Preview
MID-L-000512-23 05/05/2023 1:56:45 PM Pglof39 Trans ID: LCV20231466678
WEINER & WEINER, P.C.
Jay A. Weiner, Esq. (ID: 032781993)
385 Cranbury Road, Suite 7
East Brunswick, N.J. 08816
(732) 565-9400
Attorney for Defendant
East Brunswick Township Board of Adjustment
SUPERIOR COURT OF NEW JERSEY
LAMAR ADVERTISING OF PENN LLC, : MIDDLESEX COUNTY
LAW DIVISION
Plaintiff,
DOCKET NO.: MID-L-512-23
vs.
CIVIL ACTION
EAST BRUNSWICK TOWNSHIP
BOARD OF ADJUSTMENT,
STATEMENT OF FACTUAL AND
Defendant LEGAL CONTENTIONS
Defendant East Brunswick Township Board of Adjustment hereby sets forth the following
Statement of Factual and Legal Contentions.
STATEMENT OF FACTS AND LEGAL CONTENTIONS
1. Lamar Advertising of Penn LLC (hereinafter referred to as the "Applicant")
applied to the East Brunswick Township Board of Adjustment for a d(1) Use
Variance to permit the erecting and operation of a two-sided, V-shaped digital
billboard upon a portion of railroad property owned by Conrail identified as
Conrail, N.J.S.H. Route 18 & Main Street, East Brunswick, New Jersey with a
maximum height of eighty (80) feet at the subject site, together with a d(6) Height
Variance for Maximum Sign Height (228-255.3.B.) and Bulk Variances ‘for
Maximum Sign Area (for two signs) (228-255.3.B.); Minimum Rear Yard Set
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 2of39 Trans ID: LCV20231466678
Back (228-217.46C.), and Tract Size (228-217.44B.); and Preliminary and Final
Site Plan Approval; at Block 150.01, Lot 1.03, N.J.S.H. Route 18 & Main Street,
in the SCMXD Zone on the East Brunswick Township Tax Map (hereinafter
referred to as the "Application").
The Board of Adjustment acknowledged jurisdiction over this application on April
7, 2022 and public hearings were held on said Application by the Board of
Adjustment on April 7, 2022; July 21, 2022; September 1, 2022; and, November
3, 2022; and the public was given the opportunity to be heard.
The Applicant published a proper newspaper hearing notice of the hearing and
notified the property owners within 200 feet of the subject Property of the Board
of Adjustment’s scheduled hearing pursuant to N.J.S.A. 40:55D-12,
On November 3, 2022, the Board DENIED the requested Use Variance, d(6)
Height Variance, Bulk Variances, and Preliminary and Final Site Plan.
The Board, after carefully considering the evidence presented to it by the
Applicant, the Applicant’s witness testimony, the documents filed by the
Applicant, and the reports, memoranda, comments, and testimony of the
appropriate township officials, consulting professionals, and agencies, made the
following findings of fact:
(A)The Property is located at Route 18 and Main Street (on the Conrail
Property), on Lot 1.03 in Block 150.01 on the Tax Map of the
Township of East Brunswick. The Property is a 5.281 acres railroad
right-of-way running east-west within the Township with a width of
approximately 90-100 feet throughout and is located in the SCMXD
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 3of39 Trans ID: LCV20231466678
(Senior Citizen Mixed Use Planned Development) Zone District. The
Property presently consisted of Conrail railroad tracks that parallel
Main Street. The subject Application sought relief to allow the
erecting and operation of a two-sided, V-shaped digital billboard along
Route 18 proposed to be eighty feet (80’) from the foundation to the top
of the sign and twenty-five feet (25) high above Route 18’s road
surface. Billboards are only permitted as conditional uses in two zoning
districts within the Township: the P-I (Planned Industrial Park), and C-
2 (Neighborhood Business District). They are not a permitted use in
other zones. The location of the proposed two-sided, V-shaped digital
billboard fell within the SCMXD Senior Citizen Mixed Use Planned
Development Zone which does not list billboards as a permitted use and,
therefore, a d(1) Use Variance was necessary. Pursuant to East
Brunswick Ordinance §228-245.A, “Unless otherwise provided for,
all signs shall relate to the premises on which they are erected.”
Additionally, East Brunswick Ordinance §228-253 PROHIBITED
SIGNS, subsection H also indicates: “Except where specfically
permitted, signs advertising a product or service not sold on the
premises, signs advertising or directing attention to another premises
and any other signs unrelated to the premises on which the sign is
erected, except for billboards as a conditional use in the in the P-I
and C-2 zones.” Furthermore, East Brunswick Ordinance §228-3
provides, “SIGNS, DOUBLE FACED — One (1) sign painted on both
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 4of39 Trans ID: LCV20231466678
sides or two signs of identical size shape attached to each other back
to back. Whenever there is an angle between the two sign faces, it
shall be considered as two separate signs.”
(B)The Applicant was represented by Reginald Jenkins, Jr., Esq. of the Firm
of Trenk Isabel Siddiqi & Shahdanian, P.C.
(C)The following individuals testified and presented testimony in support
of the Application; to wit: Derick Blatt, Operations Manager for Lamar
Advertising of New York and New Jersey; and Jlidio Vincente,
Director of Business Development for Media Resources, as lay
witnesses, William R. Vogt, P.E., Engineer, of L2A Land Design;
Kevin Savage, P.E., Traffic Engineer, of Dynamic Traffic; Chen
Qian, Lighting Sciences, Chief Product Architect and Head of
Engineering for Media Resources; Justin Taylor, P.E., Traffic
Engineer, of Dynamic Traffic; George Wheattle Williams, P.P., AICP,
of the Nishuane Group, all of whom were accepted as experts in their
respective fields.
