On a de novo review, a reviewing court will not "defer to interpretive conclusions by the trial court."
How later courts described this case
- On a de novo review, a reviewing court will not "defer to interpretive conclusions by the trial court."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-3622-23
GARDEN STATE OUTDOOR, LLC,
Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT
OF MIDDLE TOWNSHIP and THE
TOWNSHIP OF MIDDLE TOWNSHIP,
Defendants-Respondents.
__________________________________
Argued November 6, 2025 – Decided February 25, 2026
Before Judges Mayer, Paganelli and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0304-22.
Justin D. Santagata argued the cause for appellant
(Cooper Levenson, attorneys; Justin D. Santagata and
Samantha Edgell, on the briefs).
Michael V. Madden argued the cause for respondents
(Madden & Madden, PA, attorneys; Michael V.
Madden, on the brief).
PER CURIAM
This appeal follows an application by plaintiff Garden State Outdoor LLC
(Garden State) to defendant Zoning Board of Adjustment of Middle Township
(Board), for variance relief to install an off-premises billboard contrary to the
Township of Middle Township's (Township) zoning ordinance. After the Board
denied the application, Garden State filed an action in lieu of prerogative writ s
seeking to declare the ordinance unconstitutional and vacate the Board's
variance denial as arbitrary, capricious, or unreasonable.
Garden State appeals from the trial court's order denying its motion for
summary judgment and granting the Township's and the Board's cross-motions
for summary judgment determining the Township ordinances are constitutional.
In addition, Garden State appeals from the trial court's order finding the Board's
denial of its application for variance relief was not arbitrary, capricious, or
unreasonable, and dismissing its action in lieu of prerogative writs.
Because we conclude the Township's ordinances are constitutional and the
Board's decision to deny the variance was not arbitrary, capricious , or
unreasonable, we affirm. We consider Garden State's constitutional arguments
under section I and its variance arguments under section II.
A-3622-23
2
I.
A.
We glean the undisputed facts from the record on the parties' motions for
summary judgment. In 1964, the Township's Master Plan1 detailed the history
of the Township and emphasized the importance of preserving its physical
characteristics. It also recognized tourism provided a lucrative industry in the
Township.
In 1969, the Township adopted the "Zoning Ordinance of Middle
Township" (Ordinance). Article II of the Ordinance provided:
In their interpretation and application the
provisions of this Ordinance shall be held to be the
minimum requirements adopted for the promotion of
the public health, safety and welfare. To protect the
public, among other purposes, such provisions are
intended to provide for the lessening of traffic
congestion; the securing of safety from fire, panic and
other dangers; the protection of health, morals and the
general welfare; the securing of adequate light and air;
the prevention of overcrowding of land and buildings;
the avoidance of undue concentration of population; the
conservation of property values and the encouragement
1
"In New Jersey, the master plan is the centerpiece of land use planning.
Pursuant to the M[unicipal] L[and] U[se] L[aw (MLUL)], it is 'a composite of
one or more written or graphic proposals for the development of the
municipality.' [(Quoting)] N.J.S.A. 40:55D-5. It may be adopted by a municipal
planning board only after a public hearing, [(citing)] N.J.S.A. 40:55D-28."
Nigro v. Plan. Bd. of Saddle River, 122 N.J. 270, 279 (1991).
A-3622-23
3
of the most appropriate use of land throughout the
Township.
Further, "signs" were addressed in Article XVIII. Section one of this
Article provided:
It is the intent of the Township in the creation of
requirements for signs and outdoor advertising, to make
provision for the advertising of goods and services in
such a manner that property values and the general
safety and welfare of the community's residents and
visitors will be preserved and protected.
Further, Section two "Permitted Signs" provided:
Signs, billboards, and all forms of outdoor
advertising shall not be erected, placed, painted, or
hung in any [Zoning] District except as hereinafter
provided[:]
a. General provisions of all districts[:]
(1) All signs shall be located on the
same property with the use, firm,
facility, business, product, service or
organization they advertise, unless
otherwise provided in this Ordinance
....
Moreover, Section four "Non-Conforming Signs" provided:
Signs, billboards[,] and all forms of outdoor
advertising existing at the time of adoption of this
Ordinance which are not in conformance with its
requirements shall not be continued, replaced,
repainted, or re-hung in any district except as
hereinafter provided.
A-3622-23
4
In the Township's September 1991 Master Plan, its stated goals included:
"[m]aintain[ing] the character and integrity of each community within the
Township"; "[p]romot[ing] consistency among local, county . . . bodies"; and
"[p]reserv[ing] and enhanc[ing] the historic, cultural, and recreational aspects
and the visual environment of the Township."
In 1995, the Township amended the Ordinance and left the billboard
prohibition in place. In its 1996 "Master Plan Re-Examination Report," the
Township reiterated the goals from the 1991 Master Plan and stated "[r]ecent
commercial developments within the . . . [applicable a]rea have been required
to adhere to stringent standards regarding signage. . . ."
