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NOT FOR PUBLICATION WITHOUT THE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-0346-24
GARDEN STATE OUTDOOR, LLC,
Plaintiff-Appellant,
v.
CITY OF SOMERS POINT and
CITY OF SOMERS POINT
ZONING BOARD,
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, Atlantic County, Docket No. L-0143-23.
Justin D. Santagata argued the cause for appellant
(Cooper Levenson, attorneys; Justin D. Santagata, on
the briefs).
Thomas G. Smith argued the cause for respondents.
PER CURIAM
This appeal follows an application by plaintiff Garden State Outdoor LLC
(Garden State) to defendant City of Somers Point Zoning Board (Board), for
variance relief to install an off-premises billboard contrary to the City of Somers
Point's (City) zoning ordinance. After the Board denied the application, Garden
State filed an action in lieu of prerogative writs 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 finding the ordinance
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 City's ordinance is 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.
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2
I.
A.
In 2010, the City created a subcommittee to review its sign ordinances and
regulations. In 2011, the Board engaged Mott Associates, LLC (Mott) "to
review . . . recommendations . . . to update and revise its Development Ordinance
relative to signs." The Mott report noted the City's "find[ing] that billboards
detract from the natural and manmade beauty of the City, and are not allowed as
a sign type or an allowed business use within the City." Mott "was to review [a]
proposed ordinance and determine if the proposed zoning amendments are
consistent with the [City]'s Master Plan [1] Land Use Element and later re-
examination reports."
The Mott report noted in accordance with its Master Plan of 1979, the City
adopted a Zoning Ordinance to retain, in part, the: "City's predominantly
residential character"; "protection of open space and natural resources of the
community"; City's "historical features"; and "provision for the safe and
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-0346-24
3
efficient movement of vehicles and pedestrians." As to signs, "the City desired
not to have off-site commercial signs permitted within the residential zoning
districts." Indeed, "[a]ny signs promoting off-site commercial signage were
prohibited due to the fact that it was not desired in the residential
neighborhoods."
The Mott report explained the 1998 and 2004 Master Plan Re-examination
Reports, "had referenced the goals and specific recommendations to review and
revise the sign development regulations." The Mott report noted the
re-examination reports recommended a goal "to 'discourage some of the
promotional displays so that they are not continuous and to prohibit other
promotional displays which are tacky.'" Therefore, the Mott report explained,
"the City inserted specific language within the land use ordinance to prohibit
certain signage, one specific sign, a 'billboard.'" A billboard was defined as: "A
sign or structure or portion thereof which directs attention to a product, business,
service or entertainment conducted, sold or offered elsewhere than upon the lot
on which such sign is situated and designed." (Italicization omitted). Billboards
were prohibited because "the City did not consider these signs to promote the
public health, safety or general welfare nor does it promote a desirable visual
environment."
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Further, the Mott report stated specific design considerations include "the
number and type of signs, sign locations, sign heights and sign sizes" with size
and height being "the most important and stringent requirements." This was
deemed necessary "to control the scenic vistas along the roadways within the
City and to not clutter the community with undesirable features as to large and
intrusive signs."
The Mott report noted the City's goals of "scenic vistas"; avoiding a
"strident, hectic atmosphere"; and "open space and natural resources" were not
promoted by billboards. Instead, billboards "present visual clutter and provide
no natural benefit to the community." Moreover, billboards "take[] away the
distinctiveness [and charm] of the [C]ity."
Further, the Mott report cited a 2006 National Highway Traffic Safety
Administration report that concluded billboards are distracting and create "a
safety hazard" and to the Manual on Uniform Traffic Control Devices that stated
billboards were a large distraction and competed with road signage.
The Mott report concluded:
The proposed sign ordinance . . . clearly defines
[that] the purpose, intent and scope is to promote the
public health, safety and general welfare . . . . [T]he
purpose and intent of this ordinance is not only
consistent with the Master Plan of the City but is
substantially consistent with all of the re[-]examination
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5
reports. . . . By prohibiting billboards within the [C]ity,
it protects the open space and natural resources of the
community, retains the community's historic features
and provides for the safe and efficient movement of
vehicles and pedestrians.
The Board conducted a public hearing regarding the proposed ordinance.
The Board considered the Mott report and testimony, and deemed the proposed
ordinance consistent with the Master Plan.