(D)The Applicant submitted, and the Board relied upon: (a) One (1) copy
of a Survey of Property, prepared by Lakeland Surveying, signed and
sealed by Marc J. Cifone, PLS, dated 1/15/20, three sheets; (b) One (D
set of Site Plans consisting of five (5) sheets entitled "Proposed Digital
Billboard, NISH Route 18 & Main Street (Conrail Property), Township
of East Brunswick, Middlesex County, New Jersey, Block 150.01, Lot
1.03, Tax Map: 27 & 27.04, Zone SCMXD (Senior Citizen Mixed Use
MID-L-000512-23 05/05/2023 1:56:45 PM Pg5 of 39 Trans ID: LCV20231466678
Planned Development", prepared by L2A Land Design, LLC, signed
and sealed by William R. Vogt, Jr., P.E., dated 5/14/21 with most recent
revisions dated 1/19/22; (c) One (1) copy of a Traffic Engineering and
Safety assessment, prepared by Dynamic Traffic, signed and sealed by
Joseph J. Staigar, P-E., and Justin Taylor, PE dated 10/22/21 with most
recent revisions dated 5/21/22; (d) One (1) copy of a Sight Visibility
Study Plans, prepared by Dynamic Traffic, signed and sealed by Joseph
J. Staigar, P.E., and Justin Taylor, PE dated 10/22/21 with most recent
revisions dated 4/20/22, two sheets; (e) One (1) copy ofa Supplemental
Traffic Analysis, prepared by Dynamic Traffic, signed and sealed by
Joseph J. Staigar, P.E., and Justin Taylor, PE dated 7/8/22; (f) One (1)
copy of an NJDOT Notice of Approval, Application #76842, dated
9/19/19; (g) One (1) copy of a Lighting Analysis and Optical
Measurements and Calculations, prepared by media resources, signed by
Cheng Qian, undated; and (h) Zoning Board application with
Addendum, dated 5/25/21; and (i) the following Exhibits: A-1 — State
DOT Approval Letter (March 31, 2022); A-2 — Video Taken From
Drone From E. Rutherford Taken By Mr. Blatt; A-3 — Video Taken
From Drone In Bluffdale, Utah in 2019; A-4 — Colorized Site Plan,
Sheet C-03 in Color; A-5 ~ Media Resources Report (revised
3/1/22); A-6 — Figure 6 on Page 5 of Revised Media Resources
Document; A-7 - LED Module of Proposed SITELINE Digital Sign;
A-8 — Slide With South-Facing Sign Images; A-9 — Slide With
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 6 of 39 Trans ID: LCV20231466678
Single South-Facing Sign Image; A-10 — Slide With North-Facing
Sign Images; A-11 — Slide With Single North-Facing Sign Image;
A-J2— Light Cone With Light Pinpointing Residences South Facing
Slide; A-13 — South-Facing Multiple Pinpoint Slide; A-14 — North-
Facing Multiple Pinpoint Slide; A-15 — Pinpoint of Residences and
Buildings North-Facing Slide; A-16 — Media Resources 6 Page
Hand-Out of Cheng Qian, Chief Product Architect; A-17 - Review
of Lighting Considerations for Digital Billboard, 10 slides; A-18 -
NJ Rt. 18 Milepost 38.83 Billboard Location Exhibit; A-19 — NJ Rt.
4 Milepost 8.84 Billboard Location Exhibit; and A-20 — Storybook
Exhibit of 13 Images.
(E) The Board further relied upon the reports, memoranda, and comments,
of the appropriate township officials, consulting professionals, and
agencies as follows: (1) Reports of Terence M. Vogt, PE, PP, CME,
Principal, Regional Manager, Remington & Vernick Engineers, dated
February 26, 2022, April 4, 2022, and July 14, 2022; (2) East Brunswick
Police Department Inter-Office Memoranda of October 29, 2021,
February 22, 2022, July 15, 2022, and October 11, 2022; (3) Report of
Township of East Brunswick Department of Public Works — Water &
Sewer Utility Division dated February 14, 2022; (4) February 28, 2022
Memorandum of Jill Veit, Code Enforcement Officer, Township of East
Brunswick; (5) September 20, 2021 Memorandum of Joe Setticase,
Code Enforcement Officer, Township of East Brunswick; (6) October
MID-L-000512-23 05/05/2023 1:56:45 PM Pg7of39 Trans ID: LCV20231466678
28, 2021 and August 19, 2021 Memoranda of Richard A. Vigliotti,
Construction Official, Township of East Brunswick; and (7) February
15, 2022 Memorandum of John Talbot, Fire Marshall, Fire Districts #1
& #3.
(F) The following Use and Height Variances pursuant to N.J.S.A. 40:55D-
70(d)(1) and (6), respectively, from the requirements of the SCMXD
Zone District were required. The Property is located in the SCMXD
Zone District. Township ordinances do not permit the use of a two-
sided, V-shaped digital billboard in the SCMXD Zone. Township
ordinances do not permit any signs with greater than a maximum height
of eight (8) feet in the SCMXD Zone.
(G)The Applicant sought to permit the erecting and operation of a two-
sided, V-shaped digital billboard upon a portion of railroad property
owned by Conrail identified as Conrail, N.J.S.H. Route 18 & Main
Street, East Brunswick, New Jersey with a maximum height of eighty
(80) feet at the subject site, together with a d(6) Height Variance for
Maximum Sign Height (228-255.3.B.) and Bulk Variances for
Maximum Sign Area (for two signs) (228-255.3.B.); Minimum Rear
Yard Set Back (228-217.46C.), and Tract Size (228-217.44B.); and
Preliminary and Final Site Plan Approval; at Block 150.01, Lot 1.03,
N.J.S.H. Route 18 & Main Street, in the SCMXD Zone on the East
Brunswick Township Tax Map.
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 8 of 39 Trans ID: LCV20231466678
(H)Derick Blatt, Operations Manager for Lamar Advertising of New
York and New Jersey, provided lay testimony on behalf of the
Applicant as to operations. Mr. Blatt testified, inter alia, that the
Applicant was proposing an eighty (80) feet tall structure with back-
to-back, V-shaped billboards that are each fourteen (14) feet tall,
forty-eight (48) feet wide, and that it’s directed towards the motoring
public. The billboards would be digital LED (light-emitting diodes).
The signs would display multiple messages and have eight second
flips. The signs would be available for commercial, private, and
political speech and also would include an Emergency Alert System
(EAS) slot. However, Mr. Blatt could not provide specific time
frequencies as to how often EAS alerts occur, and further indicated
that some advertisements he was classifying as public service notices
were actually sold ads to agencies such as the FBI and U.S. Marshal’s
Service, and that if the space wasn’t sold then they would not be so
used and those such public service notices may never be seen.
