On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-000161-08.
The opinion of the court was delivered by: Jonathan N. Harris, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued June 15, 2010
Before Judges Stern, Sabatino, and J. N. Harris.
This is a billboard case. It involves an appeal from a final judgment in an action in lieu of prerogative writs that reversed defendant's denial of conditional use variances for the construction of that billboard. It implicates three difficult, intertwined questions of land use law: (1) what are the standards for a conditional use variance when linked with final site plan approval; (2) what is the effect of a municipality's lengthy failure to file a development regulation--here, a zoning ordinance amendment--with a county planning board pursuant to N.J.S.A. 40:55D-16; and (3) does the time of decision rule apply where a municipality adopts a later ordinance attempting to repeal the unfiled development regulation. After a careful review of the entire record before us, we affirm in part; reverse in part; and provisionally remand the matter to the local land use agency for further appropriate proceedings.
On November 16, 2006, plaintiff CBS Outdoor, Inc. (CBS) submitted an initial development application for an outdoor, off-premises advertising sign--a billboard--to defendant Borough of Lebanon Planning Board/Board of Adjustment (the Board).*fn1
Variances were sought pursuant to N.J.S.A. 40:55D-70(c) and (d), together with final site plan approval. The proposed billboard was to be located within Lebanon's Commercial Research Office Manufacturing/200,000 Zone (COMM-ROM/200,000) on a parcel of land along the south side (easterly direction of travel) of Interstate Route 78. Months before the development application was filed with the Board, plaintiff had obtained the requisite conditional permit for the proposed billboard from the New Jersey Department of Transportation. See N.J.A.C. 16:41C-1.1 to -10.4.
The site of the projected billboard was already being used for a commercial use, an independently-owned self-storage facility and office.*fn2 CBS proposed to lease a vacant portion of the property closest to the highway and thereupon erect a billboard consisting of a columnar support structure to hold two sign faces aloft fifty-five feet, with each sign's perimeter dimensions planned for fourteen feet in height and forty-eight feet long. According to the final sign lighting detail plan submitted by CBS, each of the two billboard signs would each be illuminated by five 400-watt lamps mounted at the bottom, facing upwards, located three feet below the face of the sign and six feet away from it.
At the time of CBS's first filing with the Board, the application sought two (d)-series variances pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163: a (d)(1) use variance pursuant to N.J.S.A. 40:55D-70(d)(1), and a (d)(6) height variance pursuant to N.J.S.A. 40:55D-70(d)(6). These (d)-series variances were required because at the time of the initial application, the Lebanon Borough Land Use Ordinances (1983, Revised 2004), specifically § 7.04, prohibited billboards in the pertinent zoning district.
In April 2007, five months after the development application was filed, but prior to the commencement of public hearings before the Board, the Borough of Lebanon adopted Ordinance No. 2007-04. This amendment to Lebanon's zoning regulations permitted the establishment and operation of billboards as a conditional use in two of the municipality's zoning districts, including the COMM-ROM/200,000 district where the billboard at issue would be located. The parties would only discover some time later--indeed, more than two years later-- that Ordinance No. 2007-04 had never been filed with the Hunterdon County Planning Board in accordance with N.J.S.A. 40:55D-16.
When CBS learned of the municipality's adoption of Ordinance No. 2007-04, CBS amended its pending development application, to now seek only conditional use variances pursuant to N.J.S.A. 40:55D-70(d)(3), along with site plan approval. The amended development application sought variance relief from the following specific setback discordances:
Regulation Required Proposed § 7.08(2)(a)(1)(c): Minimum setback of post/face of billboard set back from all property lines at least the same distance as the height of the structure.
§ 7.08(2)(a)(2)(e): Minimum setback from all points of the billboard sign face from any structure.
Of relevance to this appeal, CBS did not seek conditional use variances from the following lighting standards and specifications in Ordinance No. 2007-04, arguably because the applicant believed that the development application satisfied each:
Regulation Required § 7.08(2)(a)(4)(e): Illumination of sign face.
Illumination shall be restricted to sign face only. Visors or other control devices shall be used to eliminate sky glare, light trespass or spillover light. § 7.08(2)(a)(4)(h): Lighting of the billboard.
Shields, visors, or other devices shall prevent glare and spillover of light beyond the property lines and prevent disturbance of the viewing resolution of a night sky, sky glare or glow.
The matter was heard before the Board on May 9, July 11, and September 17, 2007. During the course of these hearings, the Board was presented with testimony of three witnesses by CBS: Christopher Wiss, a corporate representative of CBS who spoke about the background of the development application; Henry Banker, a tree expert who discussed the impact the billboard would have on nearby trees, and opined about what vegetation would have to be cut down and eliminated in order to build the billboard; and Alex Zepponi, a professional engineer and planner who explained the construction details and planning issues involved in the development of the billboard. Indeed, Zepponi was heavily questioned about planning issues, particularly lighting concerns, and CBS's compliance with the balance of Ordinance No. 2007-04's conditional requirements. He was also asked to consider and explain the need and justification for the requested conditional use variances.
It was not until the third and final hearing on September 17, 2007, that Zepponi submitted a revised site plan drawing that was intended to specifically address the serious lighting queries raised by the Board, particularly those regarding the lighting spillover stemming from the placement of lighting fixtures at the base of the billboard.*fn3 Zepponi's testimony confirmed what the illumination chart had plainly disclosed: (1) there was light spillover within six feet of the top of the billboard of between twelve and twenty-three foot-candles; (2) "[i]f you go to the left and right of the [bill]board six feet you're down in the area [of] seventeen foot[-]candle[s] to the right and approximately [nine], [ten] foot[-]candle[s] to the left;" and (3) "at the bottom of the [bill]board essentially within two feet you're at zero. There are a couple [of] points 0.1 foot[-]candles within two feet of the bottom of the [bill]board."*fn4 The revised site plan drawing did not explicitly show shielding, visors, or baffles along the top or sides of the billboard faces to constrain the light to the billboard faces alone, despite the specific requirement for such in the ordinance.
Because the revised site plan drawing with the specific illumination data had only been first presented to the Board at the September 17, 2007 hearing, the Board's engineer, in advising the Board, indicated that "[i]t's a little hard for me to give you any feedback on those lighting numbers not having seen it subsequent. My gut is [twenty-three] foot[-]candle[s] [six] feet off the sign is pretty high." Zepponi responded to the comment by conceding that "halo" might occur if there were "some particulates in the area which you're going to get from any light source." However, Zepponi contended, "this is the latest, best designed light fixture that's currently commonly available." Instead of offering to provide tangible evidence of how CBS intended to comply with all of the ordinance's lighting conditions and satisfy all of the Board's illumination concerns prior to the Board's vote on the development application, Zepponi casually indicated that the billboard's lighting fixtures could be fitted with shields to prevent light spillover. The Board's engineer, however, suggested that the Board needed to see specific details about such a refinement prior to its vote, in order to determine if all of the required standards and specifications of the ordinance were satisfied.
CBS instead suggested that the Board grant "preliminary approval now and we can come back with some additional design, whatever the Board would want us to do." Tellingly, CBS's attorney stated the following in his final summation to the Board, just prior to the vote on the development application:
But, you know, signs are designed to be seen and it's nearly impossible to keep [illumination] exactly on the four corners [of] the sign. So there would be some minor spillage. Where is some minor spillage down below. We can restrict ...