NJ Appeals Court Again Upholds Denial of Digital Billboard on New Jersey Turnpike

Digital billboards continue to spur land use litigation in New Jersey. In Klein Outdoor Advertising, Inc. v. City of Jersey City Zoning Board of Adjustment, the Appellate Division of the New Jersey Superior Court upheld a zoning board’s decision to deny an application to construct a digital billboard on property abutting the New Jersey Turnpike Extension.

This was the second time the case had come before the Appellate Division. The first time around, the appeals court remanded the case after concluding that the trial court had made its factual findings based upon the City of Jersey City Zoning Board of Adjustment’s (Board or Defendant) factually unsupported denial of Plaintiff Klein Outdoor Advertising, Inc.’s (Klein or Plaintiff) application. In its latest decision, the court affirmed the trial court’s order approving Jersey City Zoning Board’s denial of the application, agreeing that the Board’s resolution was not arbitrary, capricious, or unreasonable.

Requirements Under N.J.S.A. 40:55D-10(g)

N.J.S.A. 40:55D-10(g) mandates that municipal zoning boards “include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing.” As the Appellate Division explained in New York SMSA v. Board of Adjustment:

The factual findings set forth in a resolution cannot consist of a mere recital of testimony or conclusory statements couched in statutory language.  Rather, the resolution must contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant’s variance request in accordance with the statute and in light of the municipality’s master plan and zoning ordinances. Without such findings of fact and conclusions of law, the reviewing court has no way of knowing the basis for the board’s decision.

Facts of the Case

Klein 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 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, Klein filed an application with the Board seeking approval to construct a 98-foot high, 20 by 50 feet, double-sided digital billboard on its  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 denied Klein’s application; however, its Resolution lacked specific factual findings. Instead of requiring the Board to supplement its conclusory findings with facts and testimony, the trial judge evaluated the application and testimony presented at the Board’s hearings and made his own factual findings on the record. On appeal, the Appellate Division reversed and remanded to defendant “to comply with N.J.S.A. 40:55D-10(g) and make sufficient factual findings supporting its denial of plaintiff’s application.”

The Jersey City Zoning Board subsequently reaffirmed its decision in a resolution with supplemental findings of fact. These additional findings: critiqued the testimony of three of plaintiff’s experts; provided reasons why defendant’s planner was more persuasive than plaintiff’s experts; asserted the proposed billboard could not meet the negative criteria because it would be an “eyesore on the scenic” New Jersey Turnpike; concluded that denying the use variance would not be a hardship to plaintiff, a proposed tenant; stated plaintiff failed to establish the proposed billboard was not inconsistent with the intent and purpose of Jersey City’s Master Plan; and held, for the reasons in defendant’s planner’s expert reports, the proposed billboard would be inconsistent with the intent and purpose of Jersey City’s Master Plan.

The trial court concluded that the Board’s determination was sound and not arbitrary or capricious. It specifically found that the Board duly considered the competing opinions of the experts who testified and made specific enough findings to support their conclusion to accept as credible the City’s expert testimony over that of Klein’s experts. It also concluded that due consideration was given by the Board to the impact on the view and whether the proposed use would conflict with the master plan, and the record supported the Board’s conclusion that the proposed use would be contrary to the master plan.

Appellate Division’s Decision

In a per curium opinion, the Appellate Division affirmed the trial court’s order approving Jersey City Zoning Board’s denial of plaintiff’s application. “Because the court’s decision was supported by the findings in the record, we affirm,” the panel wrote.

In reaching its decision, the appeals court rejected Klein’s argument that the resolution was merely “conclusory.” As the court explained:

It was more substantial and detailed than the July 2016 resolution. As stated, the resolution critiqued the testimony of three of plaintiff’s experts; provided reasons why Jersey City’s planner was more persuasive than plaintiff’s experts; asserted the proposed billboard could not meet the negative criteria because it would be an “eyesore on the scenic” New Jersey Turnpike; concluded that denying the use variance would not be a hardship to plaintiff, a proposed tenant; stated plaintiff failed to establish the proposed billboard was not inconsistent with the intent and purpose of Jersey City’s Master Plan; and held, for the reasons stated in Jersey City’s planner’s expert reports, the proposed billboard would be inconsistent with the intent and purpose of Jersey City’s Master Plan. We are satisfied the resolution adequately “analyzed [plaintiff’s] . . . variance request in accordance with the statute and in light of the municipality’s master plan and zoning ordinances.”

The Appellate Division also rejected Klein’s assertion that Board erred in considering the positive and negative variance criteria. “In the supplemental findings of fact in the third resolution, defendant addressed and rejected plaintiff’s professional planner’s opinion that the use variance met the positive and negative criteria,” the panel wrote. “The resolution stated that granting the application and permitting the construction of a proposed billboard would damage the scenic corridor protected in the Master Plan and would be a ‘substantial detriment to the public good.’”

Finally, the Appellate Division dismissed Klein’s argument that it offered sufficient proofs of hardship and economic inutility. “[A]s found by the trial court, the record is devoid of evidence concerning the creation of the property as it exists today,” the court wrote. “Therefore, the property is not eligible for hardship status.”

Key Takeaway

As highlighted by the Appellate Division’s decision, it is essential that zoning boards comply with N.J.S.A. 40:55D-10(g) by supporting their conclusions with specific findings of fact. If you have questions about the court’s decision in Klein Outdoor Advertising, Inc. v. City of Jersey City Zoning Board of Adjustment we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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