STATE OF NEW JERSEY VS. SEA SHELL RESORT AND BEACH CLUB (17-28, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5702-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEA SHELL RESORT AND
BEACH CLUB,
Defendant-Appellant.
__________________________
Argued May 16, 2019 – Decided May 30, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 17-28.
Joseph Anthony Martin argued the cause for appellant
(Martin Law Firm, LLC, attorneys; Joseph Anthony
Martin, on the brief).
Micci J. Weiss argued the cause for respondent (Cleary
Giacobbe Alfieri Jacobs, LLC, attorneys; Bruce
William Padula and Micci J. Weiss, on the brief).
PER CURIAM
Defendant Sea Shell Resort and Beach Club appeals from the June 26,
2018 Law Division order denying its appeal from the municipal court's denial
of its motion to dismiss complaints alleging violations of the Borough of Beach
Haven's sign ordinance. On appeal, defendant contends the Law Division judge
erred in finding the sign ordinance applied to the two light-emitting diode (LED)
panels defendant installed on its building and the Borough did not selectively
enforce the sign ordinance against defendant. Defendant also contends the judge
erred in denying discovery. We reject these contentions and affirm.
I.
The Borough's sign ordinance provides, in pertinent part, that "[n]o signs,
billboards, advertising structures or similar items are permitted except as" set
forth in the ordinance. Beach Haven, N.J., Ordinances, Zoning-Signs,
Ordinance § 212-16A (1979). Ordinance §121-16B provides, in pertinent part:
B. Signs in the RC [Multifamily Residential] District:
....
(3) One lighted sign not to exceed [thirty-five]
square feet in area for each motel or hotel is
permitted. Such sign shall be attached to the
building, but, if erected on or above the roof of the
building, such sign shall be set back a minimum
distance of five feet from the property line. Flashing
signs are not permitted. . . .
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(4) No sign authorized herein shall be erected
without first obtaining a permit therefor from the
Building Administrator, who shall issue the same
upon being satisfied that such sign will not violate
this chapter and upon payment to him of the
appropriate review fee; provided, however, that this
subsection shall not apply to those signs allowed by
[Ordinance § 212-16A(4)].[1]
Ordinance § 212-16D provides, in pertinent part:
D. Prohibited features.
....
(2) No neon sign or similar illuminated
advertisements shall be of such color or located in
such a fashion as to diminish or detract in any way
from the effectiveness of any traffic signal or similar
safety or warning device.
....
(4) No sign shall have flashing lights or exposed
high-intensity illumination.
Ordinance § 212E provides:
E. Permit fee. No sign shall be erected pursuant to the
terms of this section before paying a zoning fee of $25
to the Borough of Beach Haven.
[Added 2-9-2009 by Ord. No. 2009-6].
(1) No sign board shall be displayed before paying a
zoning fee of $50 annually, to coincide with
mercantile license renewals, to the Borough of
Beach Haven. . . .
1
Ordinance § 212-16A(4) does not apply here.
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Beach Haven, N.J., Ordinances, Zoning-Definitions and Word Usage, §
212-3 defines "sign," in pertinent part, as "[a]ny device designated to inform or
attract the attention of persons not on the premises on which the sign is
located[.]"
Defendant is a family-owned and operated beach resort and facility
located on Atlantic Avenue in the Borough's RC district. Superstorm Sandy
destroyed the property. As part of rebuilding, defendant installed two LED
panels on the exterior of the building, one located on the southwest corner of the
building and the other on the northwest corner. Defendant referred to the LED
panels as low density LED informational panels. Defendant also installed nine
other lighted signs on the building.
Defendant claimed that prior to purchasing and installing the LED panels,
its owner, Thomas Hughes, spoke to Borough zoning officer William Greer, who
confirmed the LED panels would be permissible and "would not be a problem[.]"
Defendant further alleged that it purchased and installed the LED panels, at a
cost of more than $20,000, in reliance on Greer's representation.
Greer certified he never spoke to Hughes prior to defendant installing the
LED panels; Hughes never consulted with or advised him of his plan to install
LED panels; and Greer did not confirm the LED panels would be permissible.
