAY OUTDOOR CORPORATION v. BOARD OF ADJUSTMENT OF THE CITY OF ENGLEWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4627-07T34627-07T3

ELRAY OUTDOOR CORPORATION,

Plaintiff-Appellant,

v.

BOARD OF ADJUSTMENT OF THE

CITY OF ENGLEWOOD and CITY

OF ENGLEWOOD,

Defendants-Respondents.

___________________________________

 

Argued March 25, 2009 - Decided

Before Judges Payne, Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4268-06.

Dean A. Gaver argued the cause for appellant (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Gaver, of counsel; Douglas K. Wolfson and Steven Firkser, on the briefs).

David L. Rutherford argued the cause for respondent The Board of Adjustment of the City of Englewood.

William J. Bailey argued the cause for respondent The City of Englewood (Huntington Bailey, LLP, attorneys; Mr. Bailey, of counsel and on the brief; Darren M. Maloney, on the brief).

PER CURIAM

Plaintiff Elray Outdoor Corporation (Elray) appeals the Law Division's dismissal of its complaint, which challenged (1) the provisions of defendant City of Englewood's (Englewood) zoning ordinance limiting the placement of billboards in Englewood solely to the Office Industrial (OI) zone and then only as a conditional use; and (2) defendant Board of Adjustment's (Board) denial of its application for a use variance for the construction of a billboard at 60 Cedar Lane in Englewood's Light Industrial (LI) zone. We reverse as to the constitutionality of the ordinance, but affirm as to the merits of the Board's decision not to grant a variance.

I.

We glean the following factual and procedural background from the record.

A.

Englewood's zoning ordinance originally prohibited all billboards. In 1995, Gannett Outdoor Co. brought suit challenging the constitutionality of that prohibition, in addition to challenging the Board's denial of its application for a use variance to construct a billboard in the OI zone. The litigation was settled. In 1996, as a result of the settlement, Englewood amended its zoning ordinance to permit billboards in the OI zone, but only as a conditional use.

The relevant conditions of the revised ordinance are as follows:

(i) No more than one (1) off premises advertising structure (double sided) shall be permitted on any lot.

(ii) No part of any off premises advertising sign shall be located within 1,000 feet of a residential district, nor within 1,000 feet of another off premises advertising sign.

(iii) No part of any off premises advertising sign shall be located more than 100 feet from a roadway having a regularly posted speed limit of fifty (50 MPH) miles per hour or more.

(iv) No part of any off premises advertising sign shall be higher above grade of the adjoining roadway than 35 feet.

(v) The sign area shall not exceed 528 square feet, per sign face, nor shall any sign face exceed a vertical dimension of 14 feet nor a horizontal dimension of 44 feet.

According to the enacting resolution, the revised ordinance was the city's attempt to "balance First Amendment guarantees to free speech with legitimate municipal concerns in the area of aesthetics and traffic." Englewood intended to limit billboards to "within 100 fee[t] of Route 4" in order "to preserve the residential qualities of the City of Englewood and to limit the impact of such off-premises advertising signs to a relatively small area of office and industrial uses." There is currently only one billboard located in the OI zone along Route 4. The parties disagree as to whether another billboard can be placed there without receipt of a conditional-use variance from one or more of the conditions noted above.

B.

Elray seeks to place a billboard on property located in Englewood's LI zone, adjacent to Interstate 95 (I-95), motorists on which are the target for the advertising on the proposed billboard. Elray began its efforts to construct the billboard in the LI zone by applying to the New Jersey Department of Transportation (DOT) for an outdoor advertising permit.

DOT is authorized to issue such permits pursuant to the Roadside Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -28. The statute is intended to:

balance the promotion of the safety, convenience and enjoyment of travel on the highways of this State with the protection of the recreational value and public investment therein, to preserve and enhance the natural scenic beauty and aesthetic features of the highways and adjacent areas while promoting development and economic vitality and facilitating the flow of speech and expression, of which providing messages of commercial, public and social value conveyed through the medium of roadside signs and outdoor advertising is an important part.