In 2002, the Township again amended the Ordinance to provide a "general
sign requirement" as follows:
Any sign proposed to be placed in the Township
. . . is subject to review and approval . . . . The
regulation of signs under this Article is intended to
ensure that proposed signage: is compatible with
current surrounding land uses, creates a more attractive
economic and business climate within the commercial
and industrial areas of the Township, protects and
enhances the physical appearance of all areas and
reduces the distractions, obstructions and hazards to
pedestrian and auto traffic caused by the indiscriminate
placement and use of signs.
A-3622-23
5
In its 2003 Master Plan, the Township repeated the goals stated in its 1991
and 1996 plans. Further, in its 2010 "Master Plan Re[-]examination Report,"
the Township reiterated its 2003 goals and, as to its "Historic, Cultural and
Aesthetic Resources," stated it sought to "[p]reserve the unique and cultural
resources of the Township that provide historical continuity" and "[p]reserve
and enhance the historic and cultural . . . aspects and the visual environment of
the Township." The Township noted the importance of its aesthetic resources
in its 2010 "Natural Resources Inventory."
In 2012, the Township again amended the Ordinance. The introduction to
the amendment states: "[T]he 2010 Master Plan lists as one of its goals and
objectives to '[u]pdate sign standards that promote safety while discouraging
sign proliferation[.]'" The Ordinance prohibits "billboards." The purpose of the
sign regulation was to:
(1) Ensure that the proposed signage is compatible with
surrounding land uses[;]
(2) Create a more attractive economic and business
climate within the commercial areas of the Township[;]
(3) Protect and enhance the physical appearance of all
areas[;]
(4) Reduce the distractions, obstructions and hazards to
pedestrian and auto traffic caused by the indiscriminate
placement and use of signs[;]
A-3622-23
6
(5) To protect the historic character of the Cape May
Court House Overlay District by Ensuring that signage
is aesthetically compatible[; and]
(6) Effectuate the [M]aster [P]lan goal to "[u]pdate sign
standards that promote safety while discouraging sign
proliferation."
In its 2020 "Master Plan Re[-]examination Report," the Township stated
the 2010 goal to "[u]pdate sign standards that promote safety while discouraging
sign proliferation . . . was accomplished through updated sign standards" and
the goal to "preserve and enhance the historic and cultural . . . aspects and visual
environment of the Township" was "a continuing goal."
The 2022 Cape May County's Comprehensive Plan stated its "Vision
Statement and Goals and Objectives" were to "build upon its strengths and grow
in an environmentally and economically sustainable manner, while inspiring
actions that preserve what makes it a special place to live, work, and play."
B.
Garden State moved for partial summary judgment to declare the
Township's ordinance banning billboards unconstitutional. Garden State argued
the billboard ban was both facially unconstitutional and an impermissible time,
place, and manner regulation of speech. The Township and Board cross-moved
for partial summary judgment seeking to have the billboard ban deemed
A-3622-23
7
constitutional. The trial court denied Garden State's motion and granted the
Township's and Board's cross-motions.
The trial court issued a thirteen-page written decision accompanying its
order. In its decision, the court determined the ordinance was not facially
unconstitutional. The trial court found the Township "is a historical community
. . . such that its interests in aesthetics and historical authenticity are important
government interests." The court found that "dating back to 1964," the
"Township['s] Master Plan" noted the Township's "concern for preserving the
aesthetic nature of its community." Moreover, the preservation goals were "re-
examined on numerous occasions." The trial court also found the Township had
a "strong need to maintain its governmental interests through its longstanding
town-wide ban of all billboards that [w]as . . . established and consistently
updated since 1969." The trial court rejected the idea that the Township was
"simply invoking aesthetics" to support the billboard ban. Moreover, it
determined "[t]he Township's content-neutral blanket prohibition of billboards
[wa]s constitutional because it serve[d] an important government interest and
d[id] not burden any more speech than necessary to achieve its goal."
Next, the trial court rejected Garden State's argument that the ordinance
was unconstitutional because it was not a reasonable time, place, or manner
A-3622-23
8
regulation. The trial court applied the Clark/Ward2 test as required by E & J
Equities, LLC v. Board of Adjustment of the Township of Franklin, 226 N.J.
549 (2016). The trial court stated it was "satisfied" the ordinance was "content
neutral[] and narrow[ly] tailor[ed] to serve a recognized and identified
government interest." Further, the court found:
The only form of communication restricted by the
Township's Ordinance is off-premises advertising,
electronic billboards and those that do not comply with
certain height and width requirements. [Garden State]
ha[s] numerous alternative means at their disposal as
mentioned in Interstate Outdoor Advertising, L.P. v.
Zoning Board of Mount Laurel, 706 F.3d 527, 535
(3d Cir. 2013), including mail, internet, on-premises
advertising, radio, etc.
[(Citation reformatted).]
Further, the court held the ordinance left open alternative channels of
communication, such as "on-premises signs, internet advertising, direct mail,
radio, newspapers, television, advertising circulars, advertising flyers,
commercial vehicle sign advertising, and public transportation advertising."
