SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1425-19T1

KLEIN OUTDOOR

ADVERTISING, INC., 

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY ZONING

BOARD OF ADJUSTMENT, 

 

Defendant-Respondent.

Argued October 19, 2020 – Decided

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-0662-19.

Thomas A. Abbate argued the cause for appellant 

(DeCotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys; 

Thomas A. Abbate, of counsel and on the briefs).

Vincent J. La Paglia argued the cause for respondent.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 8, 2020
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For the second time, we consider plaintiff's appeal from the trial court's

order affirming defendant's decision which denied plaintiff's application seeking 

approval to construct a digital billboard on its property along the New Jersey 

Turnpike Extension in Jersey City. Because the court's decision was supported 

by the findings in the record, we affirm.

The facts and procedural history are detailed in our earlier opinion and 

need not be repeated here. Klein Outdoor Advert., Inc. v. City of Jersey City 

Zoning Bd. of Adjustment, No. A-2280-16 (App. Div. Oct. 2, 2018) (slip op. at 

7). Because we concluded that the trial court made its own factual findings due 

to defendant's factually unsupported denial of plaintiff's application, we 

reversed and remanded to defendant "to comply with N.J.S.A. 40:55D-10(g) and 

make sufficient factual findings supporting its denial of plaintiff's application."

Id. at 9.

On the second remand, defendant reaffirmed its decision in a resolution 

with supplemental findings of fact. These additional findings: critiqued the 

testimony of three of plaintiff's experts; provided reasons why defendant's 

planner was more persuasive than plaintiff's experts; asserted the proposed 

billboard could not meet the negative criteria because it would be an "eyesore 

on the scenic" New Jersey Turnpike; concluded that denying the use variance 
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would not be a hardship to plaintiff, a proposed tenant; stated plaintiff failed to 

establish the proposed billboard was not inconsistent with the intent and purpose 

of Jersey City's Master Plan; and held, for the reasons in defendant's planner's 

expert reports, the proposed billboard would be inconsistent with the intent and 

purpose of Jersey City's Master Plan. The resolution incorporated its

supplemental findings of fact:

1. The findings contained in the Resolutions dated 

April 16, 2015 and July 21, 2016 are incorporated 

herein by reference.

2. The testimony of the Applicant's traffic engineer and 

opinion that, among other conclusions, the location was 

safe, did not present an undue distraction nor detract 

from the scenic corridor were rejected as not credible.

3. The testimony of the Applicant's professional 

planner and opinion that the use variance met the 

positive and negative criteria for approval was also 

rejected. Specifically, the Board rejected same as it 

found a billboard in this location would damage the 

scenic corridor protected in the City's Master Plan.

4. The testimony of the Applicant's real estate expert 

and opinion that the site was suited for a billboard was 

not determinative of the issue before the Board. The 

Board found there could be other more appropriate uses 

for the property.

5. The expert opinion expressed by the City's planner 

both in her two memos to the Board and her testimony 

before the Board [was] more persuasive and was 

adopted by the Board for, among other reasons, as more 
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fully set forth in the memos and the expert planner's 

testimony, that:

(a) No special reasons exist for the 

granting of this use variance as the use 

neither serves the public good nor did the 

Applicant prove an undue hardship nor did 

the use serve the general welfare; and

(b) That the use could not be granted 

without substantial detriment to the public 

good; and

(c) Moreover, the use variance here is 

inconsistent with the intent and purpose of 

the Master Plan and the Zoning Ordinance.

6. Specifically, the billboard would be an eyesore on 

the scenic stretch of the highway and, therefore, cannot

meet the negative criteria.

7. No positive criteria can be found to justify the use 

variance as the City planner's expert report makes clear 

that a denial of this use variance would not prove to be 

a hardship on the Applicant, a proposed tenant of the 

site.

8. The Master Plan calls for the preservation of the 

"scenic corridor" and the Applicant's proof has not 

demonstrated that the proposed use is not inconsistent 

with the intent and purpose of the Plan.

9. The Board specifically finds as set forth in the City 

planner's expert reports and testimony that the 

Applicant's proposed use is inconsistent with the intent 

and purpose of the Master Plan.
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In a November 4, 2019 well-reasoned written decision, a different trial 

judge evaluated defendant's consideration of the expert testimony and analyzed 

Jersey City's Master Plan and the variance criteria. In reviewing the comments

made by defendant's members, the court noted the members found the testimony 

of Jersey City's planner persuasive and rejected the testimony of plaintiff's 

experts. The judge stated:

Each commissioner set forth his or her conclusion to 

deny the application and pointed to the expert 

testimony that they accepted, compared it to the expert 

testimony that they rejected and stated why by 

comparison. One or more of the board members 

referenced the basis of the expert's opinions and 

challenged that basis (i.e., the Route 22 study and the 

lack of full appreciation of the entire scenic viewway). 

Supplemental Finding Number 2 in the Resolution 

states that the applicant's traffic engineer's opinion 

regarding safety, undue distraction and lack of impact 

on the scenic corridor are "rejected a[s] []not credible." 

