On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, J.A.D.
Defendant Zoning Board of Adjustment of the Borough of Hillsdale (board) appeals from a judgment of the Law Division in favor of plaintiff Singer Supermarkets, Inc., reversing the board's denial of plaintiff's application for a variance to erect ten signs on the front facade of its building and directing that the appropriate municipal official of the Borough of Hillsdale issue the necessary permit to plaintiff to permit it to erect and maintain the requested signs.
Plaintiff leased a building located at 372 Broadway, Hillsdale, New Jersey, in which it operated a "Shop Rite" supermarket. The building was located in a commercial zone, and plaintiff sought a variance to erect and maintain ten signs on the front facade of the building for the purpose of displaying advertisements.
The board, following a hearing, found that the granting of the variance would result in a substantial departure from and
substantially impair the terms, purposes and intent of the Hillsdale's Land Use Ordinance, and that plaintiff failed to show sufficient and compelling reasons why the variance should be granted and therefore denied the requested variance. In reaching this result the board, in part, made the following findings of fact and conclusions:
That if the requested variance relief were approved, the 10 additional signs permitted on the front facade of the building on the subject premises would present a potential safety hazard, since drivers passing along Broadway, the public street which abuts the premises, or driving within the parking area of the premises, could be distracted thereby.
That of all other commercial establishments in the borough, there was no evidence submitted to the Board of any such establishment where there were as many as 10 signs on the front facade thereof, as proposed by the applicant for the subject premises; and that, if the Board were to permit such a significant departure from the terms of the Land Use Ordinance, it would create a bad precedent for future applications of this kind.
Plaintiff thereupon instituted this action contending, generally, that (1) the denial of the variance by defendant was arbitrary, capricious and unreasonable, and (2) the provisions of the Hillsdale Land Use Ordinance which regulate business signs are unconstitutional on their face and as applied to the premises leased by plaintiff. The trial court, at the conclusions of the hearing, did not decide the question of the arbitrariness of the denial of the variance. Rather, it held that the challenged provisions of the ordinance were unconstitutional as applied to plaintiff. This appeal followed.
Section 1.003 of the Hillsdale Land Use Ordinance defines a "sign" as "[a]ny device (whether or not permanent, mobile or portable), structure, or object that provides visual communication to others . . . ." Section 4.410 of that ordinance ("Signs Permitted in the Commercial District Only"), provides in part:
a) One sign which relates to the business being conducted on the premises and which does not exceed an area equal to ten percent of the front facade may be placed or inscribed upon the front facade of the building. The sign may be illuminated but shall not be of the flashing type and shall not project more than twelve inches in front of the facade or extend more ...