Vill. of Ridgefield Park v. Outfront Media, LLC

Decision Date07 October 2022
Docket NumberA-1135-20
PartiesVILLAGE OF RIDGEFIELD PARK, Plaintiff-Appellant, v. OUTFRONT MEDIA, LLC, and PLANNING/ZONING BOARD OF THE BOROUGH OF BOGOTA, Defendants-Respondents
CourtNew Jersey Superior Court — Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 26, 2022

Stephen F. Pellino argued the cause for appellant (Basile Birchwale &Pellino, LLP, attorneys; Stephen F. Pellino on the briefs).

Louis L. D'Arminio argued the cause for respondent Outfront Media, LLC (Price, Meese, Shulman &D'Arminio, PC attorneys; Louis L. D'Arminio, of counsel and on the brief; Edward W. Purcell, on the brief).

Kevin P. Kelly argued the cause for respondent Planning/Zoning Board of the Borough of Bogota (Kelly, Kelly, Marotta &Tuchman, LLC, attorneys; Kevin P. Kelly, on the brief).

Before Judges DeAlmeida and Berdote Byrne.

DEALMEIDA, J.A.D.

Plaintiff Village of Ridgefield Park appeals from the November 16, 2020 order of the Law Division upholding a decision of defendant Borough of Bogota Joint Zoning and Planning Board (Board) to approve the settlement of an application by defendant Outfront Media, LLC (Outfront) for a conditional use variance and final site plan approval to install a billboard on property along Interstate 80 (Route 80). We affirm.

I.

Outfront is an advertising company that owns and operates billboards. It leases a portion of property in a business/retail zone in Bogota. Billboards are a permitted conditional use in the zone. The property is triangular and narrow, abuts the twelve-lane Route 80, and contains a two-story commercial building, parking lot, and vacant area. A sound barrier wall separates the property from the eastbound lanes of the highway. The front of the property is on North Avenue. A residential area of Ridgefield Park is on the other side of North Avenue.

Outfront applied to the Board for three conditional use variances pursuant to N.J.S.A. 40:55D-70(d)(3), and a final site plan approval to install a freestanding, static billboard, fourteen-feet wide and forty-eight-feet high, positioned on a pole fifty-seven feet above the ground. One side of the billboard would feature a non-digital advertisement and the rear of the sign would be painted a "flat" color. The pole would stand over the top of the building and the rear of the property and be angled so that it faced only the highway and not any buildings in the area. Ridgefield Park objected to the application.

During a hearing before the Board, Outfront withdrew its request for two of the three conditional use variances it sought. The Board, however, ultimately concluded Outfront required four variances, all of which it denied in a resolution it adopted at the conclusion of the hearing.

Outfront filed a complaint in lieu of prerogative writ in the Law Division challenging the Board's decision. Ridgefield Park intervened in that matter. The trial court affirmed the Board's resolution.

We reversed. Outfront Media, LLC v. Plan./Zoning Bd., No. A-1654-17 (App. Div. Jul. 19, 2019). We found that the Board failed to explain how it arrived at its conclusions that the proposed billboard: (1) exceeded the maximum height permitted in the zone; (2) obstructed access to light and air of adjacent property or places of business; (3) was not entitled to a variance with respect to the rear yard setback requirement; and (4) encroached on the front yard setback requirement, an interpretation of the zoning ordinance disputed by Outfront. Id. (slip op. at 4-8). We found the Board's decision to be "conclusory in nature and untied to any of its factual findings." Id. (slip op. at 8).

In light of our conclusion that "the Board's resolution impair[ed] our ability to evaluate the basis for and determine the propriety of its decision," we reversed the trial court's decision, vacated the Board's resolution, and remanded the matter "to the Board for reconsideration of its resolution in accordance with [our] opinion." Id. (slip op. at 11). We noted that "[o]f course, the Board is not precluded from reopening the hearing and considering additional evidence prior to rendering its final decision, if warranted." Ibid.

