LAMAR ADVERTISING OF PENN, LLC v. TOWNSHIP OF UNION

NOT FOR PUBLICATION WITHOUT THE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

                                     3                              A-3760-15T1
            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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