[N.J.S.A. 27:5-6(a).]

DOT's implementing regulations prohibit signs that interfere with a driver's "ability . . . to have a clear and unobstructed view of streets or highways ahead," N.J.A.C. 16:41C-3.1; that are within 1,000 feet of another sign; or have an advertising area greater than twenty-five feet by sixty feet. N.J.A.C. 16:41C-8.7(b)(3), (4). In addition, such signs must be located in commercial or industrial zones. N.J.S.A. 27:5-11. DOT issued the permit to Elray in September 1996.

In either late 2005 or early 2006, Elray applied to the Board for the use variance at issue in this case. The proposed billboard's height would be eighty-five feet, rather than the maximum thirty-five feet allowed for billboards in the OI zone. The additional height is needed, according to Elray, because the I-95 roadway is elevated and bordered by a sound barrier forty-seven feet high. The billboard would be 640 feet from the closest residential area, rather than the 1,000 feet required for billboards in the OI zone. It would be adjacent to a section of I-95 that has a posted speed limit of forty miles per hour, rather than the fifty miles per hour or more mentioned in the ordinance for the OI zone. Finally, the billboard would be within one-hundred feet of I-95.

The proposed two-sided, V-shaped billboard, measuring twelve feet high by forty-four feet wide, would be mounted on a monopole. The base of the billboard would be twenty feet above the top of the seventeen-foot sound barrier along I-95. It would be located on the north side of the highway, along the westbound lanes.

The Board conducted a hearing on the application in February 2006. At the end of the hearing, members of the Board discussed their opposition to the application, citing particularly the issue of visibility from the residential neighborhood and the lack of "special reasons" that would justify the variance. The Board unanimously denied the application, with one abstention.

In a resolution issued on April 24, 2006, the Board memorialized its decision, in part, as follows:

4. The site is not particularly-suited for the proposed use because it is located in relatively close proximity (640 feet) to residential properties in the [One-Family Residence District] and [Multiple Residence District] Zone. It is located across the street from the OI Zone, where residential uses are permitted. While billboards are not a permitted use in the LI Zone at all, where they are permitted in the OI Zone, a 1,000 foot separation from residential uses is required. New Jersey DOT regulations include similar separation requirements.[] While the conditional use requirements of the OI Zone are not necessarily applicable, they are a guide for the Board in evaluating this application. The Board finds that proximity to residential areas is a very significant factor, and is one condition that is not met by this application.

5. The encouragement of economic growth, which may well be a DOT objective, is not one of the purposes of zoning, either directly or indirectly. Virtually every commercial application presented to a zoning board promotes economic development. Furthermore, economic growth is not related to the manner in which a particular piece of land is used. The promotion of a State objective, in and of itself, does not necessarily advance one of the purposes of zoning. This factor does not constitute a "special reason" for the granting of a use variance. Finally, while it could be assumed that billboards might have an effect on economic development, there was no testimony to that effect. A link between economic development and the proposed billboard is speculative, at best.

6. The proofs relating to visibility from residential areas, probably the likeliest detrimental impact, were not persuasive. Only a few photographs were taken, no computer imaging was provided, and no comprehensive "view" analysis was provided. There was no testimony at all concerning lighting, and how the billboard will be visible at night. The proposed billboard, by design, is a large structure, designed to achieve maximum visibility to motorists along Route 95 in order to accomplish its intended purpose. The applicant did not meet its burden of proving a lack of detrimental impact to the public good, and the purpose and intent of the zone plan and ordinance.

7. Furthermore, the applicant did not establish that relief can be granted and reconciled with the Master Plan and Ordinance. The City of Englewood has a number of zoning districts, each with very specific requirements. Route 95 has existed for many years, and the Board finds that the Planning Board and Mayor and Council were undoubtedly aware of its existence when the Master Plan and Zoning Ordinance were adopted. There has been no significant change in the character of the community relevant to this application since that time. The use is one that is contemplated, and permitted with conditions, in another area of the municipality. The Board can only conclude that the failure of the Mayor and Council to make provision for the installation of a billboard on this property, or to make the property part of the OI Zone, was intentional. A fair reading of the Ordinance compels the conclusion that the Mayor and Council intended to limit off-premises signs, such as this billboard, to certain areas of the community, under strict guidelines.

