SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3760-15T1

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-1202-

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 cause for 

respondent (Eckert Seamans Cherin & Mellott, 

LLC, attorneys; Mr. Roskos, of counsel and on 

the brief; Michael R. Butler, 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NOT FOR PUBLICATION WITHOUT THE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." 

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.

November 17, 2017
2 A-3760-15T1

PER CURIAM

In an effort to take advantage of new LED technology, 

plaintiff Lamar Advertising 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. The 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 negatively impacted

traffic and the surrounding area.

Plaintiff filed a complaint in lieu of prerogative writ with 

the Law Division contending that its billboard conversion did not 

require an additional d(1) variance, and alternatively, 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 thorough, twenty-six page written statement of reasons

issued with her order. We add only these brief comments.
3 A-3760-15T1

The Board argues Judge Cassidy overstepped her bounds in 

allowing plaintiff to change a static billboard to a multimessaging digital communication system despite recognizing that 

it was prohibited by Township ordinance, and without finding

special reasons for 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 

determinations - the LED billboard's impact to residences, the 

neighboring cemetery and cars on the nearby congested and dangerous 

stretch of highway – in denying 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 related to this 

matter, the parties' submissions to the court, 

and oral argument. It finds the record 

establishes [plaintiff] offered a number of 
4 A-3760-15T1

expert witnesses and proofs to illustrate the 

application met the requirements for d(1) 

variance relief. This court finds the record 

contains insufficient proofs to support the 

Board's findings. There was no corroboration 

in the record for the Board's assertions that 

the illumination impact of the surrounding 

area would be greater, that there was a 

potentially large negative impact on the 

residential areas or the cemetery land, that 

there would be an increase in traffic and that 

it would [be] more dangerous for drivers. 

Moreover, [plaintiff] provided considerable 

evidence demonstrating how the application met 

the positive and negative criteria under 

[Medici v. BPR Co., 107 N.J. 1, 4 (1987)]. 

While this court must apply a deferential 

standard of review, it finds the weight of the 

evidence overwhelmingly supports a grant of 

the use variance and the decision of the Board 

was arbitrary, capricious, and unreasonable.

Lastly, we are cognizant that our Supreme Court recently 

addressed the constitutionality of LED billboards in E & J 

Equities, Ltd. Liab. Co. v. Bd. of Adjustment of the Twp. 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.