Additionally, when the sign would be used for an EAS message, the
EAS message would only be placed into an eight second slot within
the advertisement rotation; it would not remain displayed
continuously, hence, greatly reducing the opportunity for it to be seen
by motorists driving through the area. Mr. Blatt presented two videos
(Exhibits A-2 and A-3 respectively) demonstrating drone video of
digital billboards in East Rutherford, NJ (A-2) and Bluffdale, Utah
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 9 of 39 Trans ID: LCV20231466678
(A-3), respectively. However, he testified that only the technology
exemplified in the Bluffdale, Utah video was the same as what the
Applicant proposed in this Application. Furthermore, he testified that
the height of the billboard in Exhibit A-3 was only approximately
forty (40) feet in height. He further testified that the material
advertising alcohol, sports books, and gambling are all allowed by the
Applicant.
(@ William R. Vogt, Jr., P.E., provided professional engineering
testimony in regard to the civil site plans prepared for the Application,
on behalf of the Applicant. He testified, izter alia, that the site is
located in the SCMXD Zone, that the proposed billboard faces at a 90
degree angle to Route 18, it’s a V-shaped, two-sided, digital
billboard; each panel is 14 by 48 feet and in a V-shape so that each
panel of the V is at the optimum angle to Route 18 where it’s intended
to be viewed. He further provided that the billboard will be, at its
closest point, 25 feet above Route 18; and it is to be situated 14.47
feet from the northern property line. He further testified that the
billboard will be a maximum height of 80 feet and that the sign will
appear to be approximately a 43 to 45 foot sign off the elevation of
Route 18. He further testified that the maximum sign height
permitted in the zone is 8 feet and the Applicant proposes 80 feet.
Likewise, he further testified that the maximum sign area permitted
in the zone is 25 square feet and the Applicant proposed two signs
MID-L-000512-23 05/05/2023 1:56:45 PM Pg10of39 Trans ID: LCV20231466678
each at 672 square feet. He further testified, incorrectly, that in the C-
2 Zone billboards are permitted, whereas they are only permitted as a
conditional use in the C-2 Zone, and he further did acknowledge that
the C-2 Zone is along the New Jersey Turnpike. Additionally, he
testified that the minimum rear and side yard setback requirement is
50 feet and that Applicant is only providing 14.77 feet. He further
testified that a portion of the nearby elementary school is in a location
where you can see the proposed sign and read the messages thereon.
He also provided that the intention is to make sure the sign is visible
at 1,250 feet distance.
(J) idio Vincente, Director of Business Development for Media
Resources, provided lay testimony of behalf of the Applicant, inter
alia, as to the operations of the proposed digital billboard of the
Application. Mr. Vincente testified that Media Resources is the
manufacturer of the proposed digital billboard and the SITELINE
technology is the patented product of Media Resources. He presented
(Exhibit A-7) an LED module that was one of the many to be used to
comprise the proposed digital billboard and that the proposed digital
billboard would utilize about 400 modules; the single LED module
consists of a 400 by 400 pixel radius; and it is designed to target the
traffic or area where you want to present the light to. Further, he
testified that the V-Shaped billboard is double sided with each side
having a respective right-hand block or left-hand block. He also
MID-L-000512-23 05/05/2023 1:56:45 PM Pg11lof39 Trans ID: LCV20231466678
testified that the visibility area for each sign face is 70 to 80 degrees,
respectively. Additionally, he testified that the distance where it is
intended for the sign to begin to be visible is at 1,290 feet; any visual
mitigation based on the right-hand or left-hand block would only
serve as light mitigation and not mitigating the view of the actual
structure. In reference to houses in the Historic District at around
1,000 feet distance, he testified that you will be able to see the
billboard, but you just won’t be able to read or identify the image;
further, when questioned about whether at that distance one could see
brightness or light, he responded only that the light would have no
impact without further definition of “impact.” Furthermore, although
Mr. Vincente provided lengthy testimony as to the light mitigation
effects of the SITELINE proprietary technology, his testimony failed
to address any light mitigation to the target of Route 18; rather, any
light mitigation effects, according to his testimony, were directed to
non-targeted areas only and not the intended target area of Route 18,
and his testimony did not eliminate, nor even attenuate, the safety
risks found by the East Brunswick Police Department that the
proposed two-sided V-shaped billboard would have to the Route 18
motoring public. Rather, he testified that the purpose of the
technology of the SITELINE is being able to protect those outlying,
non-targeted areas.
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 12 of 39 Trans ID: LCV20231466678
(K)Kevin Savage, P.E., of Dynamic Traffic, provided professional traffic
engineering testimony on behalf of the Applicant. Mr. Savage,
testified, inter alia, that his office prepared a traffic engineering and
safety assessment last revised April 21, 2022, and that the proposed
billboard is a double-faced billboard that is 14 feet by 48 feet on each
face with an 80 feet height; that the report reviewed the Route 18
roadway that has approximately 51,500 vehicles travel on it per day.
