March 12, 2009
H.A. STEEN INDUSTRIES, INC., PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 Lawnside, but is in Magnolia.
The Board further discounted his testimony by the fact that he stated that the Susquehanna Bank sign, which is a monument sign, could not be seen by passersby who are traveling in vehicles along the White Horse Pike. Mr. Stevenson countered that, but also the board members who travel along the White Horse Pike, since it cuts through Lawnside which is a relatively small community had their own point of reference to evaluate that testimony.
Finally, I note that the Board's finding that the dimensions and size of the proposed lot warrant a billboard sign smaller in dimension and scope than was proposed by the applicant are certainly borne out and relevant in the transcript.
But leaving aside for the moment the argument of whether a twelve-by-twenty-eight-foot sign is required to be erected in order to be seen by motorist for offsite advertising, the applicant was proposing two such signs for this particular site, and overburdening -- and therefore overburdening the site as the Board found. Indeed, there's still an issue of whether a twelve-by-twenty-eight sign is indeed necessary to be erected in order to be seen by the passing motoring public. But even assuming that it is, the applicant was purposing two such signs which further encroached on the site and further impacted the aesthetics in this gateway section of the community.
Accordingly, the Court will dismiss with prejudice the complaint of the plaintiffs. The Court finds that the decision of the Board is supported by the record and is not arbitrary, capricious or unreasonable.
The Court notes that this case appears to be somewhat akin to the situation of Simeone v. Zoning Board of Adjustment of Township of East Hanover, 377 N.J. Super. 417 [(App. Div. 2005)]. Although that case didn't deal with a billboard, it dealt with a house. In that case the Court noted, "the side yards and frontage of the home proposed by the contract buyer are dramatically different than the requirements in the zone and the houses in the neighborhood." [Id. at 427.] The Court went on to note that:
[The] findings [of the Board] are well supported by the record. So too, is the Board's ultimate conclusion that the requested relief would undermine the purpose of the zoning ordinance and zoning plan. . . .
This is not to say, however, that no house may be constructed on the isolated undersized lot. . . . Our review is limited, however, only to the plan proposed [for this particular home].
[Ibid. (citation omitted).]
It seems to me that the Board has acknowledged through counsel that most probably the only thing that can be erected on this site is a billboard advertising sign. This Court has determined that this particular proposal of two twelve-by-twenty-eight-foot signs for a total of 692 square feet of sign was in the Board's - - there was evidence in the record that the Board's determination that a sign of that size and of those dimensions being twenty feet above grade was undermining the purposes of the Borough's Ordinance and the Zoning Plan, and was adversely effecting the aesthetics and the important gateway to the community.
The trial judge denied Steen's motion for reconsideration in February 2008. The present appeal followed.
Steen raises the following issues on appeal:
I. Steen is entitled to variances pursuant to both N.J.S.A. 40:50D-70(c) and (d).
A. The proposed advertising sign is particularly suited to the property.
B. The record before the Board clearly established that the applicant met the "negative criteria."
II. The aesthetics of the community would not be adversely affected by Steen's proposed sign.
III. The Board focused on numerous improper issues when considering Steen's application.
A. The defendant Board was primarily concerned with the content of Steen's proposed sign.
B. The court relied upon a non-existent objective of the Lawnside Master Plan and failed to consider certain other objectives.
IV. Advertising industry sign standards require the size sign applied for by Steen.
A. The record clearly demonstrates that a sign of the dimensions proposed by Steen is necessary and appropriate.
B. The court improperly ignored the testimony of Steen's expert, Gregory Fusco.
V. The sign area restrictions of Sec. 96-78 do not apply to a billboard sign and Sec. 96-88 provides no sign area restrictions in the B.B. district.
A. Procedural history on the applicability of Sec. 96-78 and 96-88 to Steen's property.
B. The requirement of Sec. 96-78 should not apply to 96-88.
VI. An inverse condemnation of Steen's property has occurred since there is no indication what restrictions apply to advertising signs in the B.B. district. (Not raised below.)
When reviewing the decision of a zoning board, the courts must 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)). A zoning 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 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. We will not interfere with the decision of a local zoning board "except upon a showing that the action of the municipal officials was arbitrary, capricious or in manifest abuse of their discretionary authority." Grundlehner v. Dangler, 29 N.J. 256, 266 (1959).
Additionally, we "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 East 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)).
Finally, when considering the decision of a zoning 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).
Steen argues that it is entitled to the requested variances because it satisfied the requisite positive and negative criteria of N.J.S.A. 40:55D-70. In denying the variance request, the Board focused on the statute's negative criteria, finding that the proposed signs would be a detriment to the aesthetics of the Lawnside gateway, preservation of which was said to be a goal of the Lawnside Master Plan.
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a municipality's board of adjustment is authorized to grant bulk and use variances if the required criteria are met. N.J.S.A. 40:55D-70(c), (d). Before a board can grant a variance under N.J.S.A. 40:55D-70, it must find, "based on competent proofs, that the appropriate negative criteria have been met; i.e., that the relief can be granted 'without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Kramer, supra, 45 N.J. at 292 (citation omitted).
