Elco v. R.C. Maxwell Co.

• Decision Date: 15 July 1996
• Parties: Peter E. ELCO, Plaintiff-Respondent, v. R.C. MAXWELL COMPANY, Defendant-Appellant, and City of Absecon Zoning Board of Adjustment, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 118

292 N.J.Super. 118

678 A.2d 323

Peter E. ELCO, Plaintiff-Respondent, v. R.C. MAXWELL COMPANY, Defendant-Appellant and City of Absecon Zoning Board of Adjustment, Defendant.

Superior Court of New Jersey Appellate Division.

Argued May 15, 1996.

Decided July 15, 1996.

Jack Plackter, Atlantic City, for appellant (Horn, Goldberg, Gorny, Daniels, Plackter & Weiss, attorneys; Nicholas F. Talvacchia, on the brief).

Salvatore Perillo, Linwood, for respondent (Perillo & Rosenberger, attorneys; Mr. Perillo, on the brief).

Before Judges KING, LANDAU and KLEINER.

The opinion of the court was delivered by

KING, P.J.A.D.

I.

On June 29, 1994 appellant R.C. Maxwell Company (Maxwell) applied for use variance relief under N.J.S.A. 40:55D-70d ¹ and for site-plan approval to permit it to construct a billboard in the City of Absecon (City) on Route 30, the White Horse Pike. The Absecon Zoning Board of Adjustment (Board) held a hearing on Maxwell's application on September 19, 1994. The Board voted 5 to 2 in favor of granting the variance.

On September 7, 1994 Absecon Mayor Peter Elco, individually and in his official capacity as mayor, filed a complaint in lieu of prerogative writ challenging the Board's grant of the use variance. Elco claimed that Maxwell had failed to demonstrate adequate special reasons to support its request for a use variance; that the Board failed to make adequate findings with respect to special reasons; and that the proposed signs would create an undesirable visual environment and contradict the purposes of the local zoning plan.

On June 14, 1995 Judge Seltzer reversed the Board's grant of the use variance. The judge ruled that the Board had based its decision to grant the variance solely on economic inutility as the special reason. He concluded that the Board did not have the authority to consider the impact of nonmunicipal or state environmental regulations, namely the 1993 amendments to the Coastal Area Facility Review Act (CAFRA II), N.J.S.A. 13:19-1 to -19, on Maxwell's ability to develop the property. The judge did not rule on the Board's finding that Maxwell had established other special reasons for the variance, namely, that the proposed use would further the zoning goal of preserving adequate air, light and open space and that the site was particularly suitable. Maxwell appeals, asking us to reverse and reinstate the Board's grant of the use variance. We decline and affirm.

Maxwell, a commercial sign company, was founded in 1894 and has owned the property involved since at least the 1950's. The proposed site for the sign was Block 171.01, Lot 14 on the City Tax Map (the property). The property is located adjacent to U.S. Route 30, the White Horse Pike, in the C-3 Marine Commercial District (District). Permitted uses in the C-3 District include marinas and other water-oriented uses. Free-standing billboards are not a permitted use within the District. The City's Developmental Ordinance states that the purpose of the Marine Commercial District is to "encourage water-oriented business development which is compatible with the predominant residential nature of Absecon's waterways...." The 1.6-acre property has a frontage of 450 feet on Route 30. Its depth ranges from 100 to 260 feet to the north towards Absecon Creek. The site is currently vacant and covered with vegetation; much of it is wetlands. To the east of the property there is a gas station; to the west, the South Jersey Auto Body Shop and the Boulevard Bait Shop. To the south is a professional office occupied by NuVision Optical; to the north are Absecon Creek and adjoining wetlands. The record is unclear, but apparently there was another gas station/auto-body shop nearby, as well as a vacant building, once proposed as a diner. The proposed sign would be about 600 feet from the edge of the residential developments. There had been two 12' by 20' commercial advertising signs and a large painted display on the property until the late 1950's or mid-1960's. The poster display was used to advertise Hackney's Restaurant in Atlantic City and the two signs were used to advertise unspecified "products and services sold in Atlantic County." The signs and poster display were removed in the 1950's because of storm damage and a poor economic climate. Since then, nothing has been located on the property, even though a "tremendous amount" of traffic passes the site.