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Greer also certified he did not become aware defendant had installed the LED
panels until he received the first of twenty-one complaints from adjacent
residents on June 9, 2017. The residents complained about the deleterious effect
of the brightly lit LED panels on the value and enjoyment of their properties and
on the nature of the historic district in which the properties were located. One
resident complained that the lighted LED panels changed colors and messages
repeatedly, often announcing the availability of beer and happy hour specials in
the resort. A picture of the LED panel on the front of the resort advertised: "Raw
Bar Happy Hour Open Daily."
On June 9, 2017 and June 12, 2017, Greer issued the following complaints
against defendant:
1. Complaint No. 1503-SC-000066: failure to obtain a
sign permit in violation of Ordinance § 212-16B(4);
2. Complaint No. 1503-SC-000067 and Complaint No.
1503-SC-000070: installing more than one lighted
sign in violation of Ordinance § 212-16B(3); and
3. Complaint No. 1503-SC-00069: failure to pay a sign
permit fee in violation of Ordinance § 212-16E.
On June 28, 2017 defendant applied for a sign permit for the LED panels.
On July 5, 2017, Greer denied the application, finding the LED panels violated
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the sign ordinance. Thereafter, Greer issued Complaint No. 1503-SC-011161:
installing more than one lighted sign in violation of Ordinance § 212-16B(3).2
On July 31, 2017, defendant filed a motion in the municipal court to
dismiss the complaints, arguing the sign ordinance did not apply to its LED
informational panels. Defendant posited that LED panels did not exist when the
Borough passed the sign ordinance in 1979, and thus, the Borough could not
have contemplated or intended to regulate LED panels at the time.
Defendant also argued the sign ordinance clearly and unambiguously
prohibited only neon, flashing, and exposed high-intensity illumination signs,
the LED panels did not fall within these categories, and the sign ordinance did
not specifically include or prohibit LED panels. Defendant further argued that
reference to "lighted signs" in Ordinance § 212-16B(3) suggested the sign
ordinance was written for traditional wood signs or banners that are backlighted
or illuminated with directional lighting, and the LED panels do not fit within
this category of "signs." Defendant concluded that because the sign ordinance,
on its face, did not apply to or regulate the LED panels, defendant was not
2
Greer issued other complaints that the municipal court dismissed and are not
pertinent to this appeal.
A-5702-17T4
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required to obtain a sign permit and pay a sign permit fee and did not violate the
sign ordinance.
Defendant also argued the Borough selectively enforced the sign
ordinance against it, but not against two businesses in the Borough, Bay Village
and the Volunteer Fire Department (VFD), who defendant claimed installed and
were using similar LED panels without applying for or receiving a sign permit.
However, Greer certified that the two businesses had applied for and obtained
sign permits, and submitted documents showing they did so in 2006 and 2014,
respectively. Defendant raised no other argument regarding selective
enforcement.
In opposition, the State argued the sign ordinance regulates all signs and
a LED panel is a "sign," as defined in Ordinance § 212-3 because it is a device
designated to inform or attract the attention of persons not on the premises on
which the sign is located. The State also argued that defendant never obtained
a sign permit or paid a sign permit fee and installed more than one lighted sign.
The State denied it had selectively enforced the sign ordinance against
defendant, noting that Bay Village and the VFD had applied for and received
permits for their LED panels and each installed only one LED panel on their
building.
A-5702-17T4
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In reply, defendant reiterated its arguments and added that the State should
be compelled to provide discovery requested on July 5, 2017, including a
proposed amendment to the sign and nuisance ordinances to include LED panels,
and the court should dismiss the complaints if the State failed to comply.
On September 25, 2017, municipal court Judge Stacey Kerr denied
defendant's motion, finding Ordinance § 212-3 and Ordinance § 212-16 clearly
encompassed defendant's LED informational panels. The judge determined the
LED panels are "signs" within the meaning of Ordinance § 212-3, as they are
devices designated to inform and attract attention. The judge also found
defendant did not apply for a sign permit or pay the sign permit fee and had
installed two LED panels and other lighted signs on the property. The judge
also held there was no selective enforcement of the sign ordinance, as Bay
Village and the VFD had applied for and obtained permits, the two businesses
were located in a different zone, and the Borough had not received complaints
about their LED panels.
