KLEIN OUTDOOR ADVERTISING, INC. VS. CITY OF JERSEY CITY ZONING BOARD OF ADJUSTMENT (L-0662-19, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1425-19T1

KLEIN OUTDOOR
ADVERTISING, INC.,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY ZONING
BOARD OF ADJUSTMENT,

Defendant-Respondent.

Argued October 19, 2020 – Decided December 8, 2020

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
 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 self-
created 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.

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