Diller and Fisher Co., Inc. v. Architectural Review Bd. of Borough of Stone Harbor

• Decision Date: 09 November 1990
• Citation: 246 N.J.Super. 362,587 A.2d 674
• Parties: DILLER AND FISHER COMPANY, INCORPORATED, a corporation of the State of New Jersey, Diller and Fisher Company, Incorporated t/a Prudential Diller and Fisher, Realtors, Diller and Fisher Office Condominium Association, an unincorporated association, and William J. Diller, Jr., Plaintiffs, v. ARCHITECTURAL REVIEW BOARD OF the BOROUGH OF STONE HARBOR and Mayor and Council of the Borough of Stone Harbor, Defendants.
• Court: New Jersey Superior Court

Page 362

246 N.J.Super. 362

587 A.2d 674

DILLER AND FISHER COMPANY, INCORPORATED, a corporation of the State of New Jersey, Diller and Fisher Company Incorporated t/a Prudential Diller and Fisher, Realtors Diller and Fisher Office Condominium Association, an unincorporated association, and William J. Diller, Jr., Plaintiffs, v.ARCHITECTURAL REVIEW BOARD OF the BOROUGH OF STONE HARBOR and Mayor and Council of the Borough of Stone Harbor, Defendants.

Superior Court of New Jersey, Law Division Cape May County.

Nov. 9, 1990.

Vincent L. Lamanna, Jr., Sea Isle City, for plaintiffs.

W.M. Balliette, Jr., for defendants(Cafiero & Balliette and Balliette, Wildwood, attorneys).

CALLINAN, J.S.C.

Plaintiffs bring this motion for summary judgment seeking a determination that sections XX and 15-13.6 of the Stone Harbor Revised General Ordinances empowering the Architectural Review Board of the Borough of Stone Harbor are violative of the Municipal Land Use Law (hereinafter referred to as "MLUL").The holding here is that the ordinances are invalid.

Plaintiffs are the individual owner and the corporate entities that occupy the commercial premises located in a commercial condominium complex at 9614 Third Avenue, Stone Harbor, New Jersey.The matter arises out of plaintiffs' attempt to change the wording on a sign displayed on the front of plaintiffs' commercial premises.In attempting to seek permission to apply a one-quarter-inch plywood facing containing changed logo and advertising language to the existing sign-board, plaintiffs were directed to apply to the architectural review board pursuant to the ordinances of the Borough of Stone Harbor.

Ordinance15-13.6(b)8 states:

All proposed signs and billboards, 1 square foot or larger, except for sale signs, rent signs and general contractor's signs permitted during construction, shall be submitted for review and final approval by the Architectural Review Board of the Borough prior to their use.Signs listing hours, names, directions, information, regulations, etc., may be approved following review by the Architectural Review Board.Signs less than one square foot need not be submitted for approval.However, the Board shall have the right to review these at the Board's discretion.

Plaintiffs, accordingly, applied for, and were denied, permission to change the sign.This decision was appealed to defendant Borough of Stone Harbor's governing body which affirmed defendant architectural review board's decision.This appeal follows.

The precept has long been established that courts delicately exercise their powers to declare a statute unconstitutional.Harvey v. Board of Chosen Freeholders of Essex County, 30 N.J. 381, 153 A.2d 10(1959).That natural reluctance also applies when the exercise is to review a municipal ordinance's validity.

A municipal ordinance should be cloaked with a strong presumption of constitutionality.State v. Ulesky, 100 N.J.Super. 287, 301, 241 A.2d 671(Cty.Ct.1968), rev'd on other grounds54 N.J. 26, 252 A.2d 720(1969).That presumption is especially strong at the trial level.Id.100 N.J.Super. at 295, 241 A.2d 671.As stated in Ulesky:

Therefore, in order for this court to determine the ordinance under consideration to be invalid, it must be shown to be unconstitutional or an abuse of the power of the municipality beyond a reasonable doubt....[Id. at 296, 241 A.2d 671.]

The court in Sea Isle City v. Caterina, 123 N.J.Super. 422, 303 A.2d 351(Cty.Ct.1973) further discusses the burden of proving the constitutionality or unconstitutionality of a municipal ordinance.The court in that case stated:

This court's determination of the constitutionality or unconstitutionality of any municipal ordinance must be guided by certain principles governing the burden of proof to establish unconstitutionality.The first principle is that a municipal ordinance will be presumed to be reasonable in the absence of clear proof to the contrary.[Citation omitted] Furthermore, the ordinance is cloaked with a strong presumption of constitutionality, and it should not be declared void by a County Court or any other court of limited jurisdiction unless its repugnancy to the Constitution is clear beyond a reasonable doubt.[Citation omitted] That is, where there are two possible interpretations, that which will uphold the ordinance is to be adopted in preference to one under which the ordinance would be unconstitutional.[Citation omitted] In fact, the cardinal principle of statutory construction must be to save and not to destroy, and the duty of the court is to strain if necessary to save an act or ordinance, not to nullify it.[123 N.J.Super. at 428, 303 A.2d 351;citation omitted]