The proposed cantilevered billboard structure has two advertising faces, one to the east and the other to the west on Route 30. Each sign would be 14 feet tall by 48 feet long, an area of 672 square feet for each sign. The sign structure would be steel with a single pole. The top of the sign would be elevated thirty feet above grade and the maintenance catwalks on the bottom would be 13 feet above grade. The sign would be anchored to a concrete structure about 15' by 15'. Maxwell's general manager said the signs would require little maintenance. An electrician would check it once a week and Maxwell would paint it once or twice a month.

Maxwell advanced five arguments in support of its application for a use variance: (1) unless the variance is granted, the property will be regulated into economic inutility as not reasonably adapted to any other use, including other nonconforming uses; (2) the application provides sufficient space in appropriate locations for a type of commercial use, promoting one of the purposes of zoning as set forth in the New Jersey Municipal Land Use Act (the Act), N.J.S.A. 40:55D-2; (3) the application will promote the traditional zoning purpose of providing for adequate light, air and open space because it complies with all bulk requirements of the City zoning ordinance; (4) the site is particularly well-suited for the proposed billboard use because of the existence of wetlands; this is an environmentally sensitive site and the billboards will not create any environmental problems; (5) the proposed use will not create a detriment to the public good because there is no impact on surrounding commercial uses or on the City zoning plan.

In voting to grant Maxwell the use variance, Board member Logue stated, "[e]xperts have testified tonight that the zoning, C-3 use, marine commercial development looks to be impossible because of the wetlands. Therefore I feel the applicant qualifies for a special use consideration. It's an ideal location for billboards and there is a previous history of billboards at that location. I see no harm to Absecon residents and our view of the Absecon Creek is still maintained." Also voting "yes," Board member Seher stated,

I believe the applicant has made a credible and compelling presentation. I believe there are specific reasons about economic [in]utility based on the expert testimony and I don't think there's anything detrimental. I think a 40 by 40 feet sign located between a gas station and auto repair shop is not going to impact the view from the Shores nor from the North Shore Road for the residents....

The third and fourth Board members who voted to grant the use variance, Sheeran and Strickland, expressed their essential agreement with the reasons articulated by Board member Seher. The fifth member to vote for the variance, Thomas, gave the longest explanation:

I believe it is not the applicant's fault that we put a C-3 zone where you could never build a marina under the current conditions. The city has to take the responsibility for looking at terms and conditions and doing appropriate zoning. [Maxwell] has come here with a legitimate request which enhances the use from nothing to something ... I would note that in a C-3, you could build something 35 feet high, so on a theory you could put a marina with a 35-foot high sign or rooftop or whatever. I believe this testimony tells me it's only 27 feet high, 13 feet off the ground, 14 feet high. I do not see that anyone living in the Shores area is going to look over there and see that. I've been on the Shores, I've seen a lot worse than the sign that's going to be there. I believe the applicant also said ... that he would put a screen or something. I'll take your word for it that it helps mitigate any possible negative effect. I believe if you look at the photographs going down the Pike you will see ... the sign proposed is much lower than the other structures there are there. I presume coming and going west it would be approximately the same thing. You would see the gas station. I think the sign is being placed so as not to harm any business that is there, whether with lighting or blocking the view and I see no detriment at all to either. I think it enhances the master plan and therefore I vote yes.

The State regulations which Maxwell contended made the tract undevelopable without a variance, CAFRA II, had gone into effect at midnight of the day of the hearing, Tuesday, July 19, 1994. ² The Board issued its decision and resolution granting the variance on Wednesday, July 20, 1994.

II.

A variance presupposes that the zoning regulation as a whole is reasonable, Moriarty v. Pozner, 21 N.J. 199, 121 A.2d 527 (1956), but recognizes that certain uses of property are compatible with the design of a particular zone even though the proposed use is contrary to the restrictions imposed in that zone. Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189, 119 A.2d 142 (1955). Accord Value Oil Co. v. Town of Irvington, 152 N.J.Super. 354, 377 A.2d 1225 (Law Div.1977), aff'd, 164 N.J.Super. 419, 396 A.2d 1149 (App.Div.1978), certif. denied, 79 N.J. 501, 401 A.2d 256 (1979). Cf. Kindergan v. River Edge Bd. of Adj., 137 N.J.L. 296, 59 A.2d 857 (1948) (board's power to grant variances is to grant variations from terms of ordinance consonant with ordinance's spirit). A variance differs from an exception in that an exception is legislatively permitted in a zone subject to controls, whereas a variance is legislatively prohibited but may be allowed for special...