Further, he testified that drivers’ eyes are constantly moving and
scanning surroundings and often stop on something of interest called a
fixation. He indicated that the report relied on the 2006 study of the
National Highway Traffic Safety Administration entitled, “The Impact
of Driver Inattention on Near Crash and Crash Risks,” and a 2012 report
of the Federal Highway Administration entitled "Driver Visual Behavior
in the Presence of Commercial Electronic Message Signs.” These
reports were based on national data and not based on Route 18 traffic in
and about the area where the proposed digital billboard is targeted. He
provided testimony that the humanistic interaction of drivers on the
roadway looking at both static and digital billboards devoted between
approximately 73 and 85 percent of their vision to the active task of
driving; and, thus, based on that testimony, the inverse result is that
approximately 15 to 27 percent of their vision was fixated on the
billboard. He further testified that the average fixation for a digital
billboard were about 0.379 seconds. Mr. Savage also testified that there
MID-L-000512-23 05/05/2023 1:56:45 PM Pg13o0f39 Trans ID: LCV20231466678
is a cone-of-vision. As set forth by the Federal Highway Administration
as part of its Manual on Uniform Traffic Control Devices, covering a
forty degree range with 20 degrees being to either side of center view of
a driver, which is an area in which a driver has a generally clear view of
the objects in and around the roadway, is specifically used for the
placement of traffic control devices such as traffic signals, that the
visibility of the billboard for both northbound and southbound directions
of traffic on Route 18 is within the cone-of-vision for drivers, and it
becomes generally visible to drivers at approximately 1,250 feet, visible
to southbound drivers within the 20 degree in either direction of center
gaze at a distance of 1,045 feet, making the visibility of the sign for
southbound traffic to be for approximately 15.8 seconds at a speed of 45
miles per hours; and, visible to northbound drivers within the 20 degree
in either direction of center gaze at a distance of 910 feet, making the
visibility of the sign for northbound traffic to be for approximately 13.8
seconds at a speed of 45 miles per hours. In response to the East
Brunswick Police Department Inter-Office Memoranda of October 29,
2021 prepared by Sgt. Anthony DeSantis, Mr. Savage did not directly
provide testimony that would eliminate or attenuate the safety risks
found therein that the proposed billboard poses at the actual target site
and the actual Route 18 traffic thereon; rather, he confirmed that, based
on additional traffic counts in June of 2022, the 45 mile per hour speed
limit was not the speed of most vehicles; but rather the 85" percentile of
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 14 of 39 Trans ID: LCV20231466678
vehicular traffic was traveling northbound at 55 miles per hour and was
traveling southbound at 64 miles per hour with still fifteen percent
(15%) of vehicular traffic further exceeding those respective g5m
percentile speeds which made the driver time-of-read 11.3 seconds for
northbound drivers and 11.0 seconds for southbound drivers. He further
acknowledged that these data did not account for the variance in speed
of vehicles of continuing through the area with a steady green light
contrasted with vehicles at a red light starting from zero speed when the
light changes to green, and rather this was merely an average or mean.
With regard to having median data as opposed to mean or averaged data
as to fixation time, speeds, and percentiles where only mean data were
presented, he testified that he did not have median data notwithstanding
the possible divergence between means and medians. Furthermore, he
acknowledged that he did not have further information related to the
mean data taken nationally as to types of roadways, i.e. arterial roadways
such as Route 18; or wide open roadways without interchanges, exits,
traffic lights, and/or consisting of larger lane amounts. He further
acknowledged that based on the intervals of the billboard’s
advertisement rotation at eight seconds, it is possible for a driver to have
separate fixations on three individual advertisements during the
maximum viewing time increasing the aggregate viewing time as to
advertisements versus a static billboard without rotating advertisements.
Additionally, he testified that he did not believe anyone from his
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 15 of39 Trans ID: LCV20231466678
company, or otherwise on behalf of the Applicant, reached out to the
East Brunswick Police Department to discuss the Police Department’s
findings despite the Police Department’s July 15, 2022 Memorandum
providing that upon review of the revised plans there was no change to
the prior Police Department findings nor was there any concurrence with
the Applicant’s revisions. Further, Mr. Savage’s testimony did not
address the impact of many driver decision points in and/or about the
targeted area, nor did his testimony address any review of traffic
accidents in the targeted area as to their causes and effects.
(L)Chen Qian, Chief Product Architect and Head of Engineering for
Media Resources, provided professional lighting sciences testimony on
behalf of the Applicant. He testified, inter alia, that he is the inventor of
the SITLELINE light blocking module that is to be used in the proposed
digital billboard. He further provided testimony as to lighting units of
measurement, luminance or glare; light illumination analysis; the
SITELINE blocking louver technology and its practical operation’
“nits” being a measurement of surface brightness density; that the level
of illuminance during nighttime will be set at 255 nits and will not ever
be greater than 300 nits which is hard lock by the manufacturer; and the
illuminance during daytime could be a maximum of 5,000 nits.
However, in correspondence to the Application, he testified only as to
the impact the billboard, from an illuminance standpoint, would have on
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 16 of39 Trans ID: LCV20231466678
the non-targeted surrounding areas, and not as to its impact to the
targeted area of Route 18 and the motoring public traveling thereon.
() | Justin Taylor, P.E., of Dynamic Traffic, provided professional traffic
engineering testimony on behalf of the Applicant. He testified, inter
alia, that subsequent to the testimony of Mr. Savage, he further reviewed
some of the national data previously presented to the Board on behalf of
the Applicant, and that of the 59 locations that were included in the prior
presented studies, only 14 were similar to the targeted area of the
Applicant’s proposal. Specifically, he referred to two New Jersey sites:
one on Route 4 in Englewood, and one in South River, New Jersey
which he initially incorrectly stated was within East Brunswick. He then
conceded that the billboard is physically situated on Old Bridge
Turnpike in South River, but is viewable from Route 18 in East
Brunswick. He further testified as to crash data for that South River
billboard viewing area of Route 18 only in terms crash rate per million
vehicle miles; not as to causes and effects. Further, he testified that he
did not conduct any type of study as to vehicular speeds traveling on
Route 18 in the South River billboard viewing area. Likewise, regarding
the Route 4 example he referenced, he testified as to crash data for that
Englewood billboard viewing area only in terms crash rate per million
vehicle miles; not as to causes and effects. He further attempted to
respond to the concerns of the East Brunswick Police Departments
Memoranda, including the latest Memorandum of October 11, 2022,
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 17 of39 Trans ID: LCV20231466678
with the same nationally derived data as Mr. Savage previously did
notwithstanding the same deficiencies, i.e. that the reports were based
on national data and not based on Route 18 traffic in and about the area
where the proposed digital billboard is targeted. He also did not provide
testimony as to with an eight second advertisement rotation, the
aggregate increased time of fixation of such a driver resulting from such
driver being able to see up to three (3) separate advertisements during
the average viewing time window. Mr. Taylor further conceded in his
testimony that data utilized in 2020 related to the Englewood billboard
example could have been affected by lower numbers of vehicles on the
road during the pandemic. Further, Mr. Taylor acknowledged that as to
his example of the South River billboard, the comparison is not fully
that location to the proposed location of the target area in the Applicant’s
proposal. He further testified that he conducted no evaluation of any
other digital billboards in East Brunswick for comparison purposes or
otherwise, and additionally, that he was not aware of any other digital
billboards in East Brunswick.
