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H.A. Steen Industries, Inc. v. Borough of Lawnside Zoning Board of Adjustment

A-3132-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; BILLBOARDS — A land use board is permitted to subject billboards to reasonable regulations to minimize adverse aesthetic impacts so long as its decision is not based on the content of those signs.

A company owned an irregularly shaped lot within a business zone. The lot’s irregular shape was caused when the New Jersey Turnpike Authority acquired part of the original parcel from its prior owner. The rear of the lot abutted the Turnpike. The owner claimed that the configuration and size of the property rendered it incapable of supporting any conforming building within the zone. It proposed to remove the lot’s existing structure and replace it with a monopole to hold billboards facing the highway. The owner’s request for a use variance to permit construction of the monopole with two 12 by 28 foot signs placed on top of one another was denied by the zoning board. The owner appealed.

The Law Division held that billboards were a permissible use in the business zone and remanded the application to the zoning board for consideration on the merits. The owner then altered the proposed billboard’s design by agreeing to place the two sign faces next to one another rather than on top of each other.

During the remand hearing, a company official testified that the billboard signs only came in standard sizes and that any sign would need to conform to industry standards. The municipality’s professional planner testified that the billboard would adversely affect the municipality’s aesthetics. The board denied the variance request, holding that no explanation was given by the owner as to why a smaller sign would not suffice. It concluded that the testimony from the municipality’s planner, to the effect that the height and scale of the sign would be detrimental to neighbors, proved the signs would undermine the overall goals of the Master Plan. The owner appealed the board’s decision once again.

This time, the Law Division affirmed the zoning board’s decision. It found that the board’s acceptance of the opinion of the municipality’s professional planner and its rejection of the testimony of the owner’s experts was permissible because such a determination was reasonably made. It noted that the owner’s expert made an erroneous assumption that another sign, which he compared to the proposed sign, was located within the boundaries of the municipality. It also held that the dimensions and size of the lot warranted a smaller sign and that the proposed size negatively impacted the aesthetics in the municipality.

The owner appealed to the Appellate Division, but unsuccessfully. The Court held that the zoning board’s findings were not arbitrary or capricious or a manifest abuse of its discretionary authority and should be upheld. It noted that a board’s decision to accept or reject witness’s testimony, when reasonably made, is conclusive on appeal. The Court also ruled that a board is permitted to subject billboards to reasonable regulation to minimize adverse aesthetic impacts. It rejected the owner’s claims that the board’s denial constituted a violation of the owner’s First Amendment rights relating to the content of the signs. It also found that the applicable zoning ordinance had content-neutral limitations on the height of structures and their encroachment on property lines. The board’s decision never discussed the content of the signs as a factor considered in its denial of the variances. Further, the Court agreed with the lower court that the ordinance, which imposed a height restriction on signs, was applicable to all zones (except as specifically limited) and was thus applicable to this variance request. Finally, the Court refused to rule on the issue of whether the board’s holding amounted to an “inverse condemnation” because the owner never raised that issue before the lower court.

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