On remand, at a public hearing held pursuant to Whispering Woods at Bamm Hollow, Inc. v. Twp. of Middletown Plan. Bd., 220 N.J.Super. 161 (Law Div. 1987), the Board approved a settlement agreement between it and Outfront based on a revised application. At the hearing, Outfront explained several changes it made to its application. Outfront moved the proposed billboard fifty- one feet from its original proposed location to the empty grass area of the property, closer to Route 80 and farther from the nearby residences. As previously noted, the prior application placed the sign over the building, which the Board found required a variance. The settlement application eliminated that concern by moving the sign to the widest point on the property and pushing it up against the sound barrier. Placing the billboard against the sound barrier, however, required a variance from the seven-foot rear setback requirement (the only variance necessary). Although Outfront could have conformed the plan with the seven-foot rear setback from the highway, it chose to place the sign at the sound barrier to keep it farther from nearby residences, given that there was no detrimental impact on the highway from having the sign at the property line. Outfront also proposed additional landscaping between the property and nearby residences to improve the overall aesthetic of the neighborhood and add additional screening between the sign and the residences.

Outfront presented expert testimony concerning: (1) the benefit of the additional landscaping; (2) the lack of an obstruction of access to light and air because the billboard was not a large building and the nearest neighboring property was the highway; (3) the superiority of the new location of the sign against the sound barrier as opposed to locating it seven feet from the rear of the property; (4) the application of the fifty-seven feet maximum height requirement to permit the sign to clear the sound barrier while being out of the clear line of sight of nearby residences; and (5) the proposal's compliance with the front yard setback requirement because the billboard will be at least fifty feet from the nearest residence.

Ridgefield Park opposed the settlement. Its planner testified that the proposal did not meet the front yard setback requirement and required a light and air variance. He also disagreed as to the viability and impact of other claimed variance relief.

The Board unanimously adopted a comprehensive twenty-page resolution memorializing its approval of the settlement. The resolution refers to the expert testimony offered by Outfront. The Board found that the plan promoted a desirable visual environment and did not obstruct access to light and air within the meaning of the zoning ordinance. In addition, the Board concluded that the placement of the billboard achieves the overall planning goals of the Borough for the business/retail zone per its master plan, which includes visibility of billboards from Route 80 and lessening impact on residences.

With respect to the rear yard setback deviation, the Board held that it offered a better zoning plan because the billboard will be closer to the sound barrier, Route 80, and the motoring traffic, which will increase visibility and safety for the target audience, while ameliorating negative visual effects for nearby residences. The Board found that the plan complied with the front yard setback because the billboard would be more than fifty feet from the nearest residence. In reaching this conclusion, the Board rejected Ridgefield Park's argument that the ordinance requires a fifty-foot front yard setback from the nearest residence, as well as a thirty-foot setback from the property line. The Board concluded that argument ignores the size of the lot and the interpretation offered by Ridgefield Park would make it impossible to install a billboard anywhere in the zone, which clearly was not the intent of the governing body when it adopted the ordinance allowing billboards as a conditional use.

Ridgefield Park filed a complaint in lieu of prerogative writ in the Law Division challenging the Board's resolution approving the settlement. The village argued: (1) res judicata and collateral estoppel prevent the Board from changing the interpretation of the zoning ordinance it applied to Outfront's initial application; (2) the Board's findings do not support the grant of a conditional use variance; (3) the Board failed to grant a necessary bulk variance; and (4) the Board, in effect, granted front yard setback and maximum height variances without proper zoning analysis.

Judge Christine A. Farrington issued a comprehensive written opinion upholding the Board's resolution. The judge concluded that res judicata and collateral estoppel do not apply because our decision vacated the Board's first resolution and remanded the matter for reconsideration. Thus, Judge Farrington found, the Board was not bound by its prior interpretation of the zoning ordinance or fact findings.

In addition, the judge found...

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