In reviewing the proposed ordinance, the City considered the Mott report,
as well as other reports, studies, and articles regarding billboards and the impact
that billboards have on traffic safety and aesthetics. The City then adopted the
ordinance. The ordinance bans the construction of off-site signs, known as
"billboards" or "commercial billboards" in Highway Commercial Zoning
District two (HC-2).
Under the ordinance, § 114A-3, "billboard" is defined as:
A sign structure and/or sign utilized for: advertising an
establishment, an activity, a product or service or
entertainment that is sold, produced[,] manufactured,
available or furnished; or promoting any activity,
including noncommercial activity and solicitation, such
as but not limited to charitable solicitation and
noncommercial speech, at a place other than on the
property on which said sign structure and/or sign is
located.
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Garden State challenged the constitutionality of the ordinance by filing a
complaint in lieu of prerogative writs against the City and the Board. After
hearing oral argument, the trial court found the ordinance was content -neutral
and the City's "rationale . . . is unequivocal in that the City determined that
billboards have a deleterious effect on both aesthetics and traffic safety." The
court noted "[t]his determination was supported by the comprehensive study
completed prior to the adoption of the ordinance." Moreover, accepting that
rationale, the court concluded, "a city-wide ban is the only available avenue to
achieve th[e] goal and . . . [thus,] the ordinance is as narrowly tailored as
possible to achieve th[e] goal."
Further, the trial court considered "whether reasonable alternative
channels of communication exist to disseminate the information sought to be
distributed." In this respect, the court stated:
A non-exclusive list of alternate channels of
communication would include non-billboard on-site
signage, internet advertising, direct mail, radio,
newspapers, television, circulars and flyers,
commercial vehicle signage, public transportation
signage, and here at the Jersey Shore, airplane banners
as available avenues to commercial enterprisers.
Therefore, the trial court found "that Section 114A of the City['s] . . .
ordinance is constitutional."
A-0346-24
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B.
On appeal, Garden State argues the trial court erred because the City's
ordinance is facially unconstitutional under Bell v. Stafford, 110 N.J. 384
(1988), and even if the City can overcome facial unconstitutionality, the
ordinance cannot pass a constitutional challenge as a reasonable time, place, and
manner regulation under E & J Equities LLC v. Board of Adjustment of the
Township of Franklin, 226 N.J. 549 (2016).
"Where a constitutional challenge is raised, we are required to conduct a
de novo review . . . ." Saffos v. Avaya, Inc., 419 N.J. Super. 244, 264 (App.
Div. 2011); see also State v. Dalal, 467 N.J. Super. 261, 280 (App. Div. 2021)
("Appellate courts apply a de novo standard when determining the
constitutionality of a statute."). We "defer to the trial court's factual findings so
long as they are supported by sufficient, credible evidence in the record." Id. at
259-60 (quoting 30 River Ct. E. Urb. Renewal Co. v. Capograsso, 383 N.J.
Super. 470, 476 (App. Div. 2006)).
In considering the constitutionality of a government regulation affecting
speech, we begin with the First Amendment of the United States Constitution
that provides: "Congress shall make no law . . . abridging the freedom of speech
. . . ." U.S. Const. amend. I. The New Jersey Constitution, Article I, Paragraph
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8
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 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 [b]an" 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,
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9
specificity and restrictiveness with respect to legislative enactments that have a
demonstrable impact on fundamental rights." Id. at 395. Therefore, when "an
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.
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
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]
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10
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 stated "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; 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
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.]
A-0346-24
11
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 City's ordinance is not facially
unconstitutional. First, there is no factual dispute regarding the City's historic
and substantial interest in protecting its aesthetics and traffic safety. The City's
interest is stated in its Master Plan and subsequent re-examination reports.
Moreover, the ordinance prohibiting off-premises billboards is reasonably suited
to achieve the goal of maintaining aesthetics and traffic safety while allowing
for alternative means of communication.
Time, Place, and Manner
Garden State contends the City's billboard ban fails the Clark/Ward time,
place, and manner test. Garden State acknowledges the ordinance is content
neutral. Further, Garden State recognizes "'safety' can be a substantial interest,"
however, "saying 'safety' is not enough" and the record supporting the 2011
A-0346-24
12
ordinance is "overcome" by "the more recent and competent evidence presented
by Garden State." Garden State notes "[t]here was no evidence or testimony to
the contrary before the Board" and a "plenary hearing was necessary,"
presumably before the trial court. In addition, while Garden State concedes that
"aesthetics are a substantial interest," it argues the ordinance was not narrowly
tailored to address that interest. Moreover, Garden State argues the ordinance
"leaves no reasonably equivalent alternative means of communication to a
billboard."
