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Galaxy Outdoor Media, LLC v. Zoning Board of Adjustment of the Borough of Lodi

2005 WL 1252320 (N.J. Super. Law Div. 2005) (Unpublished)

ZONING; USE VARIANCES—Merely showing that a chosen location for a prohibited use is an apt one is not sufficient grounds to deserve a use variance because any similarly apt site could likewise qualify.

A municipality’s zoning ordinance prohibited all billboards. A billboard company applied to the zoning board of adjustment “for several variances - - including two use-type variances - - to permit [the billboard company] to establish and operate a two-faced single-pole billboard on commercially zoned property” along a state highway. The site was in an area developed for commercial uses, but there were some residential uses in close proximity. At the public hearing, no one testified in opposition of the application. The billboard company’s president “testified generally to the broad details of the application and explained the rationale for selecting the location and the manor of operating the billboard. A professional engineer gave particular attention to how light would illuminate the sign. Essentially, his uncontradicted testimony was that the billboard company was designing the lighting to minimize glare and to illuminate only the billboard’s messages. The billboard itself would employ “light absorbing materials in the face of the signs.” The lights would have shields and the billboard company would operate them at reduced intensity. A professional planner testified that the site was particularly suited to the proposed use. Smaller signs of up to the same height as the proposed billboard were already permitted in the zone. There was no testimony from the planner, however, as to “why the particular location was different from other properties along” the same highway or “why this parcel was particularly suited for [the billboard company’s] proposed use, as opposed to just being a good fit.” Similar testimony was entered on behalf of the billboard company as to the appropriateness of the site and to the effect that “there would be no negative impact upon the residential neighborhood to the south of the site.” The zoning board denied the application, finding that the billboard company “had not met its burden of offering a satisfactory ‘enhanced quality of proof’ that the requested use variances were not consistent with the [municipality’s] Master Plan.” The board found that there were no special reasons to grant the use variances. It also found that there would be a substantial public detriment from the “light emitted by the billboard and spillage onto nearby properties.” The billboard company sought relief from the Law Division.

The Court reviewed the underlying law and paid special attention to its obligation to give deference to the local agency’s factual determinations. In fact, it pointed out that “[c]ourts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning.” Essentially, a court should only overturn a decision of a zoning board if it identifies that decision as being arbitrary, capricious, or unreasonable. According to the Court, “[t]here are five broad areas of official misbehavior that may be found to be arbitrary, capricious, or unreasonable: 1. Actions that are whimsical or irrational, especially those that produce a spontaneous gasp or boisterous chortle in the reviewing court. ... 2. Actions that amount to a palpable abuse of discretion, typically relating to procedural matters. ... 3. Decisions that are not supported by competent evidentiary material or are based upon an absence of competent evidentiary support in the record. ... 4. Decisions that are founded upon an error, misapplication, or misunderstanding of law. ... [or] 5. Decisions that are inconsistent with the local agency’s mandate as articulated by its enabling legislation’s express or implied legislative policies.” According to the Court, the exceptions are infrequently applied because the presumption of validity given to a zoning board “goes deep.”

“The linchpin of [the billboard company’s] claim in this case [was] whether it demonstrated the so-called positive and negative criteria.” According to the Court, because the proposed use was commercial in nature, “and not inherently beneficial,” the billboard company’s task was “daunting.” In addition to the positive and negative criteria, the billboard company needed to “demonstrate through an enhanced quality of proof and clear and specific findings by the Board that the use variance sought [was] not inconsistent with the intent and purpose of the Master Plan and Zoning Ordinance.” Just because property is particularly suitable for a proposed use does not equate to satisfy the “special reasons.” In this case, the record was “devoid of proof demonstrating that the general welfare would be advanced due to the location of the billboard at the site in question.” There was no proof that the general welfare would not have been similarly advanced by locating the billboard at another location. At best, the billboard company showed that the site was “an apt location for a billboard,” but such status did not entitle the billboard company to a use variance. If that were sufficient, then any site along the highway would have been entitled to earn a use variance.

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