8. It is not for the Board to determine the circumstances under which billboards are to be permitted in the City of Englewood, if at all. Therefore, the argument that if this billboard is not permitted, there will be only one in the City of Englewood altogether is not persuasive. It is up to the Mayor and Council to make those determinations.

9. The Board finds that the issuance of a permit by the New Jersey Department of Transportation is not relevant to the zoning determinations to be made by the Board, and is certainly not binding, nor of any precedential value. It only demonstrates that the applicant has met one of the other requirements for the installation of the billboard.

C.

Elray filed an action in lieu of prerogative writs in the Law Division, naming both Englewood and the Board as defendants. In addition to challenging the Board's decision, Elray sought a declaration that Englewood's total ban on billboards in the LI zone is unconstitutional on First Amendment grounds.

The Law Division held a two-day trial. Elliot Laniado, Elray's chief executive officer, testified that Elray's billboards typically attract a wide range of advertisers, including local and national businesses, municipalities, charitable organizations, unions, and political campaigns. Elray did not, however, have an advertising client lined up for the proposed billboard. He also testified that the signs were designed to include a type of lighting that would avoid glare by having "the light just focuse[d] onto the sign."

Elray's outdoor-advertising expert, John Roberts, testified that billboards are distinguishable from other advertising media, such as bus and print advertising, because they are always visible and can be targeted more locally. He noted that other billboards in the area are currently in use and have a long waiting list of potential advertisers. He compared billboards to bus advertising, which he said cannot be targeted as locally as a billboard, and newspaper and cable television advertising, which he testified is more expensive. According to Roberts, while a billboard costs approximately $2,500 per week, a newspaper ad would cost approximately $13,000 per week.

Elray's planning and real estate expert, Richard Preiss, testified that, based upon his tour of the surrounding area, the proposed billboard would not create a traffic hazard in Englewood. He also testified that the billboard would be visible from a small part of the LI zone and one part of the adjacent residential area, but that the angle of the highway, sound barrier and a one-story industrial building on the subject property would block it from view in most of the surrounding area. However, he acknowledged that, if the building on the property and the surrounding vegetation were ever removed, the billboard would be more visible.

Preiss testified that there are no locations in Englewood where a billboard could be erected because of the existing zoning. He said the 1,000 foot separation requirement in the OI zone foreclosed the possibility of another billboard in that zone, because of the adjacent residential uses in the overlaying planned unit development (PUD) district. He expressed his opinion that the LI zone along I-95 would be more appropriate for a billboard than the OI zone along Route 4.

Preiss further testified that the surrounding communities along major highways in the area did not require 1,000-foot separation between billboards and residential areas. Other municipalities' requirements ranged from 600 feet to no separation requirement at all. According to Preiss, billboards are located along major highways, such as I-80, in Hackensack, Lodi, and Saddle Brook. He confirmed that the lighting used on billboards eliminates glare and reflection.

Englewood's only witness was Peter G. Steck, a planner, who testified that, based on his reading of the zoning ordinance, the Planned Unit Development (PUD) district is not a residential zone for the purposes of the billboard ordinance in the OI zone, which opinion was apparently inconsistent with that of Englewood's long-time planner. In addition, it also appears inconsistent with paragraph 4 of the Board's resolution rejecting Elray's application, which specifically refers to the residential uses in the OI zone.

Steck gave his opinion that the mixed-use nature of the PUD district would be more suited for billboards because the PUD district would contain tall structures of up to 120 feet, taller than the maximum permissible height of a billboard. Consequently, he testified, someone purchasing a residence in the PUD zone would expect tall commercial structures in the neighborhood. Steck noted that, in contrast, residential zones limit structures to between thirty and forty feet and the LI zone limits structures to no taller than thirty feet.