In L.I.M.A. Partners v. Borough of Northvale, 219 N.J. Super. 512, 524-25 (App. Div. 1987), we recognized that, despite First Amendment implications, appropriate regulations on communication means, such as satellite dishes, billboards, and signs, are permissible. Specifically, "even in zoning districts where such facilities must be permitted, they may be subject to reasonable regulation in order to minimize any adverse aesthetic impact." Id. at 525. See also State v. Miller, 83 N.J. 402, 415 (1980) (holding that the preservation of aesthetics is a legitimate end for a municipal zoning ordinance).
Steen argues that preservation of the Lawnside gateway is not an objective of the Lawnside Master Plan. Steen points to the Lawnside Master Plan Reexamination Report of 2004 (Report), which sets forth the following two objectives: (1) "[t]o enhance the vitality of the White Horse Pike and Warwick Road commercial corridor area" and (2) "[t]o promote a fully productive utilization of commercially zoned land." Steen argues that its proposed billboard would satisfy those two objectives.
However, the Report relied upon by Steen articulates additional objectives, including: "[t]o maintain community character and improve the quality of existing development" and "[t]o promote conservation of the natural setting and the environmental amenities of Lawnside." These objectives are consistent with the Lawnside planner's concerns about maintaining the character of the Lawnside gateway. It is clear that the removal of the existing building would be beneficial to the community, but the dispute is whether the proposed billboard signs would "enhance" the area or negatively impact the aesthetics of the community gateway.
Giving the necessary deference to the decision of the Board and its credibility determinations,*fn1 we see no basis on which to find its denial of the variances arbitrary and capricious. The Board adequately explained in its written resolution the negative effects that Steen's proposed billboard would have on the aesthetics of the Lawnside gateway, noting that the proposal was for a "double wide sign." Judge Orlando also placed emphasis on the fact that Steen was seeking to have two signs.
Finding that Steen had failed to satisfy the negative criteria of N.J.S.A. 40:55D-70 was a sufficient basis for the Board to deny all of Steen's variance requests.
Arguing that there is a potential First Amendment violation, Steen takes issue with the following exchange that took place during the Board meeting on October 26, 2006, between Steen's attorney and a member of the Board:
Mr. Minatee: I thought your presentation was eloquent, but you didn't answer two of the questions that's most paramount in my mind. You did not answer the thoughts about the community and the church.
Mr. Rosensweig: What are they, sir?
Mr. Minatee: Well, one, the structure being put in front of the church, we don't know what kind of material is going to be posted on that sign. On Sunday mornings these people come out the church; they'll be exposed to any and everything that you think that you ought to put up there. There's no guarantees to us that -- what advertisements would be put on that sign. And you never took in consideration of the church.
Mr. Rosensweig: What people feel about a sign is really not the test for you.
Mr. Minatee: I'm sorry, I disagree with you. I wholeheartedly disagree with you. First of all, the two most important assets of our community are our people and our churches. And we feel strongly about that.
We recognize that any zoning restriction based on the content of the signs would implicate First Amendment concerns, as expressed by the United States Supreme Court in Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed. 2d 341 (1980). However, the zoning ordinances being applied to Steen's application are content-neutral limitations on the height of structures and their encroachment on property lines.
Prior to voting on Steen's variance applications, a Board member made the following statement:
I realize we can't deal with the content of the individual billboards, or the signs. But we do have to deal with the fact that this billboard will require three variances, three "C" variances, which is a major deviation from our master plan. And based on the information that I've heard here tonight, I would recommend that we deny those three "C" variances.
Additionally, the Board's written resolution does not discuss the possible content of the signs as a factor considered in its denial of the variances. Because the Board relied solely on the impact the signs would have on the aesthetics of the community in the resolution, there is no basis for us to find that the Board acted improperly on First Amendment grounds.
Steen argues that the zoning regulations being applied to its variance requests are inapplicable. In his May 31, 2006, opinion concerning Steen's first action in lieu of prerogative writs, Judge Orlando found that "the general requirements [of the zoning plan] apply to all signs, otherwise . . . you could put up a 500-foot sign and there would be no regulation." We agree with Judge Orlando and read Ordinance § 96-78(J), which imposes the seventeen-foot height restriction on signs, as "applicable to all zones except as specifically limited."
We do not disturb Judge Orlando's finding that the Board is estopped from applying any facie size ordinance to Steen's proposal because the Board "forgot to apply it." Additionally, we recognize that the Board conceded both in oral argument before us and before the Law Division, that "[a]n advertising sign is -- would be permitted on that lot, the only issue is the size and dimensions of that sign." We expect that the Board will adhere to that statement should Steen propose another configuration.
Finally, we decline to reach the issue of whether the Board's decision constitutes an inverse condemnation as the issue was not raised below and is not properly before us on appeal. Pressler, Current N.J. Court Rules, comment on R. 2:6-2 (2008) ("[I]ssues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." (citing County of Essex v. First Union Nat. Bank, 186 N.J. 46, 51 (2006); State v. Arthur, 184 N.J. 307, 327 (2005))).
In conclusion, we affirm the order dismissing Steen's complaint in lieu of prerogative writs for the reasons set forth in Judge Orlando's opinion as amplified above.