LAMAR ADVERTISING OF PENN, LLC VS. TOWNSHIP OF UNION(L-1202-15, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APP ROVAL 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-3760-15T1
LAMAR ADVERTISING OF
PENN, LLC,
Plaintiff-Respondent,
v.
TOWNSHIP OF UNION,
Defendant,
and
TOWNSHIP OF UNION ZONING
BOARD OF ADJUSTMENT,
Defendant-Appellant.
_________________________________
Argued October 3, 2017 – Decided November 17, 2017
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-1202-
15.
Robert J. Pansulla argued the cause for
appellant (Finazzo Cossolini O'Leary Meola &
Hager, LLC, attorneys; Mr. Pansulla, of
counsel and on the brief).
David M. Roskos argued the cause for
respondent (Eckert Seamans Cherin & Mellott,
LLC, attorneys; Mr. Roskos, of counsel and on
the brief; Michael R. Butler, on the brief).
PER CURIAM
In an effort to take advantage of new LED technology,
plaintiff Lamar Advertising of Penn, LLC, sought to replace its
double-sided traditional static billboard, facing Route 78 and a
cemetery, with an LED multi-message panel billboard. The Union
Township's Zoning Board of Adjustment (Board) determined that the
d(1) variance granted to plaintiff for the static billboard in
2003, did not allow for the electronic billboard, and denied a new
d(1) variance for the LED billboard. In support of its decision,
the Board cited a new Union Township municipal ordinance that
prohibited the conversion of existing static billboards to LED
billboards, and found that the new billboard negatively impacted
traffic and the surrounding area.
Plaintiff filed a complaint in lieu of prerogative writ with
the Law Division contending that its billboard conversion did not
require an additional d(1) variance, and alternatively, the
Board's denial of its variance request was arbitrary and
capricious. Assignment Judge Karen M. Cassidy issued an order
providing that although a d(1) variance was needed, the Board's
denial of plaintiff's d(1) variance request was arbitrary and
capricious. We affirm substantially for the reasons stated by the
judge in her thorough, twenty-six page written statement of reasons
issued with her order. We add only these brief comments.
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The Board argues Judge Cassidy overstepped her bounds in
allowing plaintiff to change a static billboard to a multi-
messaging digital communication system despite recognizing that
it was prohibited by Township ordinance, and without finding
special reasons for the new billboard's non-conforming use. The
Board also maintains that the judge improperly substituted her
judgment to grant the variance by disregarding its factual
determinations - the LED billboard's impact to residences, the
neighboring cemetery and cars on the nearby congested and dangerous
stretch of highway – in denying the variance.
We need not set forth the procedural history and the testimony
before the Board surrounding this billboard as they are detailed
in Judge Cassidy's statement of reasons. We point out, however,
that the Board summarily rejected the testimony of plaintiff's
three experts stating that the billboard's location was suitable
and that the timing and imaging of the new billboard would not
negatively impact traffic or the surrounding area, without the
presentation of any specific evidence to discredit their opinions.
Hence, we agree with Judge Cassidy's reasoning in granting the
variance:
This court has reviewed the complete record
of the Board proceedings related to this
matter, the parties' submissions to the court,
and oral argument. It finds the record
establishes [plaintiff] offered a number of
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expert witnesses and proofs to illustrate the
application met the requirements for d(1)
variance relief. This court finds the record
contains insufficient proofs to support the
Board's findings. There was no corroboration
in the record for the Board's assertions that
the illumination impact of the surrounding
area would be greater, that there was a
potentially large negative impact on the
residential areas or the cemetery land, that
there would be an increase in traffic and that
it would [be] more dangerous for drivers.
Moreover, [plaintiff] provided considerable
evidence demonstrating how the application met
the positive and negative criteria under
[Medici v. BPR Co., 107 N.J. 1, 4 (1987)].
While this court must apply a deferential
standard of review, it finds the weight of the
evidence overwhelmingly supports a grant of
the use variance and the decision of the Board
was arbitrary, capricious, and unreasonable.
Lastly, we are cognizant that our Supreme Court recently
addressed the constitutionality of LED billboards in E & J
Equities, Ltd. Liab. Co. v. Bd. of Adjustment of the Twp. of
Franklin, 226 N.J. 549 (2016). However, we do not address the
constitutionality of Union Township's ordinance because neither
party raised the issue before us.
Affirmed.
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