Steck testified that because billboards must be highly visible to achieve their purpose, they necessarily have an impact on aesthetics. He testified that the V-shape of the proposed billboard gives it bulk, casting shadows and making it visible from various angles. He added that billboards are typically lighted at night and employ designs intended to attract attention.

Although the proposed site is in an industrial area, Steck noted that it was near a residential area and "there are typically efforts to buffer one from the other." There are approximately five homes within 1,000 feet of the proposed billboard. Steck testified that the billboard would be visible from the first floor of nearby residential buildings, and from a neighboring golf course in the winter when the leaves are off the trees. Preiss, however, had testified that the golf course is closed in the winter. Steck conceded on cross-examination that signage from the highway, the sound barrier, a cell tower, and industrial buildings are visible from the golf course. He testified that he "eyeballed" the area and determined that adding a billboard "detracts from what is its current residential environment."

Discussing the other possible location for a billboard, on Route 4, Steck said that one more billboard could be permitted in addition to the one already located there, assuming that the PUD district is not considered a residential district for the purposes of the ordinance. He testified that the Route 4 locations are appropriate from a safety standpoint because they are along straight sections running through non-residential areas, whereas the section of I-95 adjacent to the proposed billboard consists of a curve that requires a reduced speed limit.

Steck also discussed restrictions enacted by neighboring towns. He testified that some ordinances restricted billboards to less than 1,000 feet from a residential district. In Leonia, an ordinance requires the billboards be more than 600 feet from any residential structure. Leonia also prohibits lighting that produces glare visible from a residential dwelling within 1,000 feet. According to Steck, "[m]ost towns had no regulations on billboards." He stated that towns with regulations apply different standards that are not always comparable to one another. Steck opined that Elray's report did not adequately address whether the proposed billboard could be seen from the adjacent residential dwellings because the diagrams did not show the outline of the billboard in relation to the dwellings.

In a written decision dated April 16, 2008, the trial judge found the Englewood ordinance to be constitutional and upheld the Board's decision to deny Elray's application for a use variance. He explained his reasons as follows:

Based upon the testimony presented and the case law cited, the Court makes the following findings of fact and conclusions of law. Plaintiff's Application proposes an 85 foot billboard, which exceeds the 35 foot maximum height in the district. The billboard would be approximately 640 feet from the closest residential district, which is 360 feet less that the 1000 foot minimum distance required from residential districts. Additionally, although the proposed billboard is within 100 feet of the roadway, the posted speed limit on said roadway is reduced to 40 mph, and the proposed billboard would be located on a curve where there is a yellow caution sign, warning drivers to reduce their speed. The reduced speed limit coupled with the cautionary sign indicates that the proposed site is not a proper place to erect a billboard.

Pursuant to the Municipal Land Use Law, visual impact and aesthetics are legitimate zoning concerns, as the height of a billboard has a significant impact on aesthetics. Mr. Steck noted during his testimony that a billboard is a commercial enterprise and an intrusion into a residential area, as its purpose is to gain attention on a constant basis. Mr. Steck testified that the distinction of the impact of the proposed billboard on residents within 640 feet of the LI zone as opposed to residents in the PUD overlay district is consistent with the public policy of the City's zoning plan. Since there is a mandated mixed commercial and residential use in the PUD district, residents can anticipate that a billboard may be visible. However, residents located in a residential district, where there are no mandated commercial uses, do not anticipate such visual impact. Unlike residents in the PUD district, residents in the residential district are guaranteed a view of a residential, not a commercial, area.

This Court finds that the instant case is analogous to the line of cases which upheld state statutes requiring that adult bookstores cannot be located within 1000 feet of one another. See Twp. of Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587 (1999). Similarly, the 1000 distance requirement at issue in this case, is a reasonable way to insulate a resident from the aesthetic influence and visual impact of a billboard. The City took into account all of these legitimate land use considerations, and their decision was not arbitrary, capricious or unreasonable.

