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CBS Outdoor, Inc. v. Borough of Lebanon Planning Board/Board of Adjustment

414 N.J. Super. 563, 999 A.2d 1151 (App. Div. 2010)

ZONING; CONDITIONAL USES — The proper standard for determining whether the denial of a conditional use is appropriate is whether the site is appropriate notwithstanding a deviation from one or more conditions imposed by the zoning ordinance.

A company submitted a development application to install a billboard near a highway. At the time of its application, the municipality’s zoning code prohibited billboards in that area. Therefore, the company applied for a use variance and a height variance. After the application was filed, but before the hearings took place, the municipality adopted a new ordinance permitting billboards as a conditional use. The company therefore amended its application to seek the less stringent conditional use variance. It also sought a variance from setback requirements and site plan approval. The zoning board denied the company’s application for a conditional use variance on the basis that the company’s lighting proposal for the billboard did not meet the ordinance’s lighting requirements. It rejected the company’s request to grant preliminary approval and then allow the company to return with additional lighting design to alleviate the board’s concerns. The zoning board found that not only did the company fail to address the lighting concerns, but it failed to meet the required positive and negative criteria required for a use variance. It found that the company did not demonstrate any positive benefits provided by such a large deviation from the ordinance’s requirements and it did not balance the positive and negative effects of the variance. Further, the zoning board found that the company did not show how the negative effects, such as diminished aesthetics, an increase in noise, and the cutting of vegetation were to be mitigated.

The company sued and the lower court reversed and remanded. It held that the zoning board’s concerns about noise and diminished aesthetics were outweighed by the overriding policy judgments of the municipality when it adopted the ordinance allowing billboards as a conditional use. In essence, it concluded that the zoning board did not properly analyze the application. It also dismissed the zoning board’s concerns about the lighting as a reason to deny the development application and it remanded the matter to the zoning board to review in the context of its site plan review.

The zoning board appealed. While the appeal was pending, the municipality adopted a new ordinance prohibiting the construction of new billboards. That new ordinance effectively revoked the prior ordinance allowing billboards as a conditional use. In addition, the zoning board discovered that the prior ordinance was never filed with the county planning board, and therefore, never effective. The zoning board argued that because the conditional use ordinance was never effective, the company’s application had to be determined under the more stringent standards. The lower court, during the remand hearing, deemed the conditional use variance ordinance effective for this case notwithstanding the fact that it was never filed with the county planning board. It also found, that, for the purposes of the company’s application, the new more restrictive zoning ordinance was not effective.

On further appeal, the Appellate Division reversed and remanded. The Court noted that the proper standard for determining whether the denial of a conditional use variance is appropriate is the standard set forth in Coventry Square Inc. v. Westwood Zoning Bd.of Adj., 138 N.J. 285 (1994). According to that case, an applicant must demonstrate that the site is appropriate notwithstanding deviations from one or more conditions imposed by the zoning ordinance. The zoning board must determine whether the proposed use will cause such damage to the character of the neighborhood that it would constitute “substantial detriment to the public good.” In this case, the Court found that the lower court relied on a methodology that required a balancing test to determine if the positive criteria outweighed the negative criteria. It also trivialized the zoning board’s concerns about the lighting and determined that they could be addressed at site plan approval. The Court found that the lower court should have considered whether or not the company satisfied all aspects of the Coventry Square test, which includes whether or not the site was appropriate notwithstanding the deviations with respect to the lighting plan. It was not appropriate for the lower court to dismiss them as relevant concerns with respect to the approval of the variance on the assumption that it would be worked out later in the site plan approval process.


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