This finding is consistent with the statements of the 

board members on December 20, 2018.

It cannot be said that the board members were arbitrary 

and capricious in their comparison and evaluation of 

the expert presentations nor can it be said that they 

blindly accepted the testimony of the City's planner as 

was prohibited in [Morris Cnty. Fair Hous. Council v. 

Boonton Twp., 228 N.J. Super. 635 (Law Div. 1988).]

In addressing the Master Plan, the judge noted that some board members 

found the proposed billboard would detract from the view, conflicting with the 
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Master Plan's intent and purpose to preserve such views. Recalling the Master 

Plan's specific prohibition against billboards along the New Jersey Turnpike 

Extension, the judge stated:

Due consideration was given by the Board to the impact 

on the view and whether the proposed use would 

conflict with the master plan. The record supports the 

Board's conclusion that the proposed use would be 

contrary to the master plan in the form of the City[] 

planner's testimony about the obstructed view of the 

Bayonne skyline, and the spire for Saint Vincent De 

Paul Roman Catholic Church, a federal and state 

landmark. In light of this record this court finds that 

this portion of the Board's determination is sound and 

not arbitrary or capricious.

The judge disagreed with plaintiff's contention that defendant did not 

make any findings regarding plaintiff's economic inutility argument. She 

reasoned:

Klein's position is that the Board did not make reasoned 

findings as to their economic inutility argument which

is the basis for Klein's positive criteria or "special 

reasons" under the statute. Stated succinctly, Klein 

argues that the parcel is rendered useless for any 

permitted use, therefore, the highest and best use is as 

a site for a billboard. Indeed, special reasons may be 

found to exist when denial of the variance application 

would visit an undue hardship on the applicant or result 

in economic inutility of the property. Saddle Brook 

Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of 

Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006). 

Supplemental Findings 5, 6 and 7 cite to absence of 
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proof of undue hardship, the goals of the master plan, 

[and] failure to meet negative criteria.

In this case, the Board argues against the economic 

inutility argument by reasoning that the hardship 

argument is not available to this applicant since it is 

dependent upon how the hardship or inutility was 

created. The Board cites the insufficiency of Klein's 

proofs to show that the hardship was not self-created. 

It is posited that without a complete record regarding 

how this irregularly shaped lot was created, Klein has a 

fatal failure of proof . . . . The Board asserts that, 

without evidence that the inutility was not created by 

the landowner, the hardship argument fails. It is on that 

basis that the positive criteria was evaluated against 

Klein.

It is well-settled that a "self-created hardship" nullifies 

any variance application based on a hardship under 

N.J.S.A. 40:55D-70(c). Egeland v. Zoning Bd. of 

Adjustment of the Twp. of Colts Neck, 405 N.J. Super. 

329 ([App. Div. 2009]) . . . . Moreover, when an 

applicant presents to a local zoning board of adjustment 

with a hardship application, the fact that the applicant 

may not know or cannot establish the title history or 

trace the origin of the non-conforming aspect of the 

property (1) is not, in and of itself a hardship and (2) 

can be fatal to the application. . . .

. . . .

In the instant case, Klein, through no fault of its own, 

cannot establish the manner in which an arguably utile 

piece of land was transformed into the triangular, small 

lot that exists today. Reasonable inferences allow a fact 

finder to conclude that the property was likely 

subdivided by prior owners. As such, . . . the Klein 

application was properly found ineligible for hardship 
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treatment due to an inadequate record. This court 

cannot find that determination to have been arbitrary or 

capricious.

In conclusion the trial court stated:

This court concludes that the Board duly considered the 

competing opinions of the experts who testified and 

made specific enough findings to support their 

conclusion to accept as credible the City's expert 

testimony over that of Klein's experts. Specifically, the 

Board found that Route 22 study inapposite to the road 

configuration on the Turnpike Extension, that there 

would be, by admission, obstructions to the entire 

viewway and that billboards are specifically mentioned 

in the master plan as prohibited in this scenic corridor. 

As to the adequacy of the Board's interpretation of the 

master plan, it is clear f[ro]m the transcripts that the 

master plan itself was read and considered and that 

deference to the master plan was paramount in the 

minds of the Board members. As to the Board's 

analysis of the positive and negative criteria, the issue 

of whether there was a self-created hardship was 

explored as long and as much as was possible given the 

evidence of prior condition of the property dating back 

to 1956. Under the decisional law cited by the Board's 

counsel herein, it cannot be said that the Board was 

unfounded in its determination that the issue of a selfcreated hardship was unresolved.

As to the "Supplemental Findings of Fact" on page 

three of the Resolution memorialized on January 24, 

2019, all but Number 4 appear to be supported by the 

record. This court is unable to determine the soundness 

of the finding that "there could be other more 

appropriate uses for the property." This being the sole 

discrepancy in the Resolution, it hardly warrants a

further remand in light of this court's ruling that there 
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was insufficient evidence presented to support a 

hardship finding in the first instance.

