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H.A. Steen Industries, Inc. v. Borough of Lawnside Zoning Board of Adjustment

March 12, 2009

H.A. STEEN INDUSTRIES, INC., PLAINTIFF-APPELLANT,
v.
BOROUGH OF LAWNSIDE ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1761-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2009

Before Judges Stern, Waugh and Newman.

H.A. Steen Industries (Steen) appeals from the dismissal of its action in lieu of prerogative writs challenging the denial of its application for planning approval to construct a monopole with related advertising signs in Lawnside, Camden County. We affirm substantially for the reasons set forth in Judge Francis J. Orlando, Jr.'s comprehensive opinion in the Law Division.

I.

Steen owns an irregularly shaped, 2,000 square-foot, undersized lot on the White Horse Pike in the Borough of Lawnside. The lot is located within Lawnside's business (B.B.) zone. The irregular size and shape of the lot are the result of the acquisition, prior to Steen's purchase of the lot, of a portion of the original property by the New Jersey Turnpike Authority. The rear of the property abuts the Turnpike. Steen argues that the property, due to its size, location, and configuration, is "incapable of supporting any conforming building permitted in the B.B. zone."

There is an abandoned, single-story masonry structure on the property, which was once a seafood store. The building's foot print reaches beyond the setbacks required by Lawnside's zoning ordinances. Steen proposes to tear it down and replace it with a monopole that would support two twelve-by-twenty- eight-foot billboard faces, placed side-by-side.

In 2005, Steen filed its first application with the Borough of Lawnside Zoning Board of Adjustment (Board) for a use variance under N.J.S.A. 40:55D-70(d)(6). At that time, Steen proposed a monopole that would support two twelve-by-twenty- eight-foot signs stacked one on top of the other. The Board denied Steen's application, finding that advertising billboards were not a permitted use in the business zone.

Steen filed an action in lieu of prerogative writs in the Law Division. In May 2006, Judge Orlando determined that billboards were a permissible use in Lawnside's B.B. zone as a matter of law. Judge Orlando remanded the case to the Board for consideration of Steen's application on its merits.

On remand, Steen altered the design of the proposed billboard. Instead of stacking the billboards one on top of the other, Steen proposed placing the two sign faces next to each other. Steen's revised proposal required three bulk variances, N.J.S.A. 40:55D-70(c), and a use variance, N.J.S.A. 40:55D- 70(d)(6), because the structure extends beyond the required setbacks and three feet above the permitted height.

The Board considered Steen's revised application at its meeting on October 26, 2006. Gregory Fusco, a professional planner, testified on behalf of Steen. Fusco presented his opinion that Steen had met both the positive and negative criteria required for a variance under N.J.S.A. 40:55D-70. Steven Gorlechen, the executive vice-president of Steen, testified that, because billboard signs come only in standard sizes, any billboard built on the property would need to conform to those industry standards. George Stevenson, Lawnside's professional planner, testified that the proposed billboard structure would adversely affect the aesthetics of the community.

At the close of the meeting on October 26, 2006, the Board denied Steen's variance request. The Board issued a written resolution memorizing its decision. The Board found that there was no explanation given by the Applicant as to why a smaller sign would not fit on the proposed lot and still be seen by both pedestrian and vehicular traffic traveling on White Horse Pike.

. . . The Board concluded that the testimony of George Stevenson regarding maintaining the Gateway along that portion of the White Horse Pike was consistent with the overall goals of the Zoning Plan of the Master Plan and that the height and scale of the proposed double wide sign would be a detriment to neighbors . . . which include Mount Zion Church.

The Board disregarded Fusco's testimony to the contrary, concluding that his testimony was based on the false premise that a McDonald's sign, actually located in Magnolia, was the "real gateway to Lawnside."

Steen filed the present action on March 29, 2007. On December 5, 2007, Judge Orlando upheld the Board's decision and dismissed Steen's complaint. After setting out the factual background and applicable law, Judge Orlando explained his reasons as follows:

The Board found and determined that the application as proposed by Steen would undermine the overall goals of the Master Plan given the height proposed and the overall signage proposed by Steen.

There was support in this record and transcript from Mr. Stevenson. He's a professional planner and he stated,

The site is approximately a quarter of a mile from the municipal boundary with Magnolia. In my mind, the quarter of a mile from Magnolia extending to the embankment of the turnpike really represents a gateway to this community. It's a major point of entrance in this community. Municipalities are generally very particular about how they want their major entrances to look. I would say that in terms of maintaining the community character, which is one of the objectives, this objective that I quoted to you from the Master Plan, that this proposal is counter to the objective.

He goes on to recount the signs that go from the Borough's border with Magnolia to the embankment which is the site of the proposed sign, and goes on to state,

So you have the character of that entrance, of that gateway, as basically an area where you do not have anything that's akin to sign proliferation. What you do have is some monument signs[, a] very small vacant freestanding small sign box for childcare use and you have two freestanding signs for the Lowe's site. I would say that the signs that are there right now, those signs that I've mentioned, that they contribute. They make a positive contribution to the aesthetics of that particular gateway and I don't believe that the freestanding or the billboard sign that's proposed would make a similar type of contribution.

He then concludes [] by saying,

Here you have a major gateway to this community, that from that embankment going back towards Magnolia there is only one billboard, everything else is [a] freestanding, . . . monument sign. I believe that this billboard being proposed would be out of character with this section of the community. I believe that it would have a detrimental impact on the aesthetics of that gateway.

The Board accepted the opinion of Mr. Stevenson, and rejected the opinion of Mr. Fusco. And, indeed, cases have held that Boards are free to either accept or reject the testimony of experts where reasonably made such a choice is conclusive on appeal. Kramer v. Board of Adjustment, Sea Girt[, 45 N.J. 268, 288 (1965)] (quoting Reinauer Realty Corp. v. Nucera[,59 N.J. Super. 189, 201 (App. Div. 1960)]. In this particular case the decision by the Board to reject the testimony from Mr. Fusco was certainly most reasonable. First of all, we have two different experts, we have Mr. Stevenson and Mr. Fusco. Second of all, Mr. Fusco erred when he based much of his opinion about the character of signage along the White Horse Pike by focusing on the McDonald's sign which apparently he erroneously believed was in the Borough of Lawnside. He stated []: "For some reason in Lawnside, this community cries out for large signs. Everyone knows McDonald's, the entrance, the gateway, the real gateway to Lawnside that I have known ever since I was a little kid is McDonald's."

I guess he was somewhat chagrined when the chairperson pointed out to him that McDonald's is not in ...


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