Additionally the Court is satisfied that reasonable alternative means of advertising are available in the City of Englewood and the neighboring communities. Another billboard is not the only comparable means of outdoor media advertising available. There are several other avenues which provide reasonable alternative means for commercial advertising such as newspapers, bus and taxi advertisements, building advertisements, and radio and cable television advertising. Thus, Ordinance 96-34 is a reasonable expression of public policy which balances free speech concerns with the municipal goals of aesthetics and travel safety.

The Court concludes that the City has met its burden with respect to the constitutional challenge upon its zoning ordinance. The ordinance does not violate the First Amendment because it is narrowly tailored to promote the City's interest in preserving the aesthetic quality of its residential districts. The courts have long recognized that aesthetics is a substantial government interest. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508[, 101 S. Ct. 2882, 2893, 69 L. Ed. 2d 800, 816] (1981). See also National Advertising Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir. 1988) (holding that a municipality may prohibit commercial billboards entirely in the interest of traffic safety and aesthetics). Therefore, the Court finds that Ordinance 96-34 is valid and constitutional.

Additionally, the decision of the Board to deny Plaintiff's Application is affirmed. The Board's decision was not arbitrary, capricious or unreasonable.

This appeal followed.

II.

Elray argues that the judgment on appeal must be reversed for two reasons. First, it contends that Englewood's zoning ordinance is unconstitutional because it effectively precludes commercial, and potentially non-commercial, speech through the medium of billboard advertising. Second, it contends that, even if the ordinance is upheld, the Board's action in denying its application for a use variance to construct the billboard in the LI zone was arbitrary, capricious, and unreasonable.

A.

We start our analysis with the well-established proposition that legislative enactments, including municipal ordinances, are presumed to be valid and that the burden to demonstrate invalidity is a heavy one. Bell v. Twp. of Stafford, 110 N.J. 384, 394 (1988). However, if the ordinance "directly impinges on a constitutionally protected right, the presumption in favor of its validity disappears." Id. at 395.

An ordinance significantly limiting or precluding billboards throughout a municipality "directly and drastically encroaches on a fundamental constitutional interest, freedom of speech and expression," especially when "the curtailment effected by the ordinance would apply to both commercial forms of expression as well as noncommercial speech, which could include political expressions." Id. at 395-96 (citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981)). Because of the potential for non-commercial speech on a billboard, "the burden of overcoming the charge of constitutional invalidity is particularly strenuous." Id. at 396.

As quoted above, the stated purpose of Englewood's ordinance was to preserve "residential qualities" and "limit the impact of such off-premises advertising signs to a relatively small area of office and industrial uses." Preserving the "aesthetics" of a municipality is a permissible consideration for constitutional purposes. Ibid. (citing State v. Miller, 83 N.J. 402, 407-411 (1980)). However, there are "problems in and [] limits to aesthetic zoning, particularly when it conflicts with beauty of a different sort -- free speech." Miller, supra, 83 N.J. at 411.

While the ordinance under review does address a matter of legitimate public concern, aesthetics, Englewood must also demonstrate that it has done so by "the least restrictive means possible [] to serve such an interest." Bell, supra, 110 N.J. at 396-97. It must also demonstrate that there are "alternative means of communication with the audience that [would be] reached by the medium that is restricted by the ordinance." Id. at 397. Both of those criteria are at issue here.

It is undisputed that there can be no conditional-use billboards in the LI zone adjacent to I-95, which has many similar characteristics to the OI zone and does not include a PUD overlay district permitting residential uses. Englewood has not, in our view, offered a reasonable explanation for its decision to exclude billboards totally from the LI zone. Indeed, as noted, it only allowed them conditionally in the OI zone after it settled litigation seeking to build one in that zone.

We are similarly unpersuaded by Englewood's argument that there are other avenues of communication available. We find no factual support in the record for that proposition, given the largely unrefuted testimony of Elray's expert about the relative costs and efficiency of the alternate means suggested. We find the trial court's reliance on Township of Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587 (1999), which concerned sexually-oriented businesses, to be inapposite.

