SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A
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LAMAR ADVERTISING OF PENN, LLC,
Plaintiff

- Respondent,

v.
TOWNSHIP OF UNION , Defendant,
and

TOWNSHIP OF UNION ZONING BOARD OF ADJUSTMENT,
Defendant

- Appellant.

_________________________________

Argued October 3, 2017

– Decided Before Judges Fisher and Sumners. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L
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- 15.
Robert J. Pansulla argued the cause for appellant (Finazzo Cossolini O'Leary Meola & Hager, LLC, attorneys; Mr. Pansulla, of counsel and on the brief).
David M. Roskos argued the caus e for respondent (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Roskos , of counsel and on the brief ; Michael R. Bu tl e r , on the brief) .

NOT FOR PUBLICATION WITHOUT THE APP ROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

November 17, 20172 A
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PER CURIAM

In an effort to take advantage of ne w LED technology,

p laintiff Lamar A dvertising of Penn, LLC , sought to replace its
double

- sided traditional static billboard , facing Route 78 and a cemetery , with an LED multi

- message panel billboard. T he Union Township's Zoning Board of Adjustment ( Board) determined that the d(1) variance granted to plaintiff for the static billboard in 2003, did not allow for the electronic billboard , and denied a new d(1) variance for the LED billboard . In support of its decision,
the Board cited a new Union Township municipal ordinance that prohibited the conversion of existing static billboards to LED
billboards , and found that the new billboard negative ly impact ed traffic and the surrounding area .
P laintiff filed a complaint in lieu of prerogative writ with
the Law Division contending that its billboa rd conversion did not require an additional d(1) variance , and alternative ly , the
Board's denial of its variance request was arbitrary and capricious. Assignment Judge Karen M . Cassidy issued an order providing that although a d(1) variance was needed , the Board 's denial of plaintiff's d(1) variance request was arbitrary and capricious . We affirm substantially for the reasons stated by the judge in her th o rough , twenty
- six page written statement of reasons
issued with her order . We add only these brie f comments.3 A
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The Board argues J udge Cassidy overstepped her bounds in allowing plaintiff to change a static billboard to a multi

messaging digital communication system despite recognizing that
it was prohibited by Township ordinance , and without finding special reasons f or the new billboard's non - conforming use . The
Board also maintains that the judge improperly substituted her judgment to grant the variance by disregarding its factual
determin ations

- the LED billboard's impact to residences, the neighb oring cemetery and cars on the nearby congested and dangerous stretch of highway

– in den y ing the variance. We need not set forth the procedural history and the testimony
before the Board surrounding this billboard as they are detailed in Judge Cassidy's statement of reasons . We point out, however,
that the Board summarily rejected the testimony of plaintiff's three experts stating that the billboard's location was suitable
and that the timing and imaging of the new billboard would not negatively impact traffic or the surrounding area , without the presentation of any specific evidence to discredit their opinions . Hence, we agree with Judge Cassidy 's reasoning in granting the
variance : This court has reviewed the complete record

of the Board proceedings r elated to this matter , the parties' submissions to the court, and oral argument. It finds the record establishes [plaintiff] offered a number of4 A
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Lastly, w e are cognizant that our Supreme Court recently
addressed the constitutional it y of LED billboards in E & J Equities, Ltd. Liab. Co. v. Bd. of Adjustment of the T w p. of
Franklin , 226 N.J. 549 (2016). However, we do not address the constitutionality of Union Township 's ordinance because neither party raised the issue before us . Affirmed.