Westfield Motor Sales Co. v. Town of Westfield

• Decision Date: 12 July 1974
• Parties: WESTFIELD MOTOR SALES CO., a New Jersey corporation, Plaintiff, v. TOWN OF WESTFIELD et al., Defendants. Law Division
• Court: New Jersey Superior Court

Page 528

129 N.J.Super. 528

324 A.2d 113

WESTFIELD MOTOR SALES CO., a New Jersey corporation, Plaintiff, v. TOWN OF WESTFIELD et al., Defendants.

Superior Court of New Jersey,

Law Division.

July 12, 1974.

Paul R. Williams, Jr., Westfield, for plaintiff.

Robert J. T. Mooney, Plainfield, for defendants.

ACKERMAN, HAROLD A., J.S.C.

Plaintiff brings this action in lieu of prerogative writs pursuant to R. 4:69. By this suit it seeks a determination that defendant Town of Westfield's zoning ordinance is unconstitutional or, alternatively, that defendant Board of Adjustment of the Town of Westfield acted arbitrarily and capriciously in denying its application for a variance pursuant to N.J.S.A. 40:55--39(c).

Plaintiff is a franchised Ford dealer operating its business in defendant town's G.B. (General Business) district. In line with Ford's national identification campaign, plaintiff applied to defendant building inspector for permission to erect on its premises five advertising signs. At the time it applied there were 15 or 16 signs of various types already existing on the premises, and concededly old and unsightly. Plaintiff wished to tear almost all of these down and replace them with the new ones which it had applied for.

The building inspector denied plaintiff's application and plaintiff then instituted a suit contending, among other things, that the sign ordinance was unconstitutional. In an unreported opinion dated January 22, 1971, Judge Feller held the ordinance invalid, essentially because it had been improperly enacted as part of defendant's general ordinances instead of having been enacted as part of defendant's zoning ordinances. The case was then remanded so that defendant could enact a new sign ordinance. Westfield Motor Sales Co. v. Westfield, Dkt. No. L--30894--69 (Law Div.1971).

On April 13, 1971 defendant town adopted a new ordinance and plaintiff's suit was dismissed by consent of the parties. It is this ordinance which is now under attack.

Section 419 of the zoning ordinance of the Town of Westfield provides in pertinent part as follows:

B. Signs in the Residence Districts. The following signs are permitted in the Residence Districts:

2. Signs erected upon the premises of and for churches, charitable and civic organizations which shall not exceed twenty square feet in area.

4. In the Garden Apartment Residence Districts one sign identifying the name of the garden apartment premises only which shall not exceed 16 square feet in area.

5. Temporary Signs:

(a) One sign identifying the owner, architect, builder, relator and contractor on premises on which a building is being constructed, altered or repaired. Such a sign shall not exceed 16 square feet in area.

(b) One free-standing sign on a subdivision which has been approved by the Town Planning Board. Such a sign shall not exceed 24 square feet in area and shall be removed after residences have been constructed on 95% Of the lots * * *. In no case shall any such subdivision sign be permitted after two years have elapsed from the time when the first sign was so erected.

(c) One sign announcing that the premises on which it is located are available for sale or rental. Such a sign shall not exceed four square feet in area and shall be displayed only for so long as such premises are in fact available for sale or rental.

6. All signs which are located in the Residence Districts may be of the free-standing type. All other signs in the Residence Districts are prohibited.

C. Signs in the Professional Office District.

The following signs are permitted in the Professional Office District:

2. One sign upon the premises used for professional offices which shall not exceed ten square feet in area.

D. Signs in Central-Business, General Business, Industrial Parks and Industrial Districts:

1. All signs permitted in the Residence and Professional Districts.

2. Signs which direct attention exclusively to a permitted business conducted on the premises * * *. Said sign shall comply with the following:

(a) One sign may be attached to the wall at each main public entrance of a building. Such sign shall not exceed the length of said wall nor a height of 3 feet.

(c) Two business signs may be painted on the windows and/or doors of each business * * * provided that there shall be no more than one such sign on each window or door, and the total area of all such signs shall not exceed 10 square feet.

3. Signs required by law to be exhibited * * * provided the same do not exceed 6 square feet in total area.

5. Non-illuminated signs displayed on the interior of windows to give notice of sales or special functions shall be permitted for 75 days each year. No more than 30% Of the total area of the window on which such signs are displayed shall be covered.