We also find insufficient support in the record for Englewood's requirement that billboards be located at least 1,000 feet from residential areas. Elray presented testimony that neighboring municipalities have less stringent requirements. Steck, who was Englewood's own witness, testified that the next town, Leonia, only required a 600-foot separation and that "most towns had no regulations on billboards." (Emphasis added). The record reflects that the proposed billboard would not conflict with a 600-foot separation requirement.

Although the ordinance appears to advance a legitimate government interest, it fails to do so in the least restrictive manner possible. Engelwood has also failed to support its assertion that reasonable alternative channels of communication exist.

We find the ordinance to be unconstitutional to the extent it: (1) restricts billboards to a single business-industrial zone while excluding them from other similar zones, such as the LI zone at issue here; and (2) requires more than a minimum of 600 feet separation from a residential zone. Consequently, we reverse the judgment on appeal as to the issue of the constitutionality of the ordinance.

B.

We now turn to the issue of whether the Board should have granted the use variance to Elray. We do so in light of our decision that the applicable ordinance impermissibly banned billboards totally from the LI zone and that the requirement of a 1,000 foot distance from residential uses is invalid. Consequently, we view the application as if it had been one for a conditional-use variance, pursuant to N.J.S.A. 40:55D-70(d)(3), from the ordinance as modified by our holding on constitutionality.

In reviewing the decision of a zoning board, we afford deference to the Board's decision to deny or grant a variance. "[T]he courts must recognize that local officials 'who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance.'" Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). The Board's decision carries with it a presumption that its members have "act[ed] fairly and with proper motives and for valid reasons." Ibid.

We also afford zoning boards "wide latitude in the exercise of delegated discretion" and "cannot substitute an independent judgment for that of the boards in areas of factual disputes." Ibid.

So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

[Id. at 296-97 (citations omitted).]

Additionally, "[c]ourts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citing Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981); Mahler v. Bd. of Adjustment of Fair Lawn, 94 N.J. Super. 173, 186 (App. Div. 1967), aff'd o.b., 55 N.J. 1 (1969)). When considering the decision of the Board to accept or reject the testimony of a witness, "[w]here reasonably made, such choice is conclusive on appeal." Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div. 1960).

N.J.S.A. 40:55D-3 defines a conditional use as:

a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefore by the planning board.

Consequently, although a conditional use may be appropriate in some sections of a zoning district, it is not necessarily appropriate everywhere within the zoning district. "It is for this reason that a municipality is permitted to delegate discretion to its planning board to consider the suitability of a proposed conditional use for a particular site." Cardinal Props. v. Westwood, 227 N.J. Super. 284, 287 (App. Div.), certif. denied, 111 N.J. 631 (1988).

If, however, the proposed conditional use does not meet all of the conditions for the use, an applicant must apply to the board of adjustment for a conditional-use variance under the standards of N.J.S.A. 40:55D-70(d). Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 296 (1994). "A variance for a deviation from a condition allows the applicant to engage in a conditional use despite the applicant's failure to meet one or more of the conditions: It is not the use but the non-compliance with the conditions that violates the ordinance." Id. at 287.

In Coventry Square, the Supreme Court articulated the burden of proof that applicants would need to satisfy in order to be granted a conditional-use variance. The Court stated:

the proof of special reasons that must be adduced by an applicant for a "d" variance from one or more conditions imposed by ordinance in respect of a conditional use shall be proof sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance. That standard of proof will focus both the applicant's and the board's attention on the specific deviation from conditions imposed by the ordinance, and will permit the board to find special reasons to support the variance only if it is persuaded that the non-compliance with conditions does not affect the suitability of the site for the conditional use. Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.

