NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2280-16T3
KLEIN OUTDOOR ADVERTISING, INC.,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY ZONING BOARD OF ADJUSTMENT,
Defendant-Respondent.
Argued September 13, 2018 – Decided October 2, 2018
Before Judges Ostrer, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2386-15.
Thomas A. Abbate argued the cause for appellant (DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys; Thomas A. Abbate, of counsel and on the brief).
Vincent J. LaPaglia argued the cause for respondent.
PER CURIAM Plaintiff, Klein Outdoor Advertising, Inc., appeals the December 20, 2016
order affirming defendant's, the City of Jersey City Board of Adjustment (the
Board), denial of plaintiff's application seeking minor site plan approval to erect
a digital billboard. Because the trial judge improperly made factual findings and
legal conclusions when the Board abdicated its responsibilities to promulgate a
proper resolution memorializing its denial of plaintiff's application, we reverse
and remand to the Board for a second time to comply with its obligations under
N.J.S.A. 40:55D-10(g).
Plaintiff is the leaseholder of property known as 9 Route 440 in Jersey
City. The property is located in the Port Industrial Zone, which does not permit
off-premises billboards. The Jersey City Master Plan reflects that the Jersey
City Planning Board "declared the vista along the New Jersey Turnpike - Hudson
County Extension to be a 'scenic corridor' meriting significant protections to
match its significant contributions to the history and scenic values of our City,
our State and our Nation." As a result, the Master Plan recommended ordinances
banning all billboards along the entire stretch of the Turnpike Extension in the
City.
In 2014, plaintiff filed an application with the Board seeking approval to
construct a 98-foot high, 20 by 50 feet, double-sided digital billboard on its
A-2280-16T3 2 property. Approval of the application required a (d)(1) variance and one or more
(c) variances because of the substandard lot area and minimum permitted
setbacks.
The Board conducted hearings on plaintiff's application in December 2014
and March 2015. Plaintiff presented six witnesses to support its application,
including a professional engineer, a commercial real estate appraiser, and a
professional traffic engineer and planner. The traffic expert presented a Federal
Highway Administration study concluding digital billboards were not a traffic
hazard. His exhibits demonstrated none of the landmarks denoted in the scenic
corridor plan were visible from the section of the roadway where plaintiff sought
to erect the billboard.
A licensed planner also presented exhibits demonstrating the views in the
scenic corridor and the billboard's location in relation to those views. He opined
there would be no visual impact on the scenic corridor, with the small exception
of the partial obstruction of a church steeple in Bayonne three miles away and
already blocked by a tall communications building.1 The expert also advised the
State had not designated this portion of the highway as a scenic highway.
1 The Master Plan did not reference this church steeple in its listing of specific landmarks and vistas that must remain visible when considering applications for new construction in the City. A-2280-16T3 3 Finally, the planner opined plaintiff satisfied the positive and negative criteria
sufficient to warrant approval of the application. The Board's senior planner,
Tanya Marione, also spoke at the hearing. She noted the City ordinances banned
billboards on the property and reminded the Board of the protections the Master
Plan sought for the scenic corridor. 2 Marione recommended denying the
application.
In an April 15, 2015 Resolution, the Board denied plaintiff's application.
Lacking any factual findings, the Resolution did not address any of the evidence
presented by plaintiff in support of its application. Instead, it referred to general
concepts of zoning law and made unsupported conclusions, including the
following statements: a "use variance is not needed for the property to be
economically viable," the positive and negative criteria were not satisfied, and
the bulk variances "cannot be granted without substantial detriment to the public
good and without substantially impairing the intent and purpose of the zone plan
and zoning ordinance."
2 Marione's report conceded the proposed billboard would "not disrupt or block the scenic corridor of the Jersey City Downtown, Statue of Liberty and New York Skyline."
