Q A number of years ago, our municipality adopted a redevelopment plan under the Local Redevelopment Housing Law. The plan encouraged the building of restaurants in the redevelopment area, but prohibited drive through restaurants. The underlying zoning ordinances within the area, which were not superseded by the plan, did not prohibit this use. Recently a developer applied for a use variance to put a drive through restaurant on a piece of property in the zone, claiming that the proposed use is particularly suited to the property, which was oddly shaped, polluted, and had been unused for many years. The Board of Adjustment granted the variance. Does the Board have the power to do this when the redevelopment plan specifically prohibits this use?
A The New Jersey Appellate Division found that the Board of Adjustment does have the power to grant such a variance in the case of Weeden v. Trenton, 391 N.J. Super.214 (2007). In that case, as in yours, the redevelopment plan was adopted pursuant to the Local Redevelopment Housing Law (LRHL), at N.J.S.A. 40A:12A-1 to -49, and operated as an overlay zone, meaning that its requirements were added to the underlying local zoning ordinances governing the area, but did not replace them.
The Court noted that the LRHL assumes that the Planning Board established in the municipality pursuant to the Municipal Land Use Law (MLUL) will review plans for projects in the redevelopment area just as it does other development plans in the municipality. Therefore, the question before the Court was whether the Board of Adjustment also has the same role concerning the granting of use variances in an LRHL redevelopment area that it does in the rest of the municipality. In other words, does the Board of Adjustment have the power to grant use variances from the added requirements of the redevelopment plan as well as from the underlying zoning ordinances in a redevelopment area?
The Court found that the Board of Adjustment did have this power, as long as the use variance did not conflict with the goals of the redevelopment plan. In the set of facts before it, the Board had found credible and sufficient evidence that the particular property was uniquely suited to be used as a drive through restaurant, and that without the drive through window, it would not be economically viable.
Therefore, depending on the particular characteristics of the property and the redevelopment plan in your municipality, the Board of Adjustment may well have the power to grant this variance.
Q Can a municipality enact an ordinance that prohibits all inflatable signs except those that say “Grand Opening”? We do not want to interfere with any new business in town that wants to attract customers when it first opens, but lately all kinds of messages are being advertised on these signs, and frankly, they are a traffic hazard on our busy roads.
A Recent case law indicates that a municipality must take care when legislating in this area. In State v. D’Angelo (A-73-07, decided February 5,2009), the New Jersey Supreme Court overruled the Appellate Division and struck down a municipal ordinance that barred the use of inflatable signs other than those with a “Grand Opening” message on them. The challenge to the ordinance was made in the context of a conviction for violation of the ordinance by the defendant when he used a blow-up rat figure as part of a protest during a labor dispute.
The Court found that the ordinance violated the First Amendment protection of free speech. It was “content based” regulation because inflatable signs with a “Grand Opening” message were allowed, but other such signs with different messages on them were prohibited. “Content based” sign regulation prohibits or restricts the display of signs on the basis of the message conveyed by them. Such regulation in a public forum is strictly scrutinized by the courts for constitutionality. To be constitutional, it must further a compelling state interest and be narrowly drawn to achieve that end.
The Court found that neither of these requirements was met in the ordinance before it, and also held the local law to be overbroad because it eliminated an entire medium of expression when there was no “readily available alternative”. Therefore, the Court struck down the ordinance and the conviction under it was set aside.
Therefore, check with your municipal attorney about the legality of any regulation in this area.
This column is for informational purposes only, and is not intended as legal advice.