 
The thrust of the proof addressed to the negative criteria is similar. In respect of the first prong of the negative criteria, that the variance can be granted "without substantial detriment to the public good," N.J.S.A. 40:55D-70, the focus is on the effect on surrounding properties of the grant of the variance for the specific deviations from the conditions imposed by ordinance. "The board of adjustment must evaluate the impact of the proposed [conditional-]use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Medici [v. BPR, Co.], 107 N.J. [1,] 22 n.12 [(1987)] (quoting Yahnel [v. Bd. of Adjustment], 79 N.J. Super. [509,] 519 [(App. Div.), certif. denied, 41 N.J. 116 (1963)] (explaining weighing function of board of adjustment in respect of negative criteria)). In respect of the second prong, that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district.

[Id. at 298-99.]

Elray argues that, because the proposed use involves constitutionally protected speech, we should find that it is inherently beneficial and apply instead the standard set forth in Sica v. Board of Adjustment, 127 N.J. 152 (1992), under which there is a balancing of the positive and negative criteria against one another. "Inherently beneficial" uses are "'so universally considered of community value that municipalities should be favorably disposed toward their inclusion.'" Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 90 (2002) (quoting William M. Cox, New Jersey Zoning and Land Use Administration 7-4.2(a) at 153 (2002)). Examples of such uses include a "school, hospital or public housing facility." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006).

If a use is inherently beneficial, it automatically satisfies the positive criteria showing that granting the variance would promote the general welfare. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (citing Burbridge v. Mine Hill Twp., 117 N.J. 376, 394 (1990)). Otherwise the applicant must prove that there is a benefit to the general welfare because the site is suited for the particular use. Medici v. BPR Co., 107 N.J. 1, 4 (1987); Saddle Brook Realty, supra, 388 N.J. Super. at 76.

Where an inherently beneficial use is involved, the applicant need not satisfy both the positive and negative criteria. Rather, the Board is to balance the positive and negative criteria against one another, taking into account the public interest involved, the detriment to the community, and possible conditions the Board can apply to mitigate any detriment. Sica, supra, 127 N.J. at 165-66. Therefore, it is necessary to determine whether a billboard is an inherently beneficial use.

Elray cites a line of cases finding that places of worship and radio towers constitute inherently beneficial uses and constitutionally protected speech. See Smart SMR, supra, 152 N.J. at 332 (noting that telecommunications facility "serves the greater community"); Kali Bari Temple v. Bd. of Adj., 271 N.J. Super. 241, 248 (App. Div. 1994) ("It has been held that a church use is inherently beneficial."); Burlington Assembly of God Church v. Zoning Bd. of Florence, 238 N.J. Super. 634, 643-44 (Law Div. 1989) (holding a zoning ordinance unconstitutional that affected a church's proposed radio tower and consequently violated the church's freedom of speech).

Elray has not cited, and we have not found, any cases in New Jersey to support its assertion that billboards should be treated in the same manner as cellular towers or other communications facilities. Although constitutional considerations inform any analysis of zoning restrictions applicable to billboards, we cannot conclude that they must be viewed as inherently beneficial in the same sense as a cellular tower. Consequently, we decline to apply the Sica standard.

The proposed site is along a major highway in a non-residential, light-industrial zone. DOT has already deemed the site appropriate. Although not determinative, DOT approval is indicative that the proposed site would be an appropriate location for a billboard in terms of traffic safety on I-95, which is the DOT's primary concern. Therefore, the site is arguably suited for such a use.

N.J.S.A. 27:5-26 provides that DOT's authority to issue permits for billboards "shall not be construed to limit the powers of any political subdivision of this State to regulate land, streets, buildings or structures by zoning or other means, or to prohibit the enforcement of local ordinances or regulations in a manner consistent with the purposes of this act." However, it also provides that, in the event of a conflict, the statute "shall prevail to the extent necessary to permit the State to carry out the policy as declared herein." We conclude, therefore, that, while a municipality is not bound by a DOT's decision to grant a permit, the Board's failure in this case even to consider DOT's determination on the issue of traffic safety was arbitrary and capricious.