2
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984); Ward v. Rock
Against Racism, 491 U.S. 781 (1989).
A-3622-23
9
C.
On appeal, Garden State argues the trial court erred because the
Township's ordinance is facially unconstitutional under Bell v. Stafford, 110
N.J. 384 (1988), and, even if the Township can overcome facial
unconstitutionality, the ordinance cannot pass a constitutional challenge as a
reasonable time, place, and manner regulation under Clark/Ward.
We review the grant of summary judgment de novo, applying the same
legal standards as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529
(2019). Under Rule 4:46-2(c),
[t]he judgment or order sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of
law. An issue of fact is genuine only if, considering the
burden of persuasion at trial, the evidence submitted by
the parties on the motion, together with all legitimate
inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of
fact.
"The factual findings of a trial court are reviewed with substantial
deference on appeal, and are not overturned if they are supported by 'adequate,
substantial and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217
A-3622-23
10
N.J. 99, 115 (2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J.
282, 293 (2001)).
"If there is no genuine issue of material fact, we must then 'decide whether
the trial court correctly interpreted the law.'" Depolink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We
review issues of law de novo and accord no deference to the trial judge's
conclusions of law. See Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (On a
de novo review, a reviewing court will not "defer to interpretive conclusions by
the trial court."). "A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Zaman v. Felton, 219 N.J. 199, 216 (2014) (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In considering the constitutionality of a government regulation affecting
speech, we begin with the First Amendment of the United States Constitution
which provides: "Congress shall make no law . . . abridging the freedom of
speech . . . ." U.S. Const. amend. I. The New Jersey Constitution, Article I,
Paragraph 6 provides: "Every person may freely speak, write and publish his
sentiments on all subjects, being responsible for the abuse of that right . No law
A-3622-23
11
shall be passed to restrain or abridge the liberty of speech or of the press. . . ."
N.J. Const. art. I, ¶6. "Because our State Constitution's free speech clause is
generally interpreted as co-extensive with the First Amendment, federal
constitutional principles guide [our] analysis." E & J Equities, 226 N.J. at 568
(quoting Twp. of Pennsauken v. Schad, 160 N.J. 156, 176 (1999)).
Facially Unconstitutional
Garden State contends the trial court erred in concluding the ordinance
was not facially unconstitutional because this matter is controlled by Bell.
Garden State asserts that "Bell struck down this exact ban" and thus the court
"need go no further." (Emphasis omitted). We disagree.
In Bell, the New Jersey Supreme Court considered the "first amendment
and freedom of speech concerns" that arose from the "enactment and
enforcement of an ordinance declaring that '[b]illboards, signboards, and off-
premises advertising signs and devices [we]re prohibited within any zoning
district of the Township.'" 110 N.J. at 387 (first alteration in original).
The Court stated when "an enactment directly impinges on a
constitutionally protected right . . . [c]ourts are far more demanding of clarity,
specificity and restrictiveness with respect to legislative enactments that have a
demonstrable impact on fundamental rights." Id. at 395. Therefore, when "an
A-3622-23
12
ordinance infringes on a fundamental right, 'the burden is upon the municipality
to articulate the objectives of [the] . . . ordinance.'" Ibid. (alteration in original)
(quoting Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 371
(1987)). Further, "[t]he municipality must satisfactorily demonstrate a
legitimate governmental interest that is to be served by the enactment and
demonstrate a reasonable factual basis indicating that the regulation advances
the governmental interest and is no more expansive than necessary in advancing
that interest." Ibid.
The Court noted "[i]t reasonably appear[ed] from the record that the
curtailment effected by the ordinance would apply to both commercial forms of
expression as well as noncommercial speech, which could include political
expressions." Ibid. Thus, "the ordinance directly and drastically encroache[d]
on a fundamental constitutional interest, freedom of speech and expression" and
"[b]ecause noncommercial speech [wa]s implicated, the burden of overcoming
the charge of constitutional invalidity [wa]s particularly strenuous." Ibid.
In considering the record, the Court determined "[t]he ordinance fail[ed]
to reveal either its particular governmental objectives or its factual
underpinnings." Id. at 396. Instead, "the record [wa]s almost completely devoid
of any evidence concerning what interests . . . [we]re served by the ordinance
A-3622-23
13
and the extent to which the ordinance ha[d] advanced those interests." Ibid. The
Court contemplated that "preserving aesthetics" and "promoting traffic safety"
could be legitimate interests. Ibid. However, even assuming the presence of
those interests, "there ha[d] been no demonstration of the factual basis for . . . a
total municipal-wide ban." Ibid. The Court stated "[t]his clearly implicate[d]
an important prong in the test of constitutional validity: that this ordinance
constituted the least restrictive means possible by which to serve such an
interest." Id. at 396-97.
In addition, the Court found "there ha[d] been no adequate showing that
the ordinance left open alternative means of communication with the audience
that was reached by the medium that [wa]s prohibited by the ordinance," id. at
397, and there is a "burden of showing that there were reasonably equivalent
forms of communication available." Ibid.