(N)George Wheattle Williams, P.P., AICP, of the Nishuane Group,
provided professional planning testimony on behalf of the Applicant. He
testified, inter alia, that the subject Property is commonly known as the
Conrail property located along Main Street and oriented towards Route
18, identified as Block 150.01, Lot 1.03, and that it is located in the
Senior Citizen Mixed Use Plan Development district, ie. the SCMXD
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 18 of 39 Trans ID: LCV20231466678
Zone; the proposed billboard will have a height of 80 feet and two faces
with each face having an area of 672 square feet; for an aggregate total
of 1,344 square feet; the purpose of the billboard is to provide
information to the passing vehicular traffic along Route 18, and that the
billboard could allow communities to avail themselves of Public Service
Advertisements (PSAs). As to site suitability, he indicated that the
proposed use, is on a railroad right-of-way with no conflicts with other
buildings or land uses, and that it’s close to the intended highway target
area. He did not provide any supporting testimony as to what was meant
by the conclusory statements of: not conflicting with other buildings or
land uses. Furthermore, he did not provide further testimony as to how
the site was particularly suitable just because of the proximity to the
intended target area of Route 18 notwithstanding that the SCMXD Zone
does not permit it, nor that such digital billboards are not permitted
elsewhere along Route 18 in East Brunswick. Other substantive
testimony as to the Positive Criteria that he testified to was the proposed
billboard advanced subsection A of N.J.S. 40:55D-2 which, he
acknowledged as a “catch all” providing it would advance the purpose
of zoning in the context of PSA and community announcements it could
provide; and that subsection G would be advanced to provide sufficient
space and appropriate locations for a variety of agricultural, residential,
recreational, commercial and industrial uses and open space, both public
and private, according to meet the needsof New Jersey citizens,
MID-L-000512-23 05/05/2023 1:56:45PM Pg 19 of 39 Trans ID: LCV20231466678
outdoor advertising signs meet the need of road traffic in the community.
Despite making this conclusory statement that subsection G applied, he
provided no support as to how an 80 feet high, two-sided V-shaped
digital billboard meets the needs of road traffic. Additionally, he further
testified that subsection I applied to promote a desirable visual
environment through creative development techniques and good civic
design and arrangement. However, in testifying as to subsection I, he
stated, “don’t laugh,” and other than repeating that it is a utilization of a
railroad right-of-way, provided no further support as to subsection I.
Additionally, he opined that State policy would be advanced because the
New Jersey Roadside Sign Control and Outdoor Advertising Act would
be advanced because the Application promotes economic activity in
East Brunswick. However, he provided no testimony to support or
evidence how the proposed billboard would promote economic activity
in East Brunswick. As to the Negative Criteria, he gave conclusory
testimony that there was no substantial detriment to the public good,
without providing any specific substantive testimony reconciling his
conclusion with the Memoranda of the East Brunswick Police
Department and the overwhelming findings to the contrary therein, ie.
significant traffic safety risks to the motoring public that would be
caused by the proposed two-sided, V-shaped digital billboard of 80 feet
in height, and with two separate faces each consisting of 672 square feet
in area, In presenting an Exhibit (A-20) regarding crane tests performed
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 20 of 39 Trans ID: LCV20231466678
for visibility, he conceded that the two crane tests performed were in the
summer where there are deciduous trees, hence, not providing visibility
examples for the seasons when those trees are barren. Furthermore, he
testified that he did fly a drone at the height of the second floor of the
residence at 7 Hillsdale to analyze the view of the proposed billboard,
but did not include the photographic or videographic images in his
presentation to the Board, yet testified that the billboard could not be
seen. Further, he testified that no attempt was made to contact the
homeowner, and get consent of such homeowner, to obtain a perspective
from within the home. He also testified that he walked Kossman Street,
within the Township’s Historic District, and that there was visibility of
the proposed billboard from that location based on the crane test. He
failed to reconcile this as to the Negative Criteria. He also testified in a
conclusory manner that there is no substantial impairment to the intent
and purpose of the zone plan notwithstanding the Township’s
comprehensive ordinances governing billboards as to Use and Bulk
requirements, and the limited locations where such billboards are
allowed by ordinance, and that those allowances were only as a
conditional use. Mr. Williams did not provide any testimony as to why:
(a) Purpose H of N.J.S. 40:55D-2, to encourage the location and
design of transportation routes which will promote the free flow of
traffic while discouraging locations of such facilities and routes that
will result in congestion and blight, was not substantially impaired
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 21 of 39 Trans ID: LCV20231466678
in consideration of the Memoranda of the East Brunswick Police
Department; and, (b) Purpose J of N.J.S. 40:55D-2, the conservation
of historic sites and districts, open space, energy resources and
valuable natural resources in the State and to prevent urban sprawl
and degradation of the environment through improper use of the
land, was not substantially impaired despite acknowledging that
from Kossman Street in the Historic District, the proposed billboard
would be visible.
(O)Three (3) individuals: Lawrence Goldsmith (President of the East
Brunswick Museum) regarding concems of the East Brunswick Historic
District; Sophia Malinsky; and Sid Srivastava, testified during the public
portion of the hearing.
(P) The East Brunswick Police Department Inter-Office Memoranda of
October 29, 2021 prepared by Sgt. Anthony DeSantis, found upon
review of the Application and submissions corresponding thereto:
The Department of Public Safety has reviewed the
application (Z-21-19) and plans for the billboard which will
be placed near mile marker post 34.84 on NJ Route 18.
Safety of the motoring public is paramount in the
Department of Public Safety's mission. The memo provided
various statistics and includes 5 traffic safety studies and
their correlation to crash data as it pertains to message
boards. The Department of Public Safety would like to point
out a few sentences in the memo:
I Page I- Average daily traffic volume is 49,996
vehicles per day as of 2617.