Following Judge Kerr's decision, defendant sought to compel the State to
comply with its July 5, 2017 and September 21, 2017 discovery requests. Judge
Kerr denied defendant's request, holding as follows:
I found that the [sign] ordinance applies to the sign. So
the fact that that's happened . . . I don't find that any of
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these things are relevant. Again, I don't find selective
enforcement. I don't think there's a difference between
LED applications and sign applications. I'm not sure
how that's relevant to whether [defendant] has violated
the [sign] ordinance as it was written.
Defendant then pled guilty to all five complaints preserving its right to
appeal Judge Kerr's rulings. The judge imposed an $830 fine and $165 for court
costs. Defendant agreed to cease using the LED panels pending appeal.
On appeal to the Law Division, defendant reiterated the arguments made
to Judge Kerr. For the first time on appeal, defendant argued that the Mayor's
personal animus toward defendant and its owner, and the fact that the Borough
issued sign permits to Bay Village and the VFD but not defendant, was further
evidence of selective enforcement.
Judge Michael T. Collins denied defendant's appeal. The judge found the
definition of "sign" was clear and unambiguous and the sign ordinance governed
the LED panels. The judge stated:
I find it significant in part the arguments made by
the State[] . . . with respect to the fact that as long ago
as 2006, that Bay Village had applied for and been
granted a permit for the LED [panel]. That leads me to
believe that this [is] not something that is a recent
vintage and/or was the product of some type of
selective enforcement whereby Bay Village and/or the
[VFD] were the beneficiaries of an indulgent Borough
where [defendant] was not. So in this regard with
respect to whether or not I find that the LED panels are
A-5702-17T4
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governed by the Borough ordinance, I find that the
answer to that is yes.
Judge Collins rejected defendant's selective enforcement argument,
finding as follows:
[As] to the other issue which is that of selective
enforcement, as pointed out by the State, the burden of
proof there is fairly high, at least at the threshold level.
And the question is whether or not the scenario
presented with respect to Bay Village and the [VFD]
constitutes favorable treatment to those entities and to
the disadvantage of [defendant], and I do not find that
there has been a colorable claim articulated by the
defendant. As pointed out earlier, counsel told me this
2006 for Bay Village and I guess 2014 for the [VFD].
So not only was there that type of vintage of age that is
attributed to the Borough's position with respect to LED
[panels], but the fact that I just don't find any selective
enforcement having been borne out under these
circumstances.
Judge Collins declined to consider defendant's animus argument, as defendant
did not raise this argument before Judge Kerr. 3 This appeal followed.
3
Judge Collins properly declined to address this issue, as his review was limited
to the record below and there was no legal error that permitted him to
supplement the record. R. 3:23-8(a)(2); see also State v. Loce, 267 N.J. Super.
102, 104 (Law Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div. 1993) (the
Law Division is bound by the evidentiary record of the municipal court).
A-5702-17T4
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II.
On appeal, defendant first contends that Judge Collins erred in finding the
sign ordinance applied to LED panels. Defendant reiterates the arguments made
to Judge Collins as to why the sign ordinance, on its face, does not apply to LED
panels, and also argues the judge erred in failing or refusing to consider extrinsic
evidence that would have shown the sign ordinance did not apply to LED panels.
On appeal from a municipal court to the Law Division, the review is de
novo on the record. R. 3:23-8(a). "At a trial de novo, the court makes its own
findings of fact and conclusions of law but defers to the municipal court's
credibility findings." State v. Robertson, 228 N.J. 138, 147 (2017).
In our review of the Law Division's decision on a municipal appeal, "[w]e
'consider only the action of the Law Division and not that of the municipal
court.'" State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011)
(quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). We
consider "whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37,
49 (2012) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
Unlike the Law Division, we do not independently assess the evidence.
Locurto, 157 N.J. at 471. The rule of deference is more compelling where, such
A-5702-17T4
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as here, the municipal and Law Division judges made concurrent findings. Id.
at 474. "Under the two-court rule, appellate courts ordinarily should not
undertake to alter concurrent findings of facts and credibility determinations
made by two lower courts absent a very obvious and exceptional showing of
error." Ibid. "Therefore, appellate review of the factual and credibility findings
of the municipal court and the Law Division 'is exceedingly narrow.'" State v.
Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470).
However, we afford no special deference to a trial court's interpretation of
the law and the legal consequences that flow from established facts. Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Because
Judge Collins's judgment as to the applicability of the sign ordinance to LED
panels rested on his statutory interpretation, our scope of review is de novo,
without affording such judgment any special deference. State ex rel. K.O., 217
N.J. 83, 91 (2014). Applying the above standards, we discern no reason the
reverse.