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[ted]
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,
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)).]
A-0346-24
13
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 [2]
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
Ward, 491 U.S. at 798-99). The Court "recognize[d] that the Township was not
2
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984); Ward v. Rock
Against Racism, 491 U.S. 781 (1989).
A-0346-24
14
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." E & J Equities, 226 N.J. at 583. 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,
the interests that the municipality seeks to protect or advance," ibid., and "there
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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 City's ordinance is content neutral. We see
no basis to disagree with their positions. Nevertheless, we add that in City of
Austin v. Reagan National Advertising of Austin, LLC, the United States
Supreme Court stated "thousands of jurisdictions around the country . . .
regulate[] signs that advertise things that are not located on the same premises
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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
distinguish based on location: A given sign is treated
differently based solely on whether it is located on the
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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 City'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 City had a substantial interest in aesthetics and traffic safety. The City
memorialized these interests in its Master Plan and subsequent re-examination
reports. Moreover, its ordinance was adopted after a detailed and
comprehensive study regarding a billboard's impact on those interests.
Garden State's arguments regarding the evidence before the Board, to
support the safety aspects of the ordinance, and the need for a plenary hearing
are misplaced. The Board was not tasked with considering a constitutional
challenge to the ordinance. Indeed, "[i]t is not the function of the board of
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18
adjustment or the planning board to decide constitutional questions . . . ."
Messer v. Burlington Twp., 172 N.J. Super. 479, 487 (Law Div. 1980); see also
N.J.S.A. 40:55D-25 (delineating the express powers a planning board may
exercise). Moreover, although here Garden State suggests a plenary hearing was
necessary before the trial court, Garden State took the position that "there[ wa]s
no need for a [p]lenary [h]earing." Further, we conclude the City's prohibition
of off-premises billboards is narrowly tailored to address its interests in
aesthetics and traffic safety.
Lastly, under Clark/Ward, we consider whether "reasonable alternative
channels of communication exist to disseminate the information sought to be
distributed." E & J Equities, 226 N.J. at 582. The requirement cannot be
satisfied by requiring the City to establish the banned speech can be exactly
replicated by an alternative channel of communication. To hold the City 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,
452 U.S. 640, 647 (1981). Instead, restrictions must "leave open ample
alternative channels for communication of the information." Clark, 468 U.S. at
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293. By applying this standard, we conclude the City satisfied the "reasonable
alternative" factor under Clark/Ward.
Here, applying Clark/Ward, we conclude the City's ordinance satisfies the
time, place, and manner test.
II.
Garden State contends that if the ordinance is declared unconstitutional,
its application would only be subject to the remaining valid portions of the City's
sign regulations. Based on our foregoing constitutional analysis, we reject this
contention without further comment.
Next, we consider Garden State's argument that the Board's denial of its
application was arbitrary, capricious, or unreasonable. In its memorializing
resolution, the Board stated Garden State applied "to request a waiver of site
plan approval, a 'c' variance and two 'd' variances for the construction of a
double-sided digital advertising sign and support column." 3 The Board stated
Garden State intended to erect the billboard under a lease for real property
located in the City.
In its memorializing resolution, the Board stated it: (1) received Garden
State's application, a billboard location plan, and other documents in support of
3
N.J.S.A. 40:55D-70(c) and N.J.S.A. 40:55D-70(d).
A-0346-24
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the application; (2) received an aerial photograph of the property, a photograph
of the proposed billboard signage, and "rendered photographs of each side of the
proposed billboard sign"; (3) heard from Garden State's counsel; (4) heard
testimony from Jason T. Sciullo, a qualified New Jersey licensed professional
engineer and planner, and Adam Burkett, one of the principals of Garden State;
(5) heard from two members of the public; and (6) received the report of Board
Engineer, Matthew F. Doran, and incorporated it into the resolution.
In addition, the Board's resolution stated its "findings and conclusions"
which, it noted, are reflected in the record. The Board noted "[t]he [p]roperty is
located in the . . . HC-2 . . . , which allows primarily for highway commercial
uses." However, "[b]illboards are not permitted in the HC-2 . . . ."
The resolution notes counsel provided an introduction to the application.
