On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4268-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Waugh and Newman.
Plaintiff Elray Outdoor Corporation (Elray) appeals the Law Division's dismissal of its complaint, which challenged (1) the provisions of defendant City of Englewood's (Englewood) zoning ordinance limiting the placement of billboards in Englewood solely to the Office Industrial (OI) zone and then only as a conditional use; and (2) defendant Board of Adjustment's (Board) denial of its application for a use variance for the construction of a billboard at 60 Cedar Lane in Englewood's Light Industrial (LI) zone. We reverse as to the constitutionality of the ordinance, but affirm as to the merits of the Board's decision not to grant a variance.
We glean the following factual and procedural background from the record.
Englewood's zoning ordinance originally prohibited all billboards. In 1995, Gannett Outdoor Co. brought suit challenging the constitutionality of that prohibition, in addition to challenging the Board's denial of its application for a use variance to construct a billboard in the OI zone. The litigation was settled. In 1996, as a result of the settlement, Englewood amended its zoning ordinance to permit billboards in the OI zone, but only as a conditional use.
The relevant conditions of the revised ordinance are as follows:
(i) No more than one (1) off premises advertising structure (double sided) shall be permitted on any lot.
(ii) No part of any off premises advertising sign shall be located within 1,000 feet of a residential district, nor within 1,000 feet of another off premises advertising sign.
(iii) No part of any off premises advertising sign shall be located more than 100 feet from a roadway having a regularly posted speed limit of fifty (50 MPH) miles per hour or more.
(iv) No part of any off premises advertising sign shall be higher above grade of the adjoining roadway than 35 feet.
(v) The sign area shall not exceed 528 square feet, per sign face, nor shall any sign face exceed a vertical dimension of 14 feet nor a horizontal dimension of 44 feet.
According to the enacting resolution, the revised ordinance was the city's attempt to "balance First Amendment guarantees to free speech with legitimate municipal concerns in the area of aesthetics and traffic." Englewood intended to limit billboards to "within 100 fee[t] of Route 4" in order "to preserve the residential qualities of the City of Englewood and to limit the impact of such off-premises advertising signs to a relatively small area of office and industrial uses." There is currently only one billboard located in the OI zone along Route 4. The parties disagree as to whether another billboard can be placed there without receipt of a conditional-use variance from one or more of the conditions noted above.
Elray seeks to place a billboard on property located in Englewood's LI zone,*fn1 adjacent to Interstate 95 (I-95), motorists on which are the target for the advertising on the proposed billboard. Elray began its efforts to construct the billboard in the LI zone by applying to the New Jersey Department of Transportation (DOT) for an outdoor advertising permit.
DOT is authorized to issue such permits pursuant to the Roadside Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -28. The statute is intended to: balance the promotion of the safety, convenience and enjoyment of travel on the highways of this State with the protection of the recreational value and public investment therein, to preserve and enhance the natural scenic beauty and aesthetic features of the highways and adjacent areas while promoting development and economic vitality and facilitating the flow of speech and expression, of which providing messages of commercial, public and social value conveyed through the medium of roadside signs and outdoor advertising is an important part. [N.J.S.A. 27:5-6(a).]
DOT's implementing regulations prohibit signs that interfere with a driver's "ability... to have a clear and unobstructed view of streets or highways ahead," N.J.A.C. 16:41C-3.1; that are within 1,000 feet of another sign; or have an advertising area greater than twenty-five feet by sixty feet. N.J.A.C. 16:41C-8.7(b)(3), (4). In addition, such signs must be located in commercial or industrial zones. N.J.S.A. 27:5-11. DOT issued the permit to Elray in September 1996.*fn2
In either late 2005 or early 2006, Elray applied to the Board for the use variance at issue in this case. The proposed billboard's height would be eighty-five feet, rather than the maximum thirty-five feet allowed for billboards in the OI zone. The additional height is needed, according to Elray, because the I-95 roadway is elevated and bordered by a sound barrier forty-seven feet high.*fn3 The billboard would be 640 feet from the closest residential area, rather than the 1,000 feet required for billboards in the OI zone. It would be adjacent to a section of I-95 that has a posted speed limit of forty miles per hour,*fn4 rather than the fifty miles per hour or more mentioned in the ordinance for the OI zone. Finally, the billboard would be within one-hundred feet of I-95.
The proposed two-sided, V-shaped billboard, measuring twelve feet high by forty-four feet wide, would be mounted on a monopole. The base of the billboard would be twenty feet above the top of the seventeen-foot sound barrier along I-95. It would be located on the north side of the highway, along the westbound lanes.
The Board conducted a hearing on the application in February 2006. At the end of the hearing, members of the Board discussed their opposition to the application, citing particularly the issue of visibility from the residential neighborhood and the lack of "special reasons" that would justify the variance. The Board unanimously denied the application, with one abstention.
In a resolution issued on April 24, 2006, the Board memorialized its decision, in part, as follows:
4. The site is not particularly-suited for the proposed use because it is located in relatively close proximity (640 feet) to residential properties in the [One-Family Residence District] and [Multiple Residence District] Zone. It is located across the street from the OI Zone, where residential uses are permitted. While billboards are not a permitted use in the LI Zone at all, where they are permitted in the OI Zone, a 1,000 foot separation from residential uses is required. New Jersey DOT regulations include similar separation requirements.*fn5 While the conditional use requirements of the OI Zone are not necessarily applicable, they are a guide for the Board in evaluating this application. The Board finds that proximity to residential areas is a very significant factor, and is one condition that is not met by this application.
5. The encouragement of economic growth, which may well be a DOT objective, is not one of the purposes of zoning, either directly or indirectly. Virtually every commercial application presented to a zoning board promotes economic development. Furthermore, economic growth is not related to the manner in which a particular piece of land is used. The promotion of a State objective, in and of itself, does not necessarily advance one of the purposes of zoning. This factor does not constitute a "special reason" for the granting of a use variance. Finally, while it could be assumed that billboards might have an effect on economic development, there was no testimony to that effect. A link between economic development and the proposed billboard is speculative, at best.
6. The proofs relating to visibility from residential areas, probably the likeliest detrimental impact, were not persuasive. Only a few photographs were taken, no computer imaging was provided, and no comprehensive "view" analysis was provided. There was no testimony at all concerning lighting, and how the billboard will be visible at night. The proposed billboard, by design, is a large structure, designed to achieve maximum visibility to motorists along Route 95 in order to accomplish its intended purpose. The applicant did not meet its burden of proving a lack of detrimental impact to the public good, and the purpose and intent of the zone plan and ordinance.
7. Furthermore, the applicant did not establish that relief can be granted and reconciled with the Master Plan and Ordinance. The City of Englewood has a number of zoning districts, each with very specific requirements. Route 95 has existed for many years, and the Board finds that the Planning Board and Mayor and Council were undoubtedly aware of its existence when the Master Plan and Zoning Ordinance were adopted. There has been no significant change in the character of the community relevant to this application since that time. The use is one that is contemplated, and permitted with conditions, in another area of the municipality. The Board can only conclude that the failure of the Mayor and Council to make provision for the installation of a billboard on this property, or to make the property part of the OI Zone, was ...