A-2280-16T3 4 On June 2, 2015, plaintiff filed a complaint in lieu of prerogative writs
challenging the Board's denial of the application. After hearing counsels'
arguments, the trial judge issued an oral decision on May 16, 2016 stating:
[the Board's] findings of facts [were] merely conclusory statements which [were] primarily made up of recitations of the law necessary to obtain a use variance. Klein, as the applicant, submitted into the record the testimony of six witnesses. However, the Board failed to provide any reason as to why the testimony, along with the other exhibits submitted into evidence by Klein, were insufficient to satisfy the positive and negative criteria for the use variance. As such, the [c]ourt [found] the findings of fact made by the Board[,] with respect to the positive and negative criteria, were insufficient.
Because the Board failed to provide a statement of the specific findings
of fact on which it reached its conclusion that the statutory criteria for the
variance were not satisfied, the judge concluded he could not determine whether
the Board acted properly within the limits of its authority. Therefore, the court
remanded the matter to the Board for "reconsideration and specific factual
findings showing how they reached their legal conclusion as to the statutory
criteria for a variance under [N.J.S.A.] 40:55D-70(d)."
The remand order was considered as "old business" during the Board's
July 7, 2016 meeting. In a matter of a few minutes, each Board member
reiterated his or her objections to the application. In a three-page July 21, 2016
A-2280-16T3 5 Supplemental Resolution, the Board made nine factual findings supporting its
denial of plaintiff's application. The Board found:
1. The Applicant's proofs were not sufficient to overcome the staff reports.
2. The staff reports which outlined the proofs that were needed to establish both the positive and negative criteria for the grant of this (d)(1) variance were not met by the Applicant.
3. The Applicant's proofs that a digital billboard was not a safety hazard [were] not persuasive.
4. The Master Plan specifically prohibits billboards in this zone and, thus, the Applicant did not provide "special reasons" to overcome that.
5. One of the Applicant's rationales for the billboard – as a means of posting safety announcements – was dismissed as untenable.
6.
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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-2280-16T3
KLEIN OUTDOOR ADVERTISING, INC.,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY ZONING BOARD OF ADJUSTMENT,
Defendant-Respondent.
Argued September 13, 2018 – Decided October 2, 2018
Before Judges Ostrer, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2386-15.
Thomas A. Abbate argued the cause for appellant (DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys; Thomas A. Abbate, of counsel and on the brief).
Vincent J. LaPaglia argued the cause for respondent.
PER CURIAM Plaintiff, Klein Outdoor Advertising, Inc., appeals the December 20, 2016
order affirming defendant's, the City of Jersey City Board of Adjustment (the
Board), denial of plaintiff's application seeking minor site plan approval to erect
a digital billboard. Because the trial judge improperly made factual findings and
legal conclusions when the Board abdicated its responsibilities to promulgate a
proper resolution memorializing its denial of plaintiff's application, we reverse
and remand to the Board for a second time to comply with its obligations under
N.J.S.A. 40:55D-10(g).
Plaintiff is the leaseholder of property known as 9 Route 440 in Jersey
City. The property is located in the Port Industrial Zone, which does not permit
off-premises billboards. The Jersey City Master Plan reflects that the Jersey
City Planning Board "declared the vista along the New Jersey Turnpike - Hudson
County Extension to be a 'scenic corridor' meriting significant protections to
match its significant contributions to the history and scenic values of our City,
our State and our Nation." As a result, the Master Plan recommended ordinances
banning all billboards along the entire stretch of the Turnpike Extension in the
City.
In 2014, plaintiff filed an application with the Board seeking approval to
construct a 98-foot high, 20 by 50 feet, double-sided digital billboard on its
A-2280-16T3 2 property. Approval of the application required a (d)(1) variance and one or more
(c) variances because of the substandard lot area and minimum permitted
setbacks.