Counsel explained "the size, location and operation of the proposed sign. He
noted that the sign would essentially be facing the commercial district, will
advertise both businesses and community events, and is not a moving billboard."
Further, counsel "pointed out that the New Jersey Department of Transportation
("NJDOT") had approved the size of the proposed billboard up to 670 s[quare]
f[eet]" and Garden State "is only seeking a sign of 378 s[quare] f[eet]." In
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addition, "animation will [not] appear on the proposed sign" and "the proposed
billboard meets the national standards for brightness."
The resolution noted that Sciullo is a licensed engineer and planner. The
Board accepted Sciullo as a qualified expert for the hearing. Further, the
resolution stated "Sciullo described the location of the proposed billboard" and
presented "a map showing the proposed . . . location." In addition, Sciullo
"described the stone-faced pillar that w[ould] hold up the billboard." Sciullo
indicated that the billboard "would have height of 45[ feet] and is a proposed
double-sided digital sign measuring 10.5[ feet] X 36[ feet], for a total sign area
of 378 [square feet]." He "reiterated . . . the proposed billboard sign could be
used for community-based messaging such as amber alerts, which could
constitute a tremendous benefit to the community."
The resolution detailed Sciullo's testimony regarding whether the
proposed billboard would cause a distraction. Sciullo stated the NJDOT "found
the proposed location acceptable for up to 670 [square feet] of billboard . . .
therefore, the proposed signage of 378 [square feet] was appropriate in size" and
a Federal Highway Administration study "on the effects of billboard signage on
driver distraction found that billboards are not a cause of driver distraction."
Moreover, Sciullo stated the proposed billboard would "look similar to most
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22
other signs in Somers Point" and would "not be visible from Somers Mansion
property or from any residential areas." Sciullo noted the billboard would
"automatically dim at night."
As to "positive criteria," Sciulli stated "the application advances several
purposes of zoning under the MLUL, including promoting the general welfare"
by "providing messages for community-based events," an "appropriate location
for a variety of uses, and encouraging the coordination of various public and
private activities shaping land development."
Further, Sciulli testified the application achieved the goals of the Master
Plan because the billboard would "support existing businesses." Sciulli noted
the "proposed billboard . . . would not be a detriment to the public good."
As to the "c(2)" front yard setback variance, Sciulli relied on the same
reasoning to support the "(d)" variances. He noted the "[p]roperty is particularly
well suited for the proposed billboard and the general welfare will be served by"
the billboard.
The resolution also detailed that Board members' inquired about the
billboard's "proximity to the historic Somers Mansion Property" and the
percentage of local advertisers that would use the billboard. As to the latter,
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23
Burkett advised that Garden State has an advertising sales force and "[a]n actual
percentage was not" available.
Two members of the public spoke during the public portion of the hearing.
One inquired about whether the billboard would extend over the roadway and
was advised it would not. The other individual, Garden State's intended
landlord, stated "all local businesses . . . would be allowed to advertise on the
billboard." Doran did not testify during the hearing but instead relied on his
report.
According to the Board's resolution, the members voted seven to zero to
deny the application. In the resolution, the Board stated it found:
[T]he application was not consistent with the City's
Zoning Ordinance or Master Plan, that [Garden State]
failed to prove special reasons to support the granting
of the required "d" variances, and had not adequately
presented a case and had not met its burden for the
Board to grant site plan waiver and the "c" and "d"
variance relief . . . under the requirements of the
MLUL. In addition, the Board made the following
additional findings of fact and conclusions of law, and
decision:
A. The Board finds that pursuant to N.J.S.A.
40:55D-70(d)(1), d(6) and c(2), the purposes of the
[MLUL] would not be advanced by deviations or
departures from the requirements of the Zoning
Ordinance and that the benefits of the requested
variances will not substantially outweigh the
detriments. Further, the Board finds that the requested
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variance relief will cause substantial detriment to the
public good and will substantially impair the intent and
the purpose of the zone plan of the City . . . and the
Zoning Ordinance.
B. In terms of negative criteria (that granting the
variances will not cause substantial detriment to the
public good or substantially impair the intent and
purpose of the City . . . zone plan or Zoning Ordinance),
the Board finds that the [billboard] will have substantial
negative impacts and will cause substantial detriments
to the public good, and that the overall benefits from
granting the requested variances will be substantially
outweighed by the detriments.
For these reasons, the Board finds that the
variance relief is not warranted and should be denied.
