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Intervine Outdoor Advertising, Inc. v. City of Gloucester City Zoning Bd. of Adjustment

May 2, 1996


On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication May 2, 1996.

Before Judges Michels, Villanueva, and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D. (temporarily assigned).

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by

KIMMELMAN, J.A.D. (temporarily assigned).

Plaintiff Intervine Outdoor Advertising, Inc. appeals from a judgment of the Law Division which affirmed the denial by defendant City of Gloucester City Zoning Board of Adjustment (Board) of plaintiff's application for a use and bulk variance to construct three freestanding billboards on property it intends to lease adjacent to the New Jersey approach to the Walt Whitman Bridge. Plaintiff's complaint in lieu of prerogative writs also joined as a defendant the City of Gloucester City (City), contending that the zoning ordinance was invalid because the City had not reexamined its master plan and zoning regulations within six years as required by N.J.S.A. 40:55D-89, and that, if not invalid, the zoning ordinance was otherwise unconstitutional. The Law Division rejected these claims, upholding the validity of the zoning ordinance.

We affirm the denial of plaintiff's application for a use and bulk variance and affirm that portion of the judgment entered April 14, 1995, which upheld the City's compliance with N.J.S.A. 40:55D-89 and which also upheld the constitutionality of the zoning ordinance insofar as it regulates commercial speech with respect to the sign regulations. The trial court did not reach the question as to the constitutionality of the sign regulations applicable to noncommercial speech. However, we find unconstitutional that part of the sign regulations which limits noncommercial speech contained in signs to a temporary basis not to exceed a consecutive period of sixty days in any calendar year. Since we do not find the constitutional defect to require invalidation of the entirety of the sign regulations contained in the zoning ordinance, but only to require severance of the offending language from the noncommercial sign regulations, the remaining provisions survive.

Plaintiff is a company engaged in erecting and maintaining freestanding, outdoor advertising structures. It has entered into an arrangement with Holt Cargo Systems, Inc., the owner of the subject property, to lease the property for the erection of billboards. The property site is located in the Port and Cargo Handling Zone of the City's zoning ordinance, wherein the permitted uses pertain to the maintenance of piers, warehouses, and like facilities for the operation of businesses related to the receipt, temporary storage, and transfer of cargo. A use not specifically permitted in that particular zone, such as the erection and maintenance of signs, is prohibited under the ordinance. The site is also located in the Shoreline Overlay District, which includes lands within 500 feet of the Delaware River shorelines. Among the stated purposes for creating this district are the encouragement of public use and enjoyment of the shorelines and the enhancement and increase of views and access to the water. An objective of the City's 1985 master plan is eventually to rezone the waterfront area from industrial to mixed-use development and to clean up and beautify the entrances to the City by various techniques, which include prohibiting new billboards and attempting to retire old ones.

Plaintiff proposes to construct three double-faced, steel, freestanding pole signs, one on the south side of the Walt Whitman Bridge and two on the north side. Each sign would be externally lit at the bottom, measuring 16 feet by 60 feet, and would be located approximately 30 feet above the bridge roadway, approximately 90 feet above the ground, and approximately 30 feet from the bridge rights-of-way. In addition to commercial advertisements, plaintiff proposes to use the reverse side of the signs for noncommercial advertisements and messages such as promoting the New Jersey State Aquarium, the New Jersey State Tax Amnesty Program, the Franklin Institute, and political campaigns. Similar noncommercial billboards are located adjacent to the bridge on the Pennsylvania side.

After considering the application and the testimony presented in support and against thereof, the Board concluded that plaintiff's application was a substantial departure from the signage requirements of the zoning ordinance, that the application could not be granted without substantial detriment to the public health, safety, and welfare of the City, and that plaintiff had not shown any special reasons why the application should be granted in view of the detriments. See N.J.S.A. 40:55D-70d.

We are satisfied, based upon the thorough and well-reasoned letter opinion of Judge Theodore Z. Davis, that the Board's denial of plaintiff's application for a use and bulk variance finds support in the evidence and was not arbitrary, capricious, or unreasonable. Booth v. Board of Adj. of Rockaway, 50 N.J. 302, 306, 234 A.2d 681 (1967). Judge Davis also correctly held that the City had complied with N.J.S.A. 40:55D-89, which provides in pertinent part:

The governing body shall, at least every six years, provide for a general reexamination of its master plan and development regulations by the planning board, which shall prepare and adopt by resolution a report on the findings of such reexamination, a copy of which report and resolution shall be sent to the county planning board and the municipal clerk of each adjoining municipality. . . .

On April 15, 1991, within the six-year statutory period, the City adopted resolution #67, which reads:

WHEREAS, the Planning Board of the City of Gloucester City has conducted a review and re-examination of the existing Master ...

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