The Board conducted hearings on plaintiff's application in December 2014
and March 2015. Plaintiff presented six witnesses to support its application,
including a professional engineer, a commercial real estate appraiser, and a
professional traffic engineer and planner. The traffic expert presented a Federal
Highway Administration study concluding digital billboards were not a traffic
hazard. His exhibits demonstrated none of the landmarks denoted in the scenic
corridor plan were visible from the section of the roadway where plaintiff sought
to erect the billboard.
A licensed planner also presented exhibits demonstrating the views in the
scenic corridor and the billboard's location in relation to those views. He opined
there would be no visual impact on the scenic corridor, with the small exception
of the partial obstruction of a church steeple in Bayonne three miles away and
already blocked by a tall communications building.1 The expert also advised the
State had not designated this portion of the highway as a scenic highway.
1 The Master Plan did not reference this church steeple in its listing of specific landmarks and vistas that must remain visible when considering applications for new construction in the City. A-2280-16T3 3 Finally, the planner opined plaintiff satisfied the positive and negative criteria
sufficient to warrant approval of the application. The Board's senior planner,
Tanya Marione, also spoke at the hearing. She noted the City ordinances banned
billboards on the property and reminded the Board of the protections the Master
Plan sought for the scenic corridor. 2 Marione recommended denying the
application.
In an April 15, 2015 Resolution, the Board denied plaintiff's application.
Lacking any factual findings, the Resolution did not address any of the evidence
presented by plaintiff in support of its application. Instead, it referred to general
concepts of zoning law and made unsupported conclusions, including the
following statements: a "use variance is not needed for the property to be
economically viable," the positive and negative criteria were not satisfied, and
the bulk variances "cannot be granted without substantial detriment to the public
good and without substantially impairing the intent and purpose of the zone plan
and zoning ordinance."
2 Marione's report conceded the proposed billboard would "not disrupt or block the scenic corridor of the Jersey City Downtown, Statue of Liberty and New York Skyline."
A-2280-16T3 4 On June 2, 2015, plaintiff filed a complaint in lieu of prerogative writs
challenging the Board's denial of the application. After hearing counsels'
arguments, the trial judge issued an oral decision on May 16, 2016 stating:
[the Board's] findings of facts [were] merely conclusory statements which [were] primarily made up of recitations of the law necessary to obtain a use variance. Klein, as the applicant, submitted into the record the testimony of six witnesses. However, the Board failed to provide any reason as to why the testimony, along with the other exhibits submitted into evidence by Klein, were insufficient to satisfy the positive and negative criteria for the use variance. As such, the [c]ourt [found] the findings of fact made by the Board[,] with respect to the positive and negative criteria, were insufficient.
Because the Board failed to provide a statement of the specific findings
of fact on which it reached its conclusion that the statutory criteria for the
variance were not satisfied, the judge concluded he could not determine whether
the Board acted properly within the limits of its authority. Therefore, the court
remanded the matter to the Board for "reconsideration and specific factual
findings showing how they reached their legal conclusion as to the statutory
criteria for a variance under [N.J.S.A.] 40:55D-70(d)."
The remand order was considered as "old business" during the Board's
July 7, 2016 meeting. In a matter of a few minutes, each Board member
reiterated his or her objections to the application. In a three-page July 21, 2016
A-2280-16T3 5 Supplemental Resolution, the Board made nine factual findings supporting its
denial of plaintiff's application. The Board found:
1. The Applicant's proofs were not sufficient to overcome the staff reports.
2. The staff reports which outlined the proofs that were needed to establish both the positive and negative criteria for the grant of this (d)(1) variance were not met by the Applicant.
3. The Applicant's proofs that a digital billboard was not a safety hazard [were] not persuasive.
4. The Master Plan specifically prohibits billboards in this zone and, thus, the Applicant did not provide "special reasons" to overcome that.
5. One of the Applicant's rationales for the billboard – as a means of posting safety announcements – was dismissed as untenable.
6. Placing digital billboards on the scenic corridor is an offense to the intent and purpose of the Master Plan and would have a negative impact on Jersey City.
