VILLAGE OF RIDGEFIELD PARK v. OUTFRONT MEDIA, LLC (L-1043-20, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 7, 2022
• Docket: A-1135-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1135-20

VILLAGE OF RIDGEFIELD PARK,

Plaintiff-Appellant,

v.

OUTFRONT MEDIA, LLC, and PLANNING/ZONING BOARD OF THE BOROUGH OF BOGOTA,

Defendants-Respondents. __________________________

Argued April 26, 2022 – Decided October 7, 2022

Before Judges DeAlmeida and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1043-20.

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).

The opinion of the court was delivered by

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

A-1135-20 2 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 free-

standing, 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

A-1135-20 3 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-

A-1135-20 4 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

A-1135-20 5 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

A-1135-20 6 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 bod y

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.

A-1135-20 7 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 that the Board complied with the holding in

Whispering Woods when it held a hearing that met all of the statutory conditions

necessary to vindicate the public interest, including notice, a public hearing, a

public vote, and a written resolution explaining the Board's approval of the

settlement. See Gandolfi v. Town of Hammonton, 367 N.J. Super. 527 (App.

Div. 2004). The judge also noted that our courts favor the settlement of

contested matters.

Judge Farrington found that Outfront met its burden of proof to satisfy a

section (d)(3) conditional use variance as set forth in Coventry Square, Inc. v.

Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 300-01 (1994). The judge

noted that the Board relied on expert testimony to conclude that the revised

application relocated the billboard in a plan that was suitable for the

conditionally permitted use, was not inconsistent with the zone plan or zoning

A-1135-20 8 ordinance, and aesthetically suitable. Of note, the judge found, was the

borough's concession that there was no location in the municipality where a

billboard could be installed in complete conformance with the zoning ordinance.

The judge also rejected Ridgefield Park's arguments regarding the Board's

interpretation of the front yard setback, height, and bulk variance provisions of

the zoning ordinance. A November 16, 2020 order memorialized Judge

Farrington's decision.

This appeal follows. Ridgefield Park repeats before us the arguments it

raised in the trial court.

II.

When reviewing a planning board's decision, we use the same standard

used by the trial court. Cohen v. Bd. of Adjustment, 396 N.J. Super. 608, 614-

15 (App. Div. 2007). Like the trial court, our review is limited. Smart SMR of

N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).

Decisions of zoning boards are quasi-judicial actions of municipal

administrative agencies, Willoughby v. Plan. Bd., 306 N.J. Super. 266, 273

(App. Div. 1997), and they are presumed to be valid, Cell S. of N.J., Inc. v.

Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002). The Board's decision may

A-1135-20 9 be set aside only if it was arbitrary, capricious, or unreasonable. Medici v. BPR

Co., 107 N.J. 1, 15 (1987).

A planning board's actions are presumed to be valid because of its

"peculiar knowledge of local conditions," which entitle such boards to wide

latitude in the exercise of discretion. N.Y. SMSA, LP v. Bd. of Adjustment, 370

N.J. Super. 319, 331 (App. Div. 2004) (quoting Pierce Ests. Corp. v.

Bridgewater Twp. Zoning Bd. of Adjustment, 303 N.J. Super. 507, 514 (App.

Div. 1997)). Further, "the Board 'has the choice of accepting or rejecting the

testimony of witnesses. Where reasonably made, such choice is conclusive on

appeal.'" Kramer v. Bd. of Adjustment, 45 N.J. 268, 288 (1965) (quoting

Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div. 1960)).

"The proper scope of judicial review is not to suggest a decision that may be

better than the one made by the board, but to determine whether the board could

reasonably have reached its decision on the record." Jock v. Zoning Bd. of

Adjustment, 184 N.J. 562, 597 (2005).

Having carefully reviewed Ridgefield Park's arguments in light of the

record and applicable legal principles, we affirm the November 16, 2020 order

for the reasons stated by Judge Farrington in her thorough and well-reasoned

written opinion. We add a few comments.

A-1135-20 10 "The term 'res judicata' refers broadly to the common-law doctrine barring

relitigation of claims or issues that have already been adjudicated." Velasquez

v. Franz, 123 N.J. 498, 505 (1991). "The application of res judicata doctrine

requires substantially similar or identical causes of action and issues, parties,

and relief sought." Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). "In

addition, there must be a 'final judgment by a court or tribunal of competent

jurisdiction.'" Ibid. (quoting Charlie Brown of Chatham v. Bd. of Adjustment,

202 N.J. Super. 312, 327 (App. Div. 1985)).

"As a general principle, [c]ollateral estoppel is that branch of . . . res

judicata which bars relitigation of any issue which was actually determined in a

prior action . . . ." In re Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013)

(quoting Div. of Youth & Fam. Servs. v. R.D., 207 N.J. 88, 114 (2011)). For

the doctrine to apply,

the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceedings issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

A-1135-20 11 [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20- 21 (1994)).]

Collateral estoppel is distinguishable from res judicata in "that it alone bars

relitigation of issues in suits that arise from different causes of action."

Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000).

"Res judicata applies when either party attempts to relitigate the same cause of

action. Collateral estoppel applies when either party attempts to relitigate facts

necessary to a prior judgment." T.W. v. A.W., 224 N.J. Super. 675, 682 (App.

Div. 1988). Application of collateral estoppel to bar a plaintiff's claims presents

an "issue of law to be determined by a judge in the second proceeding after

giving appropriate weight to the factors bearing upon the issues." Selective Ins.,

327 N.J. Super. at 173.

Ridgefield Park's reliance on res judicata and collateral estoppel is

misplaced, given that the doctrines apply where a final substantive decision has

been made in a prior proceeding. Here, the Board's first resolution was vacated

by this court. We remanded the matter for reconsideration, noting that the Board

could reopen the hearing and consider additional evidence, which it elected to

do. Res judicata and collateral estoppel do not apply in these circumstances.

The Board was not bound to interpret the zoning ordinance in the same manner

A-1135-20 12 as it had at the first hearing, nor was it constrained to reject Outfront's revised

application.

With respect to the Board's decision to approve the settlement, which

incorporated the variance the Board determined necessary, we, like Judge

Farrington, conclude that the record contains ample evidence supporting the

Board's discretionary action. To the extent Ridgefield Park raises any arguments

not specifically addressed in Judge Farrington's opinion, we conclude they lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1135-20 13