The commendable purposes for which Stone Harbor created the architectural review board are set forth in paragraph 20-1 of chapter XX:

The governing body finds that excessive uniformity, dissimilarity, inappropriateness or poor quality of design in the exterior appearance of buildings adversely affects the desirability and appearance of the business and light industry districts, and by so doing impairs the benefits of occupancy of existing property in these areas, impairs the stability and value of both improved and unimproved real property in such areas produces degeneration of property in such areas with attended deterioration of conditions affecting the health, safety, welfare and morals of the inhabitants thereof, and destroys a proper relationship between the taxable value of real property in such areas and the cost of municipal services provided therefore.

The ordinance contemplates that the architectural review board would "review all applications for construction permits which will affect the exterior of existing structures or structures to be constructed within the business and light industry districts."See§ 20-2.

So it is that anyone "who intends to decorate the exterior of a building or structure located within the business and light industry districts ... shall be required to obtain permission therefore from the Board of Architectural Review prior to the commencement of such work."

More pertinent to this case, § 20-5 of the ordinance provides that "every application ... for a building permit ... or for a sign to be constructed or installed in such business and light industry districts, shall be referred by the construction official to the Board of Architectural Review within three working days of the date of the receipt of the application."Emphasis supplied.

Section 20-8 bestows upon the architectural review board "the authority to examine, review, approve or disapprove, because of location, quality and appropriateness of design, applications for permits for signs in the business and light industry districts."

Section XX is an Improper Arrogation of Authority Properly

Vested in the Stone Harbor Zoning Board.

A municipality receives its power directly through the State by virtue of statutory grants of authority.SeeRiggs v. Long Beach Tp., 109 N.J. 601, 610, 538 A.2d 808(1988).In the field of zoning and planning, those powers are contained in that body of law known as the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.(hereinafter referred to as "MLUL").

In a municipality, only municipal planning boards and zoning boards of adjustment are vested with power to rule on zoning and planning matters.SeeN.J.S.A. 40:55D-23 et seq. and -69 et seq.These statutory powers may not be adulterated or interfered with by acts of local governing bodies or officials.SeeSwimming River Golf & Country Club v. New Shrewsbury, 30 N.J. 132, 136-137, 152 A.2d 135(1959);Smith v. Paquin, 77 N.J.Super. 138, 185 A.2d 673(App.Div.1962);Trinity Baptist v. Louis Scott Hold., 219 N.J.Super. 490, 530 A.2d 828(App.Div.1987).Cf.Parisi v. North Bergen Mun. Port. Authority, 105 N.J. 25, 519 A.2d 327(1987).There are some minor exceptions to this rule, but such exceptions are statutory.ISee N.J.S.A.40:55D-109(Historic Preservation Commissions) and N.J.S.A. 40:56A-1 et seq.(Environmental Commissions).

Plaintiffs argue that the creation of an architectural review board, such as that established by the Borough of Stone Harbor, and vesting it with the powers enunciated in the ordinance is outside the ambit of the statutory authority conferred upon municipalities pursuant to the MLUL.Plaintiffs cite Piscitelli v. Scotch Plains Tp., 103 N.J.Super. 589, 248 A.2d 274(Law Div.1968)andNeuberger Estate v. Middletown Tp., 215 N.J.Super. 375, 521 A.2d 1336(App.Div.1987) in support of this conclusion.

Piscitelli involved a case where the Township of Scotch Plains established an architectural review board and required that all applicants for building permits or signs submit plans to the board for approval.There the trial court disposed of the matter by granting summary judgment in favor of plaintiff holding:

Matters committed to the board of adjustment by statute and the exercise of its powers, may not in any way be circumscribed, altered or extended by the municipal governing body....[103 N.J.Super. at 596, 248 A.2d 274.]

The court further noted that:

[D]efendants, by the ordinance in question, seek to aesthetically control construction in the municipality independently of the zoning law.The ordinance in effect imposes an additional condition precedent to the issuance of a permit.By that is meant that if a proposed use conforms to the zoning code, the additional burden is placed that it must conform to surroundings aesthetically.In effect, the ordinance places aesthetic value first and creates an unjustifiable condition precedent to the issuance of a certificate.[Id. at 597, 248 A.2d 274.]

The Neuberger case involved Middletown Township's establishment of a landmark commission to review buildings and structures to determine if they should be designated as historic.Neuberger basically held that such a delegation of authority was an indirect means of exercising...