Daily Development for
Wednesday, November 18, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; PREEXISTING NONCONFORMING USE; SIGNS: A sign does not lose its protected, nonconforming status simply because its message has changed to that of another permitted business use.

Rogers v. Zoning Board of Adjustment of the Village of Ridgewood, 309 N.J. Super. 630, 707 A.2d 1090 (App. Div. 1998).

A municipality adopted a sign ordinance which changed the previously conforming status of a free standing sign in front of an office building to that of a prior nonconforming sign. When the tenant vacated the building a few years later, the building owner wanted to retain the sign and simply change the message. However, the municipality's Board of Adjustment denied the landlord's applications for a protected, nonconforming use or, alternatively, for a use variance. The lower court reversed the Board's denial of a nonconforming use variance. While the landlord's suit was pending in the lower court, the municipality adopted an amendment to its sign ordinance which had the effect of prohibiting a change of message on a nonconforming sign.

The Appellate Division stated that the sole legal issue was whether the amendment prohibiting a change of message on a prior nonconforming sign impairs a property owner's right to maintain nonconforming uses under state statute. If so, the landlord's right to maintain the sign with the new message must be upheld, and no variance is required.

This exact question was presented in an earlier case where the Appellate Division affirmed a Board's denial of permission to retain a sign with a new message on the grounds that a new message meant a new use, and therefore was not a continuation of the prior use. In that earlier case, the dissent argued that since both the prior and subsequent uses of the premises were permitted, the change from one permitted use to another did not result in any substantial change to the nonconforming sign. Furthermore, the dissent in that earlier case argued that without a change in the sign's shape of size, there is no substantial change to the sign. The Appellate Division in this case adopted the earlier dissenting opinion, concluding that a sign does not lose its protected nonconforming status simply because its message has changed to that of another permitted business' use.

Comment 1: When the issue is whether a nonconforming use has been continued, the question should not be whether the impact of the activity has changed, since the zoning authorities have decided already that the impact is undesirable. Some light industrial uses probably are no different in impact from some commecial uses. Is a box making company more offensive than a dry cleaner? But no one would argue that use of property as a dry cleaning establishment would support continued activity as a box making facility when the zoning has been changed to prevent either activity.

The question is whether the owner of the property has put it to a use that is different in character than that which it had conducted prior to the change. In this case, the problem is more interesting because the nonconforming activity is the sign itself. If the sign was merely ancillary to another nonconforming use, then the conversion of that use to a distinctly different one likely would lead to loss of a right to continue the sign, even if the sign had no greater impact than it had before. But here, the sign is not ancillary to the contested use, it is the use. The editor, having engaged in this elaborate and possibly pointless philosophical debate with himself, concludes that the case is correct.

Comment 2: Note that many jurisdictions have dealt successfully with signs by "sunset" ordinances that provide for an amortization period before the signs must be removed. In the federal billboard cases, courts have approved amortization periods that would strike most objective viewers (such as the editor) as absurdly short. If this jurisdiction gets wise, the sign may not have long to live.

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