Therefore, the Court was "constrained to declare [the ordinance] facially
unconstitutional" because there was a "failure to justify the passage of such a
broad and encompassing ordinance that substantially curtail[ed] freedom of
speech and expression." Id. at 398.
Nevertheless, the Court noted:
This does not mean that [a governmental entity] is
incapacitated from enacting an ordinance seeking to
A-3622-23
14
further a proper governmental objective and suitably
restricted to meet that objective and satisfy the
constitutional imperatives . . . in light of the problems
pecul[i]ar to that municipality. Our only determination
here is that the ordinance in question facially infringes
on a fundamental right without sufficient support in the
record to justify its validity.
[Ibid.]
Therefore, Bell stands for the proposition that a government ban on
billboards that is not supported by actual interests that are tethered to the ban,
and fails to offer alternative means of communication, will not facially
withstand constitutional scrutiny. Bell does not sweep as broadly as Garden
State suggests, that is, to nullify all billboard prohibitions. Indeed, Bell held the
opposite when there is "a proper governmental objective and [regulation]
suitably restricted to meet that objective" are present. Ibid.
Here, applying Bell, we conclude the Township's ordinance is not facially
unconstitutional. First, there is no factual dispute regarding the Township's
historic and substantial interest in protecting its aesthetics. The Township
codified this interest nearly sixty years ago and has consistently reaffirmed its
interest in preserving the municipality's aesthetic qualities in the years since.
Moreover, the ordinance prohibiting off-premises billboards is reasonably suited
A-3622-23
15
to achieve the goal of maintaining aesthetics while allowing for alternative
means of communication.
Time, Place, and Manner
Garden State contends the Township's billboard ban fails the Clark/Ward
time, place, and manner test. Garden State acknowledges the ordinance is
content neutral. Further, Garden State notes "it is certainly true and correct that
'aesthetics' are a substantial interest." However, Garden State argues the ban is
not narrowly tailored to aesthetics. Moreover, as to reasonable alternative
means of communication, Garden State argues "[m]ail takes days"; "[i]t is not
clear what the trial court meant by 'internet'"; "'[o]n-premises advertising' is
literally the opposite of off-premises"; and "[r]adio is not locale-specific or
triggered by passing through an area." (Emphasis omitted).
In E & J Equities, the New Jersey Supreme Court considered an
"ordinance that permit[ted] billboards, subject to multiple conditions, in a
zoning district proximate to an interstate highway but expressly prohibit [ed]
digital billboards anywhere in the municipality." 226 N.J. at 556.
The Court noted:
Billboards of any kind are subject to considerable
regulation. Regulations on billboards are justified
because "signs take up space and may obstruct views,
distract motorists, displace alternative uses for land,
A-3622-23
16
and pose other problems that legitimately call for
regulation. It is common ground that governments may
regulate the physical characteristics of signs[.]"
[Id. at 567 (alteration in original) (quoting City of
Ladue v. Gilleo, 512 U.S. 43, 48 (1994)).]
The Court "conclude[d] that an ordinance or statute regulating signs,
including billboards of any form, and affecting commercial as well as
noncommercial speech should be examined in accordance with the Clark/Ward
time, place, and manner standard." Id. at 580. Under that standard, the
government, "must demonstrate that the prohibition . . . is content neutral, that
it is narrowly tailored to serve a recognized and identified government interest,
and that reasonable alternative channels of communication exist to disseminate
the information sought to be distributed." Id. at 582 (citing Ward, 491 U.S. at
791; Clark, 468 U.S. at 293).
The Court explained to determine "whether an ordinance is narrowly
tailored, the inquiry is whether it 'promotes a substantial government interest
that would be achieved less effectively absent the regulation.'" Ibid. (quoting
Ward, 491 U.S. at 799). Further, "[a] restriction on speech may not substantially
burden more speech than necessary to further the government interest, but
identification of another alternative that might be less restrictive of speech to
achieve the desired end does not render the ordinance invalid." Ibid. (citing
A-3622-23
17
Ward, 491 U.S. at 798-99). The Court "recognize[d] that the Township was not
required to adopt the least restrictive means to further its interests." Id. at 584;
see Ward, 491 U.S. at 798 ("Lest any confusion on the point remain, we reaffirm
today that a regulation of the time, place, or manner of protected speech must
be narrowly tailored to serve the government's legitimate, content-neutral
interests but that it need not be the least restrictive or least intrusive means of
doing so.").
The Court stated, "there c[ould] be little, if any, debate that the
[o]rdinance [wa]s content neutral." Id. at 582. Indeed, the Court stated the "ban
of digital billboards addresse[d] a manner of communication, not its content."
Ibid. "[H]owever, in the face of a record founded only on unsupported
suppositions, fears, and concerns," the Court did not "address whether the course
taken by the governing body [wa]s reasonable under all of the circumstances."
Id. at 585.