"The established rules of statutory construction govern the interpretation
of a municipal ordinance." Twp. of Pennsauken v. Schad, 160 N.J. 156, 170
(1999). As our Supreme Court has held:
When interpreting a statute, our main objective is to
further the Legislature's intent. To discern the
A-5702-17T4
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Legislature's intent, courts first turn to the plain
language of the statute in question. In reading the
language used by the Legislature, the court will give
words their ordinary meaning absent any direction from
the Legislature to the contrary. "If the plain language
leads to a clear and unambiguous result, then [the]
interpretative process is over."
Where the plain meaning does not point the court to a
"clear and unambiguous result," it then considers
extrinsic evidence from which it hopes to glean the
Legislature's intent. Included within the extrinsic
evidence rubric are legislative history and statutory
context, which may shed light on the drafter's motives.
Likewise, interpretations of the statute and cognate
enactments by agencies empowered to enforce them are
given substantial deference in the context of statutory
interpretation.
[TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J.
533, 540-41 (2010) (alteration in original) (citations
omitted) (first quoting Richardson v. Bd. of Trs., Police
& Fireman's Ret. Sys., 192 N.J. 189, 195 (2007); and
then quoting Bedford v. Riello, 195 N.J. 210, 222
(2008)).]
Courts "will only resort to extrinsic aids . . . if the plain language of the statute
yields 'more than one plausible interpretation.'" State v. Williams, 218 N.J. 576,
586 (2014) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
In considering a statute's language, we are guided by the legislative
directive that:
[W]ords and phrases shall be read and construed with
their context, and shall, unless inconsistent with the
A-5702-17T4
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manifest intent of the legislature or unless another or
different meaning is expressly indicated, be given their
generally accepted meaning, according to the approved
usage of the language. Technical words and phrases,
and words and phrases having a special or accepted
meaning in the law, shall be construed in accordance
with such technical or special and accepted meaning.
[N.J.S.A. 1:1-1.]
It has been long held that when construing a statute in which "the Legislature
has clearly defined a term, the courts are bound by that definition." Febbi v. Bd.
of Review, Div. of Emp't Sec., Dep't of Labor & Indus., 35 N.J. 601, 606 (1961).
There was no need for extrinsic evidence in this case. The plain language
of Ordinance § 212-16 leads to a clear and unambiguous result that, except for
one lighted sign, the Borough intended to prohibit all "signs, billboards,
advertising structures or similar items" in the RC district.
The plain language of Ordinance § 212-3 leads to the clear and
unambiguous result that LED panels are "signs." The ordinance defines "sign"
as "[a]ny device designated to inform or attract the attention of persons not on
the premises on which the sign is located[.]" Although the ordinance does not
define the word "device," that word is commonly defined as "a piece of
equipment or a mechanism designed to serve a special purpose or perform a
special function." Merriam-Webster Online Dictionary, "device,"
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http://www.merriam-webster.com/dictionary/device. The LED panels clearly
are devices designed to inform or attract attention of persons not on defendant's
premises. In fact, defendant referred to the LED panels as "LED informational
panels," and there is no dispute that the LED panels displayed information to the
public, such as the availability of beer and happy hour specials within the resort.
(Emphasis added). Accordingly, the LED panels are "signs" within the meaning
of Ordinance § 212-3.
Lastly, we reject defendant's argument that the LED panels are not
"lighted signs" and that "lighted signs" means only traditional wood signs or
banners that are backlighted or illuminated with directional lighting. LED
means "light-emitting diode," and the term "LED" is commonly defined as "a
semiconductor diode that emits light when a voltage is applied to it and that is
used in electronic devices[.]" Merriam-Webster Online Dictionary, "LED,"
http://www.merriam-webster.com/dictionary/LED. Accordingly, the LED
panels are "lighted signs" governed by Ordinance § 212-16B(3).
We conclude the LED panels are signs governed by the sign ordinance.
The fact that Bay Village and the VFD applied for an obtained a sign permit for
their LED panels in 2006 and 2014, respectively, supports this conclusion.