6. A free standing sign for each entrance on parking lot premises which shall not exceed 10 square feet in area.

E. General Regulations

6. No wall sign shall project more than 5 inches beyond the building wall to which it is affixed.

7. No sign shall be above the top or beyond the ends of the wall surface upon which it is placed.

F. Illumination.

1. All signs permitted by this ordinance may be illuminated unless otherwise provided herein.

After the adoption of this ordinance plaintiff again applied to defendant building inspector for permission to erect five signs. Sign No. 1 was to be a nonilluminated, wall-mounted sign running the length of the building and bearing the words 'Westfield Ford.' It was to project more than the five inches prescribed under section 419(E)(6), Supra. Sign No. 2 was to be a free-standing sign of approximately 138 square feet in area bearing the single word 'Ford.' This contravened the ten-square-foot maximum allowed in the business district under Section 419(D)(6). Plaintiff proposed that sign No. 3 be an internally illuminated, wall-mounted sign directing the customers to the body and paint area. This sign was also planned to project more than five inches. Sign No. 4 was to be a free-standing one of approximately 32 square feet bearing the words 'Used Cars,' and sign No. 5 was to be an internally illuminated, wall-mounted sign projecting almost eight feet from the building.

On December 27, 1971 defendant building inspector again denied plaintiff's application because the proposed signs violated the ordinance. Plaintiff then appealed to defendant board for a variance under N.J.S.A. 40:55--39(c). A hearing was held on January 24, 1972 and at that time the application for sign No. 1 was withdrawn as plaintiff expected that the proposed sign would comply with the ordinance. The board denied the requested variances without making any findings of fact or stating any conclusions of law. No stenographic record of the hearing was made.

Plaintiff instituted the present action on March 8, 1972, and on January 8, 1973 Judge Steinbrugge ordered the matter remanded so that a verbatim record could be made and so that the board could set forth its findings of facts and conclusions of law.

Two hearings were held as a result of the remand. Plaintiff amended its application so that sign No. 2 would only be 52 square feet in area, the smallest sign of that type supplied by Ford. The testimony indicated that there were 37 other signs in the area all the same size. Evidently these were preexisting nonconforming uses. Plaintiff's witnesses testified that the purpose of the large free-standing sign was to make the dealership visible at a major intersection some distance away. However, this visibility was not essential for plaintiff's business; it was merely to make the premises more attractive and to maintain the present sales volume. The sign would radiate little glare due to its internal illumination. As for the internally illuminated, wall-mounted signs, plaintiff's expert testified that the five-inch projection provision effectively prohibited any such signs because industry standards mandated that internally illuminated signs be at least six inches thick. This factor would make it practically impossible to comply with the ordinance.

There was great opposition to plaintiff's application. Many residents of the area argued that the free-standing sign would visually project onto three residential streets. One resident, who had measured distances and lines of sign, indicated that the large sign could not be seen from the intersection, as plaintiff had contemplated. Several persons viewed plaintiff's application as a 'test case' in which an unfavorable precedent might be set for the future. The crux of the opposition was that the purpose of the ordinance was to preserve Westfield's colonial atmosphere; any variance granted would destroy that purpose notwithstanding the fact that the proposed signs would be more aesthetically pleasing than the signs presently in place.

On April 16, 1973 the board of adjustment denied the requested variance. It found as a fact that 'the purpose of the proposed sign installations is to create uniformity of Ford Dealership signs throughout the county * * *' and that plaintiff 'does not contend that the proposed new signs are necessary to increase or preserve business * * *.' The board found that the purpose of the signs was modernization and beautification.

It therefore concluded that plaintiff had failed to establish unique or exceptional conditions constituting a hardship. It also stated that to permit the substitution of one set of nonconforming signs for another set simply to meet the needs of a national identity program would 'substantially impair the corrective intent and prospective purpose of the Zoning Ordinance * * *.'

Plaintiff alleges that the ordinance represents an illegal use of zoning power under N.J.S.A. 40:55--32, and that the ordinance is arbitrary and discriminatory. It prohibits signs over 10 square feet in area in the business zones, while permitting garden apartments up to 16 square feet, and churches up to 20 square feet. Defendants now...