Further, the Court "acknowledge[d] that aesthetics and public safety are
generally considered to be substantial governmental interests, particularly in the
context of regulations affecting billboards." Id. at 556. Nevertheless, "simply
invoking aesthetics and public safety to ban a type of sign, without more, does
not carry the day." Id. at 557. Instead, "the record must support, to some degree,
A-3622-23
18
the interests that the municipality seeks to protect or advance," ibid., and "there
must be a modicum of support for the invoked government interest." Id. at 583.
In this respect, the Court concluded the record was "founded only on
unsupported suppositions, fears, and concerns." Id. at 585. It stated, "a
governing body . . . cannot simply invoke those interests with scant factual
support informing its decision-making and expect to withstand a constitutional
challenge." Ibid.
As it did in Bell, the Court noted the township was not precluded from
adopting a regulation. It stated:
We do not suggest that no municipal restriction
on off-premises digital billboards or multiple message
centers can pass constitutional muster. . . . [W]e do not
consider the ban adopted by the [t]ownship a complete
ban on a form of communication but rather a restriction
on a subset of off-premises signage. A more robust
factual record in support of the cited government
interests deemed substantial may satisfy the
Clark/Ward standard.
[Ibid.]
Here, the parties agree that the Township's ordinance is content neutral.
We determine there is no basis to disagree with their positions. Nevertheless,
we add that in City of Austin, Texas v. Reagan National Advertising of Austin,
LLC, the United States Supreme Court noted "thousands of jurisdictions around
A-3622-23
19
the country . . . regulate[] signs that advertise things that are not located on the
same premises as the sign, as well as signs that direct people to offsite locations.
These are known as off-premises signs, and they include, most notably,
billboards." 596 U.S. 61, 64 (2022).
In City of Austin, "the [c]ity's sign code defined the term 'off-premise sign'
to mean 'a sign advertising a business, person, activity, goods, products, or
services not located on the site where the sign is installed, or that directs persons
to any location not on that site.'" Id. at 66. The Court held "the . . . off-premises
distinction requires an examination of speech only in service of drawing neutral,
location-based lines. It is agnostic as to content. Thus, absent a content-based
purpose or justification, the City's distinction is content neutral and does not
warrant the application of strict scrutiny." Id. at 69.
The Court explained:
[E]nforcing the . . . challenged sign code provisions
requires reading a billboard to determine whether it
directs readers to the property on which it stands or to
some other, offsite location. . . . [T]he City's provisions
at issue here do not single out any topic or subject
matter for differential treatment. A sign's substantive
message itself is irrelevant to the application of the
provisions; there are no content-discriminatory
classifications for political messages, ideological
messages, or directional messages concerning specific
events, including those sponsored by religious and
nonprofit organizations. Rather, the . . . provisions
A-3622-23
20
distinguish based on location: A given sign is treated
differently based solely on whether it is located on the
same premises as the thing being discussed or not. The
message on the sign matters only to the extent that it
informs the sign's relative location. The on-/off-
premises distinction is therefore similar to ordinary
time, place, or manner restrictions.
[Id. at 71.]
Here, we similarly conclude the Township's ordinance is content neutral.
However, that conclusion "does not end the First Amendment inquiry." Id. at
76.
Under Clark/Ward, we next consider whether the ordinance "is narrowly
tailored to serve a recognized and identified government interest." E & J
Equities, 226 N.J. at 582. See also City of Austin, 596 U.S. at 76. In this respect,
we do not disturb the trial court's factual finding, amply supported in the record,
that the Township "is a historical community . . . such that its interests in
aesthetics and historical authenticity are important government interests." The
Township memorialized these interests nearly sixty years ago and has re-
examined and reaffirmed these interests in the years since. We conclude the
Township has a historical and substantial interest in preserving its aesthetics.
Further, we conclude the Township's prohibition of off-premises billboards is
narrowly tailored to address its interests.
A-3622-23
21
Lastly, under Clark/Ward, we consider whether "reasonable alternative
channels of communication exist to disseminate the information sought to be
distributed." Ibid. The requirement cannot be satisfied by requiring the
Township to establish the banned speech can be exactly replicated by an
alternative channel of communication. To hold the Township to that standard
would undermine any regulation. "[T]he First Amendment does not guarantee
the right to communicate one's views at all times and places or in any manner
that may be desired." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc.,
452 U.S. 640, 647 (1981). Instead, restrictions must "leave open ample
alternative channels for communication of the information." Clark, 468 U.S. at
293. By applying this standard, we conclude the Township satisfied the
"reasonable alternative" prong under Clark/Ward.
Here, applying Clark/Ward, we conclude the Township's ordinance
satisfies the time, place, and manner test.
II.
Garden State contends that if the ordinance is declared unconstitutional,
its intended use would be permitted, and a remand is necessary for the Board to
consider its application. Based on our foregoing constitutional analysis, we
reject this contention without further comment.
A-3622-23
22
In addition, Garden State argues the trial court erred in upholding the
Board's denial of its application because the Board lacked substantial evidence
for the denial. We consider the merits of this argument.