The Board finds that in reaching its decision, it has
considered [Garden State]'s entire proposal rather than
only the detriments from the [proposed billboard] and
each requested deviation.
The trial court stated it carefully reviewed the transcript of the Board's
hearing and found the Board gave "reflective and mindful consideration of
[Garden State']s application." The court found the "Board members were
provided with copies of the application and plans submitted" by Garden State.
Moreover, the Board was provided with Doran's report which "was considered
and incorporated into the record."
In addition, the trial court found the Board received the testimony of
Sciullo on behalf of Garden State. The court noted "Sciullo testified as to the
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nature of the application and set forth his opinion that [Garden State] had
evidenced special reasons for the granting of the ["d"] variances and had
satisfied both the positive and negative criteria." The court noted "[t]he Board
was free to accept or reject, all or a portion of, [Sciullo's] testimony."
The trial court found "[t]he record is clear that the . . . Board rejected
[Garden State]'s expert's testimony and did not find that [Garden State] had
evidenced special reasons (purpose of zoning) for the granting of the ["d"]
variances." Moreover, the court found "the record is replete with findings . . .
incorporated into the memorializing resolution, that the proposed development
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."
The court stated:
After a complete review of the record, including
a transcript of the hearing before the . . . Board,
[Garden State]'s submissions, the Board's
engineer/planners report, the Board's findings of fact
set forth on the record and the memorializing
[r]esolution . . . th[e c]ourt f[ound] that the decision of
the . . . Board was more than fully supported by the
record and the decision to deny the application was not
arbitrary, capricious[,] and unreasonable.
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Garden State argues the trial court erred in upholding the Board's decision
because the Board's conclusory resolution fails to set forth a factual basis for the
denial. Instead, Garden State contends it "established that the Property is best
suited for the billboard and that its location will mitigate the purported negative
effects normally associated with a billboard."
Garden State argues the "sole cited reason for denial of the
[a]pplication"—the effect on "Somers Point Mansion"—is not explained in the
resolution. Moreover, it contends there was "unrebutted testimony . . . that the
billboard on this [p]roperty would be at the most advantageous angle to
ameliorate any supposed effect." In addition, Garden State argues the Board
fails to explain the same effect from "other signs" in the same zone.
Further, Garden State contends the Board's reliance on the effect on
Somers Point Mansion is misplaced because the mansion is located in another
zone. Garden State argues "[i]t is well-settled that a local land use board may
not apply neighboring zoning purposes to the zone for which a use variance is
sought." Further, the Somers Point Mansion is in a zone to protect historic
properties and there is nothing historic about the zone in which it sought the
variance, and the property of the intended billboard is "separated from the
Somers Point Mansion by a four-lane thoroughfare."
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Garden State argues it "satisfied the negative criteria by 'enhanced quality
of proof' because the surrounding uses and signs establish reconciliation with
the zoning." Further, it contends "[d]igital billboards now allow dimming and
other technological features to address the purported 'problems' of static
billboards" and "'safety' concerns . . . were rejected in E & J Equities" and by
the "unrebutted testimony by [its] planner."
Moreover, Garden State asserts "[t]here are two forms of height variances,
a '(d)(6)' heigh[t] variance where the height 'exceeds 10 feet or 10% [of] the
maximum height permitted,' or a bulk variance for height where the deviation is
less than that."
Garden State contends it "could prove special reasons for a height
variance" because: (1) "the billboard was no higher than it needed to be to serve
its purpose"; (2) the billboard "was consistent with, or only slightly higher than,
permitted signage in the 'HC-2 Zone'"; and (3) "the technology of a digital
billboard was able to ameliorate purported negative effects of a billboard."
Further, for the same reasons, it "was entitled to a bulk variance for principal
front set[]back, which was only necessitated because the sign itself exceeds the
principal front set[]back requirement; the portion on the ground."
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Lastly, Garden State contends "[t]he Board's resolution contains
contradictory and passing references to a 'use variance' for two principal uses."
It states the trial court "did not address this in its dismissal." Nevertheless, it
argues "the one-principal-use issue does not matter because a billboard is not a
principal use under the [City] Code."
"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. v. Zoning Bd.
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29
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 Fallon Prop., LLC v. Bethlehem Twp. Planning 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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30
204-05 (1982) (alteration in original) (quoting Bayshore Sewerage Co. v. Dep't
Env't Prot., 122 N.J. Super. 184, 189 (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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32
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 states 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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