7. The Applicant's safety study was not persuasive.
8. The Applicant's proposed use would interfere with the scenic vistas the Master Plan protected and was in direct conflict with the goals of the Master Plan.
9. The application could not me[e]t the negative criteria necessary to grant a use variance.
A-2280-16T3 6 The same trial judge reviewed the Supplemental Resolution and heard oral
argument. On December 20, 2016, the judge issued a comprehensive oral
decision spanning forty-four pages of transcript in which he made detailed
factual findings and legal conclusions regarding economic inutility and viability,
and positive and negative criteria. Concluding plaintiff had failed to
demonstrate the Board's decision was arbitrary or capricious, the court dismissed
plaintiff's complaint. This appeal followed.
"Ordinarily, when a party challenges a zoning board's decision through an
action in lieu of prerogative writs, the zoning board's decision is entitled to
deference." Kane Props, LLC v. City of Hoboken, 214 N.J. 199, 229 (2013).
Due to "their peculiar knowledge of local conditions," zoning boards "must be
allowed wide latitude in the exercise of delegated discretion." Price v. Himeji,
LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J.
268, 296 (1965)).
We do not "disturb the discretionary decisions of local boards that are
supported by substantial evidence in the record and reflect a correct application
of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment
of N. Caldwell, 160 N.J. 41, 58-59 (1999). However, here, the Board failed to
comply with its obligation to render a decision supported by the substantial
A-2280-16T3 7 evidence in the record, and the trial court erred in making its own factual
findings supporting the Board's denial of the application. Therefore, we are
constrained to reverse the trial court order and again remand to the Board.
Under N.J.S.A. 40:55D-10(g), a planning board's decision must include
factual findings and conclusions based on its findings, referring to facts and
testimony presented at the hearing. The Board must explain how its factual
findings support the ultimate legal conclusions. Loscalzo v. Pini, 228 N.J. Super.
291, 305 (App. Div. 1988).
In reviewing the April 16, 2015 Resolution, the trial judge properly
determined the Board's findings were insufficient to deny plaintiff's application.
Although the judge instructed the Board on remand to make "specific factual
findings" supporting its conclusions, the Board disregarded those directions, and
produced a second Resolution still devoid of the requisite factual findings to
support denying the application.
Instead of requiring the Board to supplement its conclusory findings with
facts and testimony from the record a second time, the trial judge evaluated the
application and testimony presented at the Board's hearings and made his own
factual findings on the record. Understandably, the trial judge may have desired
to bring to a close the protracted proceedings in the case. However, it was not
A-2280-16T3 8 the court's province to do the work assigned to the Board. Where the Board's
Supplemental Resolution failed to comply with the requirements of N.J.S.A.
40:55D-10(g) because it did not sufficiently demonstrate, with reference to
established facts and testimony presented, that denying plaintiff's application
was appropriate, a remand to the Board is the only remedy. "Where findings of
fact are inadequate, the remedy is not for the court to make a decision on the
merits of an application but to remand for adequate fact finding." Smith v. Fair
Haven Zoning Bd., 335 N.J. Super. 111, 123 (App. Div. 2000).
Therefore, we reverse the December 20, 2016 order, remanding to the
Board to comply with N.J.S.A. 40:55D-10(g) and make sufficient factual
findings supporting its denial of plaintiff's application, with reference to the
facts and testimony presented by plaintiff, including the Board's reasoning for
rejecting plaintiff's experts' testimony. See Morris Cty. Fair Hous. v. Boonton
Tp., 228 N.J. Super. 635, 647 (Law Div. 1988) (instructing that in making
factual findings, a board must consider all of the evidence presented, "rather
than merely accepting as factual every statement made by its own planning
consultant"). Although we discern no evidence of bias on the part of the trial
judge, we are constrained to direct that a different trial judge be assigned to hear
the matter upon the inevitable submission of a third Resolution to the trial court,
A-2280-16T3 9 because the trial judge here made findings of fact regarding plaintiff's
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
A-2280-16T3 10