We glean the relevant facts and procedural history from record before the
Board. Garden State's application sought
a . . . use variance to permit two principal uses on one
property, a D(1) use variance to permit an electronic
message billboard, 'C' variance relief in relation to
maximum sign height (20ft. is permitted whereas 45ft.
is proposed), maximum number of freestanding signs
(1 freestanding sign is permitted whereas 2 freestanding
signs are proposed), and maximum sign are (40[ square
foot] is permitted whereas 378[ square foot] is
proposed), and waivers in relation to providing a
community impact statement, a traffic study, and an
environmental impact statement.
In its memorializing resolution, the Board stated it gave careful
consideration to Garden State's application, testimony, and evidence. It noted
"[t]he subject property is located in the Township's TC (Town Center) zoning
district and it is currently developed with a motel." Garden State was "proposing
to implement a second principal use, an electronic message billboard, at the
subject property." The resolution noted "[b]illboards are a prohibited use
throughout the Township necessitating a use variance." In addition, the Board's
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23
resolution stated "[a] use variance [wa]s also required in order to permit a second
principal use on one site."
Garden State's counsel appeared at the Board's hearing and presented an
outline of the application and the relief sought. The Board noted, at the outset,
counsel indicated Garden State "was willing to reduce the height of the proposed
billboard to 35ft." Further, counsel explained the site was viable because it was
"adjacent to a highly trafficked roadway," "not located in close proximity to
residential properties," and "there are large signs which exist throughout the
surrounding neighborhood." Counsel noted "the TC zone permits on premise
signs."
Garden State's counsel explained the "billboard utilizes
state[-]of[-]the[-]art technology which ensures that advertisements are only
visible to vehicles traveling along the roadway. The advertisements . . . are
static and contain no scrolling text, flashing lights, or moving images. The
billboard contains an auto-dimmer which will increase/decrease brightness
during daytime and nighttime hours." Moreover, the billboard would "advertise
both commercial and non-commercial speech" and "serve[] the general welfare
of the community" by "market[ing] local businesses and convey[ing] emergency
information when needed."
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Garden State presented the testimony of Jason Sciullo, a professional
engineer and professional planner with Sciullo Engineering Services, LLC.
Sciullo testified regarding the proposed site plan. Sciullo's testimony included
a site rendering and "several photographs of the subject property which were
received by the Board." Sciullo stated billboards existed along Route 47,
however, "those billboards [we]re approximately 96[ feet] wide and are located
at ground level whereas the billboard proposed by [Garden State] measures
10.5[ feet] x 36[ feet] and w[ould] be elevated approximately 35[ feet] above
grade." Sciullo noted the "advertisements depicted on the proposed billboard
will not be visible to residential properties due to auto-dimming features and
technology which orients the advertisement so that same is only visible to
vehicles on the roadway."
In his testimony, Sciullo "cited a 2014 Driver Visual Behavior Study
conducted by the National Highway Traffic Safety Administration which
evaluated distracted drivers and their responses to billboard advertisements ."
Based on this study, he opined "billboards are safe and cause limited distractions
to drivers."
Further, he "reviewed and discussed the New Jersey Department of
Transportation [(NJDOT)] regulations pertaining to billboards." While noting
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"ground level billboards have been deemed to be a safety issue and
moving/scrolling signs are prohibited by the NJDOT," Sciullo explained Garden
State's billboard would "be 35[ feet] tall and it w[ould] not contain scrolling or
moving text."
Sciullo testified Garden State was "requesting two D(l) use variances, one
to permit two principal uses at the subject property and the other to permit the
proposed billboard use." He noted "the TC zone allows signs to have a
maximum area of 400[ square feet] in connection with large shopping centers"
and the "Board Engineer Vincent Orlando noted that the size of shopping center
signs is tied to the size of the lot and the size of the building which allows for
larger signs in connection with larger scale shopping centers."
In support of Garden State's advancing "the purposes of zoning, outlined
within N.J.S.A. 40:55D-2," Sciullo testified it:
a. Encourages municipal action to guide
the appropriate use or development of all
lands in this State, in a manner which will
promote the public health, safety, morals,
and general welfare;
b. Secures safety from fire, flood, panic
and other natural and man-made disasters;
g. Provides sufficient space in appropriate
locations for a variety of agricultural,
residential, recreational, commercial and
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industrial uses and open space, both public
and private, according to their respective
environmental requirements in order to
meet the needs of all New Jersey citizens;
and
m. Encourages coordination of the various
public and private procedures and
activities shaping land development with a
view of lessening the cost of such
development and to the more efficient use
of the land.
In addition, Sciullo testified "the application can be granted as there are
no substantial detriments to the public good and the application d[id] not impair
the intent or purpose of the Township's zone plan or zoning ordinance." Further,
"the proposed billboard . . . advance[d] several goals and objectives outlined
within the Township Master Plan" because "it support[ed] existing businesses,"
would "provide financial assistance to the owner of the subject property to assist
with the redevelopment of the entire site," and "serve[d] the general welfare of
the community."
