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Infinity Outdoor, Inc. v. Delaware and Raritan Canal Commission

October 12, 2006

INFINITY OUTDOOR, INC., PETITIONER-APPELLANT,
v.
DELAWARE AND RARITAN CANAL COMMISSION, RESPONDENT-RESPONDENT.



On appeal from the final decision of Delaware and Raritan Canal Commission, Docket No. DRCC 99-2570.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued Telephonically September 22, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

Petitioner Infinity Outdoor, Inc. (Infinity) appeals from a final administrative decision of the Delaware and Raritan Canal Commission (DRCC) denying its application for approval of a proposed outdoor advertising structure and for waiver of visual impact regulatory requirements. We affirm.

The proposed structure was to be a two-sided single-pole billboard, seventy-seven feet in height, showing to traffic two fourteen by forty-eight square foot advertising surfaces. The structure was to be erected on property located at New York Avenue and Pear Street, immediately west of Route 1 Southbound in Trenton, in an area zoned primarily for industrial and commercial use but, critical for present purposes, ten feet from the Delaware and Raritan Canal State Park (Park) boundary.

The canal has been designated a vital source of water supply and the narrow band of land along the canal banks owned by the State is of historic, ecological and recreational value to the citizens of New Jersey. N.J.S.A. 13:13A-2a. In recognition of the importance of this State resource, the Legislature has entrusted the DRCC with the responsibility of "preserv[ing], maintain[ing], improv[ing], and enlarg[ing]" the Park, N.J.S.A. 13:13A-2b; preparing and implementing a master plan for the physical development of the Park, N.J.S.A. 13:13A-11h; N.J.A.C. 7:45-1.1; and protecting the Park from myriad local zoning "expediencies." N.J.S.A. 13:13A-2a. To this end, the Legislature has provided for a review zone, consisting of a "region appertaining to and including the [P]ark . . . in which proposed 'projects[]' . . . may cause an adverse impact on the [P]ark," N.J.S.A. 13:13A-3f, within which any proposed project must be "review[ed] and approv[ed], reject[ed], or modifi[ed]" by the DRCC. N.J.S.A. 13:13A-14c.

In this regard, the DRCC is authorized to determine the extent and limits of the region to be designated as the "review zone." N.J.S.A. 13:13A-14a. Thus, in this setting, governing regulations prohibit advertising structures within 200 feet of the Park. N.J.A.C. 7:45-7.4(d)3. However, applicants are afforded the opportunity to seek visual impact waivers if they completely shield the structure from the Park with vegetative screening. N.J.A.C. 7:45-9.7(a). The regulations also allow for hardship waivers based on economic hardship. N.J.A.C. 7:45-9.3.

Because the proposed billboard fell well within the "review zone," petitioner was required to obtain the DRCC's approval, N.J.A.C. 7:45-7.4(a), after first having secured a height variance from the City of Trenton Zoning Board of Adjustment, which was granted on February 17, 1999. N.J.S.A. 13:13A-14c. Consequently, on August 27, 1999, petitioner submitted its initial application to the DRCC seeking a visual impact waiver for approval to erect the billboard structure. The DRCC denied the application on October 20, 1999, without prejudice however, allowing petitioner to submit a new application with a landscape screening plan.

Accordingly, on January 10, 2000, petitioner submitted a new application with landscaping involving the use of red cedar trees to buffer the view from the Park, and providing possible access to the Park from an adjoining street, New York Avenue. Because the proposed pedestrian access to the Park's towpath required an easement, petitioner requested month-to-month extensions from March to August 2000 to allow for negotiations with a third party. Despite the several continuances granted by the DRCC, petitioner considered its application for approval "complete" as of March 8, 2000. In any event, after having successfully completed negotiations, petitioner further amended its application on August 15, 2000, proposing to increase the structure's setback from the Park by twenty-eight feet and submitting new landscaping plans and plan views of the advertising surfaces from varying distances. Because it needed more time to review the most recent amendment, the DRCC asked for a continuance from the August 2000 agenda, on which the matter originally had been placed. Petitioner agreed and a proposed date was set after the scheduled September 21st meeting.*fn1

On September 20, 2000, the day before the scheduled meeting, the DRCC informed petitioner that its application was incomplete because its August 15, 2000 revision changed the structure's location, requiring municipal land use approval prior to DRCC consideration, which it had not obtained from the City of Trenton Zoning Board. Although disagreeing with the DRCC's requirement, because in its view the variation was de minimus, petitioner nonetheless withdrew its amendment and requested DRCC action on its original application. However, on September 28, 2000, DRCC staff asked for clarification and delineation of the landscaping plans actually relied on by petitioner in order to complete the application for submission at the DRCC meeting on October 18, 2000.

Petitioner never responded to this request, but instead on October 13, 2000, asserted that its application was "complete" on March 8, 2000, and therefore automatically approved, pursuant to the default provisions of N.J.S.A. 13:13A-14c and N.J.A.C. 7:45-2.6(f), because the DRCC failed to act within the requisite 45-day period, or for that matter by September 21, 2000, the deadline set to address the amendment. On October 18, 2000, the DRCC rejected this claim and denied petitioner's application for a visual impact waiver both with and without the cedar tree buffer, finding the proposal violated applicable regulations which preclude the construction of structures within 200 feet of the Park boundary. N.J.A.C. 7:45-7.4(d)3.

Pursuant to N.J.S.A. 52:14B-10.1 and N.J.A.C. 7:45-4.1, at petitioner's request, the matter was referred to the Office of Administrative Law (OAL) for an adjudicatory hearing before an Administrative Law Judge (ALJ). Following the ALJ's denial of petitioner's pre-hearing motion that the Commissioner of the New Jersey Department of Environmental Protection (DEP), rather than the DRCC, should issue the final agency determination, the case was heard and an Initial Decision was rendered by the ALJ on March 8, 2004, affirming the DRCC's initial denial of petitioner's request for a waiver from visual ...


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