We note, however, that DOT has revised its permit procedures, and now requires municipal involvement prior to a permit becoming final. N.J.A.C. 16:41C-5.4. We also note that Elray received its permit over ten years ago. The fact that the permit obtained by Elray is dated and apparently did not include any opportunity for the Board to participate in the process, undercuts the persuasiveness of DOT's decision.

With respect to negative criteria, the Board argues that Elray's proofs failed to establish that the specific billboard Elray seeks to build would not have a detrimental impact on the neighboring residential zone. The Board focused its argument on the proposed billboard's detrimental impact on Englewood's aesthetic value. The testimony focused on the aesthetic impact on two areas in particular: the adjacent golf course to the west, and the residential neighborhood to the east.

The golf course borders a major interstate highway on one side, and an industrial zone on another. The billboard would be visible only in the winter when the leaves are off the trees. Elray's planning expert testified that the course typically closes for the winter at the beginning of December. The Board's concerns with respect to the golf course are simply not persuasive.

The aesthetic impact on the nearby residential zone is another matter, and one that is difficult to resolve based on the record before us. The testimony indicates that the billboard would be visible only from a few locations in the residential zone, and that those homes are surrounded by industrial and commercial properties already. Therefore, it would seem that a billboard might not significantly detract from the aesthetic value of the surrounding area.

However, the height of the billboard presents a significant issue. In order for the billboard to be completely visible on I-95 from the proposed location, it must apparently be significantly taller than the sound barrier along the highway, making it taller than the structures already allowed in the LI zone in addition to being taller what the conditional use allows. The height and the fact that it is a V-shaped, double sign would cause it to be even more noticeable.

It is our understanding that the proposed site for the billboard is not actually adjacent to the sound barrier, but that Elray seeks to build higher than the barrier to enhance visibility. During the hearing before the Board, Elray introduced several pictures taken from the residential area and the highway, but those pictures do not illustrate the height of the billboard or the distance from which the photos were taken. Some photographs include arrows indicating the location of the proposed billboard, but nothing to indicate its height or bulk. Because the exhibits do little to address the negative criteria, and given the size and height of the proposed billboard, we cannot conclude that, on the present record, the Board's determination that Elray failed to satisfy its burden to prove the negative criteria was arbitrary, capricious, or unreasonable.

We conclude that Elray has not demonstrated, on the present record, that the specific billboard it proposed to build would be appropriate for a conditional-use variance at the specific location suggested. Consequently, we affirm the judgment on appeal to the extent it upheld the Board's decision to deny the variance, which we have considered as one for a conditional-use variance as opposed to a use variance.

III.

In summary, we reverse as to the constitutionality of the ordinance, holding that it unconstitutionally (1) prohibits billboards in the LI zone as a conditional use and (2) requires that they be 1,000 feet from residential uses. We affirm as to the merits of the Board's decision not to grant, on the present record, what would, under our decision, be a conditional-use variance.

 
Reversed in part and affirmed in part.

The LI zone permits "manufacturing, fabricating, processing, wholesale distributing, and warehousing uses." There is a thirty-foot height restriction on all buildings in the LI zone. The OI zone permits uses similar to those in the LI zone, but has an eighty-five-foot height restriction on all buildings.

Elray made an initial application to the Board around that time to construct a billboard, however, the application was denied.

Although the billboard would not be next to the sound barrier, the sightline from I-95 would be blocked in places if the bottom of the sign were not above the top of the barrier.

Englewood's planning expert witness Peter G. Steck testified that this portion of I-95 has a reduced speed limit of 40 miles per hour "because there's a sharp bend to the right."

We note there is no separation requirement for billboards and residential uses in the DOT regulations. There is only the requirement that the billboards be placed in commercial or industrial zones. N.J.A.C. 16:41C-5.7.

We do not hold, however, that they must be a permitted use in every industrial zone. L.I.M.A. Partners v. Borough of Northvale, 219 N.J. Super. 512, 524-25 (App. Div. 1987).

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A-4627-07T3

September 8, 2009