Board members questioned whether the billboard could be relocated to a
different location. However, Sciullo "testified that billboards [we]re prohibited
from being located" in the suggested location, as the location was "designated
as a historic site." Further, "Board Members expressed significant concerns
about the size of the proposed billboard in relation to the surrounding
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neighborhood. Board Members took issue with the fact that the proposed
billboard would be significantly larger than any existing sign located in the
surrounding neighborhood and would not be consistent with same."
In response, Garden State indicated it was "willing to reduce the size and
height of the proposed billboard in order to address the concerns raised by the
Board." Counsel advised the Board that Garden State would "reduce the size of
the proposed billboard to 10.5[ feet] x 30[ feet]." After additional discussion,
Garden State indicated it would "further reduce the size of the proposed
billboard to 12[ feet] x 25[ feet] and reduce [its] height . . . to 30[ feet]."
Nevertheless, the Board "continued to take issue with the size of the
proposed billboard" because it "would still significantly exceed the size of all
existing signs located in the surrounding neighborhood."
After the conclusion of Garden State's presentation, a neighboring
property owner testified that he was concerned regarding the "impact that the
proposed billboard would have on the surrounding community" and "was
opposed to the size and location of the proposed billboard." No members of the
public provided any other comments in support or opposition to the application.
The Board accepted Sciullo "as an expert in the fields of engineering and
land planning" and found his testimony to be credible. Nevertheless, during the
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Board's deliberations its members continued to "express[] concerns in
connection with the [a]pplication and the relief sought." The "Board Members
agreed that the subject property [wa]s not particularly suited to accommodate
the proposed use as the size of the billboard proposed . . . [wa]s significantly
larger than the size of permitted and existing signs in the surrounding TC zone."
The Board expressed concerns "in relation to the height of the proposed
billboard and the overall size of same and the impact that it would have on
neighboring properties and vehicle traffic in the neighborhood" and "in relation
to public safety and the impact that the rotating advertisements would have on
vehicle safety and the general public."
The Board found "that the purposes of zoning . . . would not be advanced
in connection with th[e] application and same d[id] not support the relief
requested"; "the proposed billboard would impair the intent and purpose of the
zone plan and zoning ordinance as same presents a substantial detriment to the
aesthetics of the neighborhood"; and "the proposed development would be
detrimental to the surrounding neighborhood . . . [because] the requested
variances were not appropriate and were contrary to the Township's Master Plan,
its Zoning Ordinance, and the TC Zone Plan."
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The Board "determined that the relief requested" could not "be granted
without substantial detriment to the public good and without substantially
impairing the intent and purpose of the zoning plan and zoning ordinance," and
denied Garden State's application.
In conducting its review, the trial court considered the witnesses'
testimony, the Board members' deliberations, and the Board's resolution denying
Garden State's application. The court reviewed the application under N.J.S.A.
40:55D-70(d).
The trial court considered "whether there was evidence in the record
supporting the Board's determination that [Garden State] did not
overwhelmingly meet all three prerequisites to obtaining variance relief." The
court stated, "even if [Garden State] met all the positive criteria . . . [it] d[id] not
satisfy the negative criteria because the application diverges from the
Township's ordinance and zoning plan."
The trial court noted the Township's concession that the "TC zoning
district permit[ted] billboards up to 400 square feet" but also noted "those signs
[w]ere located within large centers." Further, the court found "the Township's
Master Plan . . . ha[d] long been in existence and expresses a consistent will of
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the Township's residents throughout the ages to preserve the open air and
aesthetic beauty and nature of the Township." The court concluded:
Board's enjoy great deference and [Garden State] has
the heavy burden of proving that the evidence presented
to the [B]oard was so overwhelming in favor of the
applica[tion] that the [B]oard's action can be said to be
arbitrary, capricious, or unreasonable. The Board's
record contains that even at [a] reduced size . . . , the
proposed billboard is at odds with Township zoning
interests. Accordingly, [Garden State] has failed to
satisfy the negative criteria articulated in N.J.S.A.
40:55D-70. Thus, the Board's denial of
[Garden State]'s application was not arbitrary,
capricious, or unreasonable.
On appeal, Garden State argues the trial court erred because the Board
"lacked substantial evidence to deny the [a]pplication." Garden State contends
it "established that the [p]roperty is particularly suited for the Billboard and that
its location will mitigate the purported negative effects normally associated with
it." It avers the Board's "planner conceded, the [b]illboard is consistent with
larger signs for on-premises speech" and "[t]he trial court agreed that Garden
State satisfied the positive criteria."
In addition, Garden State contends it also satisfied the "negative criteria"
because "the zoning effect of on-premises versus off-premises speech is the
same . . . the zoning itself acknowledges the ability of the zone to accommodate
a [b]illboard because it already permits on-premises speech"; "[d]igital
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billboards now allow dimming and other technological features to address the
purported 'problems' of static billboards"; "the 'safety concerns' . . . were rejected
in E & J Equities and rejected in unrebutted testimony by Garden State[]"; and
"the [b]illboard is consistent with the height limitation for principal uses in the
zone."
"Our standard of review for the grant or denial of a variance is the same
as that applied by the Law Division." Advance at Branchburg II, LLC v.