In the present appeal, plaintiff contends the trial court: (1) misinterpreted 

the scope of the remand and applied the wrong standard of review; (2) 

misapplied the positive criteria by wholly ignoring the demonstration of special 

reasons to grant the use variance; (3) erred in its analysis of the detriment to 

Jersey City's Master Plan scenic corridor policy; and (4) erroneously accepted 

defendant's rejection of the traffic safety testimony. We are unpersuaded by 

these arguments.

Our scope of review, like the trial court, is to "defer to the local land-use 

agency's broad discretion and to reverse only if . . . its decision [was] . . . 

arbitrary, capricious, or unreasonable." Bressman v. Gash, 131 N.J. 517, 529 

(1993) (citing Charlie Brown v. Bd. of Adjustment, 202 N.J. Super. 312, 321 

(App. Div. 1985)). "Because variances should be granted sparingly and with 

great caution, courts must give greater deference to a variance denial than to a 

grant." N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 

N.J. Super. 319, 331 (App. Div. 2004) (citing Nynex Mobile Commc'ns Co. v. 

Hazlet Twp. Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609 (App. Div. 

1994)).
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Under N.J.S.A. 40:55D-10(g), municipal zoning boards must "include 

findings of fact and conclusions based thereon in each decision on any 

application for development and shall reduce the decision to writing." "The 

factual findings set forth in a resolution cannot consist of a mere recital of 

testimony or conclusory statements couched in statutory language." N.Y. 

SMSA, L.P., 370 N.J. Super. at 332-33 (citing Harrington Glen, Inc. v. Bd. of 

Adjustment of Leonia, 52 N.J. 22, 28 (1968)). "Rather, the resolution must 

contain sufficient findings, based on the proofs submitted, to satisfy a reviewing 

court that the board has analyzed the applicant's variance request in accordance 

with the statute and in light of the municipality's master plan and zoning 

ordinances." Id. at 333 (citing Medici v. BPR Co., 107 N.J. 1, 23 (1987)).

"While remarks made by individual Board members during the course of 

hearings may be useful in interpreting ambiguous language in a resolution, they 

are not a substitute for the formality mandated by N.J.S.A. 40:55D-10(g)." Ibid.

Initially, plaintiff alleges the trial court made two errors that require

reversal of its decision. First, plaintiff contends the judge misinterpreted the 

scope of its review because she stated she was not going to decide the case 

"because the Appellate Division has said that the only remedy is a remand."

Second, in her order affirming defendant's decision, plaintiff contends the trial 
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judge improperly bolstered the Board's deficient resolution by quoting 

statements of individual board members during deliberations that were never 

incorporated into the resolution. 

Whether the trial judge misspoke regarding her role in reviewing 

defendant's third resolution is of no import. The judge was well aware her 

review required a determination of the sufficiency of defendant's factual 

findings and whether the resolution was arbitrary, capricious or unreasonable. 

And that is the review she conducted. If there was any misapprehension, it was 

of no moment when the judge found defendant made sufficient findings and its

decision was not arbitrary, capricious, or unreasonable. 

We are also unconvinced by plaintiff's argument that the trial court 

improperly "bolstered" defendant's "insufficient" resolution by relying upon 

defendant's members' individual statements. Although the court referred to the 

members' individual comments and reasons, a reading of the court's conclusion 

reveals its decision rested on defendant's specific supplemental findings of fact

incorporated into the resolution, and not on the board members' comments.

Moreover, the resolution was not merely "conclusory" as asserted by 

defendant. It was more substantial and detailed than the July 2016 resolution.

As stated, the resolution critiqued the testimony of three of plaintiff's experts; 
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provided reasons why Jersey City's planner was more persuasive than plaintiff's 

experts; asserted the proposed billboard could not meet the negative criteria 

because it would be an "eyesore on the scenic" New Jersey Turnpike; concluded 

that denying the use variance would not be a hardship to plaintiff, a proposed 

tenant; stated plaintiff failed to establish the proposed billboard was not 

inconsistent with the intent and purpose of Jersey City's Master Plan; and held, 

for the reasons stated in Jersey City's planner's expert reports, the proposed 

billboard would be inconsistent with the intent and purpose of Jersey City's 

Master Plan. We are satisfied the resolution adequately "analyzed [plaintiff's]

. . . variance request in accordance with the statute and in light of the 

municipality's master plan and zoning ordinances." N.Y. SMSA, L.P., 370 N.J. 

Super. at 333 (citing Medici, 107 N.J. at 23).

Turning to defendant's remaining arguments, we find them without merit. 

In the supplemental findings of fact in the third resolution, defendant addressed 

and rejected plaintiff's professional planner's opinion that the use variance met 

the positive and negative criteria. The resolution stated that granting the 

application and permitting the construction of a proposed billboard would 

damage the scenic corridor protected in the Master Plan and would be a 

"substantial detriment to the public good."
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Plaintiff also reiterates its argument that it offered sufficient proofs of 

hardship and economic inutility. However, as found by the trial court, the record 

is devoid of evidence concerning the creation of the property as it exists today.

Therefore, the property is not eligible for hardship status.

To the extent we have not already discussed them specifically, defendant's 

remaining arguments lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E).

Affirmed.