Defendant violated the sign ordinance by installing the LED panels on its
A-5702-17T4
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building without obtaining a sign permit (Ordinance § 212-16B(4)); without
paying the sign permit fee (Ordinance § 212-16(E)); and installing more than
one lighted sign (Ordinance § 212-16B(3)). Discovery and any ordinance
amendments will not change this result.
III.
Defendant next argues that Judge Collins erred in finding, as a matter of
law and without the benefit of discovery and a factual record, that the Borough
did not selectively enforce the sign ordinance against defendant. Our review of
this issue is limited to whether the judge's findings "could reasonably have been
reached on sufficient credible evidence present in the record." Stas, 212 N.J. at
49. Defendant also argues the judge erred in denying discovery on the selective
enforcement issue.
As an initial matter, defendant is incorrect that selective enforcement
would render the Borough's action arbitrary, capricious or unreasonable, thus
warranting reversal. Rather, the selective enforcement of ordinances, like
statutes, is a violation of the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution. U.S. Const. amend. XIV, § 1;
see Whren v. United States, 517 U.S. 806, 813 (1996) (explaining that the Equal
A-5702-17T4
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Protection Clause "prohibits selective enforcement of the law based on
considerations such as race").
"Discriminatory enforcement of an otherwise impartial law by state and
local officials is unconstitutional." Pennsauken, 160 N.J. at 183. However,
"[t]he conscious exercise of some selectivity in enforcement is not a
constitutional violation unless the decision to prosecute is based upon an
unjustifiable standard such as race, religion, or other arbitrary classification."
Ibid.A party asserting selective enforcement has a "heavy" burden of proof.
State v. Di Frisco, 118 N.J. 253, 266 (1990). As our Supreme Court has held:
In order to prevail on a claim of discriminatory
enforcement, the defendant must plead and prove
intentional selectivity as well as an unjustifiable basis
for the discrimination. "[The] standards require [the
defendant] to show both that the . . . enforcement
system had a discriminatory effect and that it was
motivated by a discriminatory purpose."
[Ibid. (first alteration in original) (quoting Wayte v.
United States, 470 U.S. 598, 608 (1985)).]
"[A] defendant establishes his right to discovery if he can show that he
has a 'colorable basis' for a selective prosecution claim." State v. Kennedy, 247
N.J. Super. 21, 31 (App. Div. 1991). "A more lenient standard would encourage
the assertion of spurious claims of selective enforcement as a means of
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burdening criminal trials with massive discovery of material completely
irrelevant to the defendant's case." Id. at 32. "[A] defendant must also establish
that the materials he seeks are in some way probative of the elements of selective
enforcement." Id. at 34-35.
Defendant failed to demonstrate that the Borough selectively enforced the
sign ordinance against it. Defendant did not claim the Borough's enforcement
of the sign ordinance against defendant was based on an unjustifiable standard
such as race, religion, or other arbitrary classification. Rather, defendant
grounded its selective enforcement argument on its mistaken belief that Bay
Village and the VFD did not apply for and obtain a sign permit for their LED
panels. When that argument failed, defendant then grounded its selective
enforcement on the Borough issuing sign permits to these two businesses, but
not to defendant. Neither of these grounds proves the Borough's enforcement
of the sign ordinance against defendant was based on an unjustifiable standard,
had a discriminatory effect, and was motivated by a discriminatory purpose, let
alone make a "colorable claim" of selective enforcement which would have
entitled it to discovery. For this reason, defendant's selective enforcement
argument fails.
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In any event, defendant ignores the clear distinction between it and Bay
Village and the VFD. Both businesses applied for and received sign permits
prior to installing their LED signs, whereas defendant did not apply for a sign
permit or pay the sign permit fee prior to installing its LED panels. Both
businesses installed one LED panel, whereas defendant installed two LED
panels. Both businesses are located in the business district that did not abut
residential neighborhoods, whereas defendant's resort is located in the RC
multifamily residential district. In addition, residents had complained about
defendant's LED panels, whereas there were no complaints against Bay Village
or the VFD. Thus, to the extent the Borough treated defendant different than
Bay Village or the VFD, that disparate treatment was entirely justifiable, as the
Borough based its actions on defendant's violation of the sign ordinance and the
numerous residents' complaints about the LED panels. Simply put, defendant
failed meet its "heavy" burden to establish a colorable claim of selective
enforcement, and thus, was not entitled to discovery.
Affirmed.
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