Branchburg Twp. Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013)
(citing Bressman v. Gash, 131 N.J. 517, 529 (1993)). "The role of a court
reviewing a decision by a board of adjustment is strictly circumscribed[.]" N.Y.
SMSA Ltd. P'ship v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 164
(App. Div. 1999). "[B]ecause of their peculiar knowledge of local conditions,"
local boards are "allowed wide latitude in the exercise of their delegated
discretion." Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306
(1967). A board's actions are thus presumed valid, and "the party attacking such
action has the burden of proving otherwise." N.Y. SMSA Ltd. P'ship, 324 N.J.
Super. at 163.
"It is well-settled that a decision of a zoning board may be set aside only
when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning
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Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J.
1, 15 (1987)). "[A]rbitrariness or unreasonableness . . . have been interpreted to
mean 'willful and unreasoning action, without consideration and in disregard of
circumstances.'" Seaview Harbor Realignment Comm., LLC v. Twp. Comm.,
of Egg Harbor, 470 N.J. Super. 71, 94 (App. Div. 2021) (quoting D'Anastasio
Corp. v. Twp. of Pilesgrove, 387 N.J. Super. 247, 251 (Law Div. 2005)).
A "[b]oard's factual conclusions are entitled to great weight and . . . ought
not be disturbed unless there is insufficient evidence to support them." Rowatti
v. Gonchar, 101 N.J. 46, 52 (1985). However, "[w]e are ordinarily not bound
by an agency's determination on a question of law." Advance at Branchburg,
433 N.J. Super. at 252 (citing In re Distrib. of Liquid Assets, 168 N.J. 1, 11
(2001)). Further, "a municipal board's construction of its own ordinances is
reviewed de novo." Ibid. We "[n]evertheless, . . . 'recognize the board's
knowledge of local circumstances and accord deference to its interpretation. '"
Id. at 252 (quoting Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J.
Super. 552, 562 (App. Div. 2004)).
"Where there is room for two opinions, action is [valid] when exercised
honestly and upon due consideration, even though it may be believed that an
erroneous conclusion has been reached." Worthington v. Fauver, 88 N.J. 183,
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204-05 (1982) (alteration in original) (quoting Bayshore Sewerage Co. v. Dep't
Env't Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973)). Therefore, "[t]he court
will not substitute its judgment for that of the board, and the board's action will
be set aside only if the court finds a clear abuse of discretion." N.Y. SMSA Ltd.
P'Ship, 324 N.J. Super. at 164.
Under N.J.S.A. 40:55D-70(d)(1), the Board has the power to "[i]n
particular cases for special reasons, grant a variance to allow departure from
regulations . . . to permit[] . . . a use . . . in a district restricted against such use
. . . ." However,
[n]o variance or other relief may be granted under the
terms of this section, including a variance or other relief
involving an inherently beneficial use, without a
showing that such variance or other relief can be
granted without substantial detriment to the public good
and will not substantially impair the intent and the
purpose of the zone plan and zoning ordinance.
[Ibid.]
"The statute requires proof of both positive and negative criteria." Sica v.
Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992). As to "positive criteria,
the applicant must establish 'special reasons' for the grant of the variance." Ibid.
"The negative criteria require proof that the variance 'can be granted without
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substantial detriment to the public good' and that it 'will not substantially impair
the intent and the purpose of the zone plan and zoning ordinance.'" Ibid.
In determining whether a board properly exercised its discretion, "[c]ourts
give greater deference to variance denials than to grants of variances, since
variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of
Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001).
"Where a board of adjustment has denied a variance, the plaintiff has the heavy
burden of proving that the evidence presented to the board was so
overwhelmingly in favor of the applicant that the board's action can be said to
be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of
Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).
Under N.J.S.A. 40:55D-10(g)(2), the Board is required to pass a resolution
and "include findings of fact and conclusions based thereon in each decision on
any application for development and shall reduce the decision to writing." "It
is the resolution, and not [the] board members' deliberations, that provides the
statutorily required findings of fact and conclusions." N.Y. SMSA, L.P. v. Bd.
of Adjustment of Weehawken, 370 N.J. Super. 319, 334 (App. Div. 2004).
"Zoning boards may choose which witnesses, including expert witnesses,
to believe." Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409
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N.J. Super. 389, 434 (App. Div. 2009). "However, to be binding on appeal, that
choice must be reasonably made." Ibid. "In addition, the choice must be
explained" and "[t]he board cannot rely upon unsubstantiated allegations." Id.
at 434-35.
Applying these well-established principles, we conclude Garden State
failed to establish the Board's denial was arbitrary, capricious, or unreasonable.
The Board's resolution clearly stated its conclusion that Garden State failed to
establish the positive and negative criteria. The Board's decision is adequately
supported by the factual record. We will not substitute our judgment for the
Board's. Moreover, Garden State has not provided "overwhelming" evidence to
convince us that the Board's denial was arbitrary, capricious, or unreasonable.
See Med. Realty Assocs., 228 N.J. Super. at 233.
To the extent we have not addressed any other arguments raised by Garden
State, we are satisfied they are without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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