2. Page I- "NJ. Route 18 is an Urban Principal
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 22 of 39 Trans ID: LCV20231466678
Arterial with a posted speed limit of 45 mph."
3. Page 3 - The memo states, "The average fixation tine
was found to be only .379 seconds for digital signs."
With the ebbs and flows of traffic patterns it is important to
have more recent traffic data as it pertains to a
"Urban Principal Arterial" roadway which is a main
thoroughfare for a well-traveled area. A new traffic
study will help gain more recent accurate everyday
speeds which are higher than the posted speed limit
referenced as 45 mph. Lastly, the average fixation
time referenced is concerning. This average fixation
time, which is a different way of stating the driver will
take their eyes off the road, can have catastrophic
results when perception reaction time is considered
with actual everyday speed data.
While it is understood that the conclusion reads, "The New
Jersey Department of Travsportation approval and
issuance of a permit for the proposed digital outdoor
advertising sign is mandatory, and will further ensure
motorists safety.", the Department of Public Safety
has reservations about the safety of putting such a
distracting message board up in an area highly
traveled at elevated speeds.
(Q)The East Brunswick Police Department Inter-Office Memoranda of
February 22, 2022 prepared by Sgt. John Bird, found upon further
review of the Application and submissions corresponding thereto, “The
Department of Public Safety has no further comments and maintains the
same concerns as previously outlined in the memorandum issued by Sgt.
Desantis on 10/29/21.”
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 23 of 39 Trans ID: LCV20231466678
(R)The East Brunswick Police Department Inter-Office Memoranda of
October 11, 2022 prepared by Lt. Wade Gordon, found upon further
review of the Application and submissions corresponding thereto:
The supplemental traffic analysis that was provided
confirmed our suspicions that the actual speeds that vehicles
are travelling (sic) in the proposed area are well in excess of
the posted speed limit. This reaffirmed our concerns with
placing an intentional visible distraction alongside this
section of roadway.
While both directions are concerning, the southbound
appears to be more problematic with the 85" percentile speed
of 64 mph. At a speed of 64 mph, a vehicle travels 93.8 feet
per second. With the average fixation on a billboard of .379
seconds and a maximum fixation being 1.335 seconds,
vehicles would travel 35.5 feet and 125.2 feet per second
respectively. In the proposed section of roadway where the
billboard would be placed, there are several conflicts which
require a driver's attention to negotiate. There are cars
exiting and entering at Hillsdale Road, cars exiting and
entering at Main Street, and cars intending to move to the exit
lane onto County Route 527 in Old Bridge.
Adding a visual distraction, whose sole intention is to remove
the drivers (sic) attention away from the act of driving, to a
high speed section of roadway that requires drivers focus so
that they can make split second decisions, does appear to be a
risky venture. Itis our opinion that adding the billboard could
potentially have an adverse effect on the motoring publics
(sic) safety.
(S) The Board’s consulting Planner and Engineer, Terence M. Vogt, PE,
PP, CME, testified, inter alia, that the public good hinges on whether
or not the Applicant’s proposal is safe. Furthermore, he testified that
MID-L-000512-23 05/05/2023 1:56:45 PM Pg 24 o0f39 Trans ID: LCV20231466678
the Applicant’s Professional Planner was incorrect when expressing
that the Master Plan was.silent with respect to billboards. He testified
that the Master Plan was not silent as reflected in the Township’s zoning
ordinance. Referring to Ordinance subsection 228-253H Prohibited
Signs, he provided that, except where specifically permitted, signs
advertising or directing attention to other premises and other signs
unrelated to the premises on which the sign is erected are prohibited
except for billboards as a conditional use in the P-I and C-2 Zones; and
that the zoning ordinance is tied to the Master Plan and is specific
relative to the Application. Furthermore, he testified that the two prongs
of the Negative Criteria must be satisfied, i.e. that there would be no
substantial detriment to the public good, and that there will be no
substantial impairment of the intent and purposes of the zoning and the
Applicant must prove an enhanced quality of proof that there will be no
Preview
MID-L-000512-23 05/05/2023 1:56:45 PM Pglof39 Trans ID: LCV20231466678 WEINER & WEINER, P.C. Jay A. Weiner, Esq. (ID: 032781993) 385 Cranbury Road, Suite 7 East Brunswick, N.J. 08816 (732) 565-9400 Attorney for Defendant East Brunswick Township Board of Adjustment SUPERIOR COURT OF NEW JERSEY LAMAR ADVERTISING OF PENN LLC, : MIDDLESEX COUNTY LAW DIVISION Plaintiff, DOCKET NO.: MID-L-512-23 vs. CIVIL ACTION EAST BRUNSWICK TOWNSHIP BOARD OF ADJUSTMENT, STATEMENT OF FACTUAL AND Defendant LEGAL CONTENTIONS Defendant East Brunswick Township Board of Adjustment hereby sets forth the following Statement of Factual and Legal Contentions. STATEMENT OF FACTS AND LEGAL CONTENTIONS 1. Lamar Advertising of Penn LLC (hereinafter referred to as the "Applicant") applied to the East Brunswick Township Board of Adjustment for a d(1) Use Variance to permit the erecting and operation of a two-sided, V-shaped digital billboard upon a portion of railroad property owned by Conrail identified as Conrail, N.J.S.H. Route 18 & Main Street, East Brunswick, New Jersey with a maximum height of eighty (80) feet at the subject site, together with a d(6) Height Variance for Maximum Sign Height (228-255.3.B.) and Bulk Variances ‘for Maximum Sign Area (for two signs) (228-255.3.B.); Minimum Rear Yard Set MID-L-000512-23 05/05/2023 1:56:45 PM Pg 2of39 Trans ID: LCV20231466678 Back (228-217.46C.), and Tract Size (228-217.44B.); and Preliminary and Final Site Plan Approval; at Block 150.01, Lot 1.03, N.J.S.H. Route 18 & Main Street, in the SCMXD Zone on the East Brunswick Township Tax Map (hereinafter referred to as the "Application"). The Board of Adjustment acknowledged jurisdiction over this application on April 7, 2022 and public hearings were held on said Application by the Board of Adjustment on April 7, 2022; July 21, 2022; September 1, 2022; and, November 3, 2022; and the public was given the opportunity to be heard. The Applicant published a proper newspaper hearing notice of the hearing and notified the property owners within 200 feet of the subject Property of the Board of Adjustment’s scheduled hearing pursuant to N.J.S.A. 40:55D-12, On November 3, 2022, the Board DENIED the requested Use Variance, d(6) Height Variance, Bulk Variances, and Preliminary and Final Site Plan. The Board, after carefully considering the evidence presented to it by the Applicant, the Applicant’s witness testimony, the documents filed by the Applicant, and the reports, memoranda, comments, and testimony of the appropriate township officials, consulting professionals, and agencies, made the following findings of fact: (A)The Property is located at Route 18 and Main Street (on the Conrail Property), on Lot 1.03 in Block 150.01 on the Tax Map of the Township of East Brunswick. The Property is a 5.281 acres railroad right-of-way running east-west within the Township with a width of approximately 90-100 feet throughout and is located in the SCMXD MID-L-000512-23 05/05/2023 1:56:45 PM Pg 3of39 Trans ID: LCV20231466678 (Senior Citizen Mixed Use Planned Development) Zone District. The Property presently consisted of Conrail railroad tracks that parallel Main Street. The subject Application sought relief to allow the erecting and operation of a two-sided, V-shaped digital billboard along Route 18 proposed to be eighty feet (80’) from the foundation to the top of the sign and twenty-five feet (25) high above Route 18’s road surface. Billboards are only permitted as conditional uses in two zoning districts within the Township: the P-I (Planned Industrial Park), and C- 2 (Neighborhood Business District). They are not a permitted use in other zones. The location of the proposed two-sided, V-shaped digital billboard fell within the SCMXD Senior Citizen Mixed Use Planned Development Zone which does not list billboards as a permitted use and, therefore, a d(1) Use Variance was necessary. Pursuant to East Brunswick Ordinance §228-245.A, “Unless otherwise provided for, all signs shall relate to the premises on which they are erected.” Additionally, East Brunswick Ordinance §228-253 PROHIBITED SIGNS, subsection H also indicates: “Except where specfically permitted, signs advertising a product or service not sold on the premises, signs advertising or directing attention to another premises and any other signs unrelated to the premises on which the sign is erected, except for billboards as a conditional use in the in the P-I and C-2 zones.” Furthermore, East Brunswick Ordinance §228-3 provides, “SIGNS, DOUBLE FACED — One (1) sign painted on both MID-L-000512-23 05/05/2023 1:56:45 PM Pg 4of39 Trans ID: LCV20231466678 sides or two signs of identical size shape attached to each other back to back. Whenever there is an angle between the two sign faces, it shall be considered as two separate signs.” (B)The Applicant was represented by Reginald Jenkins, Jr., Esq. of the Firm of Trenk Isabel Siddiqi & Shahdanian, P.C. (C)The following individuals testified and presented testimony in support of the Application; to wit: Derick Blatt, Operations Manager for Lamar Advertising of New York and New Jersey; and Jlidio Vincente, Director of Business Development for Media Resources, as lay witnesses, William R. Vogt, P.E., Engineer, of L2A Land Design; Kevin Savage, P.E., Traffic Engineer, of Dynamic Traffic; Chen Qian, Lighting Sciences, Chief Product Architect and Head of Engineering for Media Resources; Justin Taylor, P.E., Traffic Engineer, of Dynamic Traffic; George Wheattle Williams, P.P., AICP, of the Nishuane Group, all of whom were accepted as experts in their respective fields. (D)The Applicant submitted, and the Board relied upon: (a) One (1) copy of a Survey of Property, prepared by Lakeland Surveying, signed and sealed by Marc J. Cifone, PLS, dated 1/15/20, three sheets; (b) One (D set of Site Plans consisting of five (5) sheets entitled "Proposed Digital Billboard, NISH Route 18 & Main Street (Conrail Property), Township of East Brunswick, Middlesex County, New Jersey, Block 150.01, Lot 1.03, Tax Map: 27 & 27.04, Zone SCMXD (Senior Citizen Mixed Use MID-L-000512-23 05/05/2023 1:56:45 PM Pg5 of 39 Trans ID: LCV20231466678 Planned Development", prepared by L2A Land Design, LLC, signed and sealed by William R. Vogt, Jr., P.E., dated 5/14/21 with most recent revisions dated 1/19/22; (c) One (1) copy of a Traffic Engineering and Safety assessment, prepared by Dynamic Traffic, signed and sealed by Joseph J. Staigar, P-E., and Justin Taylor, PE dated 10/22/21 with most recent revisions dated 5/21/22; (d) One (1) copy of a Sight Visibility Study Plans, prepared by Dynamic Traffic, signed and sealed by Joseph J. Staigar, P.E., and Justin Taylor, PE dated 10/22/21 with most recent revisions dated 4/20/22, two sheets; (e) One (1) copy ofa Supplemental Traffic Analysis, prepared by Dynamic Traffic, signed and sealed by Joseph J. Staigar, P.E., and Justin Taylor, PE dated 7/8/22; (f) One (1) copy of an NJDOT Notice of Approval, Application #76842, dated 9/19/19; (g) One (1) copy of a Lighting Analysis and Optical Measurements and Calculations, prepared by media resources, signed by Cheng Qian, undated; and (h) Zoning Board application with Addendum, dated 5/25/21; and (i) the following Exhibits: A-1 — State DOT Approval Letter (March 31, 2022); A-2 — Video Taken From Drone From E. Rutherford Taken By Mr. Blatt; A-3 — Video Taken From Drone In Bluffdale, Utah in 2019; A-4 — Colorized Site Plan, Sheet C-03 in Color; A-5 ~ Media Resources Report (revised 3/1/22); A-6 — Figure 6 on Page 5 of Revised Media Resources Document; A-7 - LED Module of Proposed SITELINE Digital Sign; A-8 — Slide With South-Facing Sign Images; A-9 — Slide With MID-L-000512-23 05/05/2023 1:56:45 PM Pg 6 of 39 Trans ID: LCV20231466678 Single South-Facing Sign Image; A-10 — Slide With North-Facing Sign Images; A-11 — Slide With Single North-Facing Sign Image; A-J2— Light Cone With Light Pinpointing Residences South Facing Slide; A-13 — South-Facing Multiple Pinpoint Slide; A-14 — North- Facing Multiple Pinpoint Slide; A-15 — Pinpoint of Residences and Buildings North-Facing Slide; A-16 — Media Resources 6 Page Hand-Out of Cheng Qian, Chief Product Architect; A-17 - Review of Lighting Considerations for Digital Billboard, 10 slides; A-18 - NJ Rt. 18 Milepost 38.83 Billboard Location Exhibit; A-19 — NJ Rt. 4 Milepost 8.84 Billboard Location Exhibit; and A-20 — Storybook Exhibit of 13 Images. (E) The Board further relied upon the reports, memoranda, and comments, of the appropriate township officials, consulting professionals, and agencies as follows: (1) Reports of Terence M. Vogt, PE, PP, CME, Principal, Regional Manager, Remington & Vernick Engineers, dated February 26, 2022, April 4, 2022, and July 14, 2022; (2) East Brunswick Police Department Inter-Office Memoranda of October 29, 2021, February 22, 2022, July 15, 2022, and October 11, 2022; (3) Report of Township of East Brunswick Department of Public Works — Water & Sewer Utility Division dated February 14, 2022; (4) February 28, 2022 Memorandum of Jill Veit, Code Enforcement Officer, Township of East Brunswick; (5) September 20, 2021 Memorandum of Joe Setticase, Code Enforcement Officer, Township of East Brunswick; (6) October MID-L-000512-23 05/05/2023 1:56:45 PM Pg7of39 Trans ID: LCV20231466678 28, 2021 and August 19, 2021 Memoranda of Richard A. Vigliotti, Construction Official, Township of East Brunswick; and (7) February 15, 2022 Memorandum of John Talbot, Fire Marshall, Fire Districts #1 & #3. (F) The following Use and Height Variances pursuant to N.J.S.A. 40:55D- 70(d)(1) and (6), respectively, from the requirements of the SCMXD Zone District were required. The Property is located in the SCMXD Zone District. Township ordinances do not permit the use of a two- sided, V-shaped digital billboard in the SCMXD Zone. Township ordinances do not permit any signs with greater than a maximum height of eight (8) feet in the SCMXD Zone. (G)The Applicant sought to permit the erecting and operation of a two- sided, V-shaped digital billboard upon a portion of railroad property owned by Conrail identified as Conrail, N.J.S.H. Route 18 & Main Street, East Brunswick, New Jersey with a maximum height of eighty (80) feet at the subject site, together with a d(6) Height Variance for Maximum Sign Height (228-255.3.B.) and Bulk Variances for Maximum Sign Area (for two signs) (228-255.3.B.); Minimum Rear Yard Set Back (228-217.46C.), and Tract Size (228-217.44B.); and Preliminary and Final Site Plan Approval; at Block 150.01, Lot 1.03, N.J.S.H. Route 18 & Main Street, in the SCMXD Zone on the East Brunswick Township Tax Map. MID-L-000512-23 05/05/2023 1:56:45 PM Pg 8 of 39 Trans ID: LCV20231466678 (H)Derick Blatt, Operations Manager for Lamar Advertising of New York and New Jersey, provided lay testimony on behalf of the Applicant as to operations. Mr. Blatt testified, inter alia, that the Applicant was proposing an eighty (80) feet tall structure with back- to-back, V-shaped billboards that are each fourteen (14) feet tall, forty-eight (48) feet wide, and that it’s directed towards the motoring public. The billboards would be digital LED (light-emitting diodes). The signs would display multiple messages and have eight second flips. The signs would be available for commercial, private, and political speech and also would include an Emergency Alert System (EAS) slot. However, Mr. Blatt could not provide specific time frequencies as to how often EAS alerts occur, and further indicated that some advertisements he was classifying as public service notices were actually sold ads to agencies such as the FBI and U.S. Marshal’s Service, and that if the space wasn’t sold then they would not be so used and those such public service notices may never be seen. Additionally, when the sign would be used for an EAS message, the EAS message would only be placed into an eight second slot within the advertisement rotation; it would not remain displayed continuously, hence, greatly reducing the opportunity for it to be seen by motorists driving through the area. Mr. Blatt presented two videos (Exhibits A-2 and A-3 respectively) demonstrating drone video of digital billboards in East Rutherford, NJ (A-2) and Bluffdale, Utah MID-L-000512-23 05/05/2023 1:56:45 PM Pg 9 of 39 Trans ID: LCV20231466678 (A-3), respectively. However, he testified that only the technology exemplified in the Bluffdale, Utah video was the same as what the Applicant proposed in this Application. Furthermore, he testified that the height of the billboard in Exhibit A-3 was only approximately forty (40) feet in height. He further testified that the material advertising alcohol, sports books, and gambling are all allowed by the Applicant. (@ William R. Vogt, Jr., P.E., provided professional engineering testimony in regard to the civil site plans prepared for the Application, on behalf of the Applicant. He testified, izter alia, that the site is located in the SCMXD Zone, that the proposed billboard faces at a 90 degree angle to Route 18, it’s a V-shaped, two-sided, digital billboard; each panel is 14 by 48 feet and in a V-shape so that each panel of the V is at the optimum angle to Route 18 where it’s intended to be viewed. He further provided that the billboard will be, at its closest point, 25 feet above Route 18; and it is to be situated 14.47 feet from the northern property line. He further testified that the billboard will be a maximum height of 80 feet and that the sign will appear to be approximately a 43 to 45 foot sign off the elevation of Route 18. He further testified that the maximum sign height permitted in the zone is 8 feet and the Applicant proposes 80 feet. Likewise, he further testified that the maximum sign area permitted in the zone is 25 square feet and the Applicant proposed two signs MID-L-000512-23 05/05/2023 1:56:45 PM Pg10of39 Trans ID: LCV20231466678 each at 672 square feet. He further testified, incorrectly, that in the C- 2 Zone billboards are permitted, whereas they are only permitted as a conditional use in the C-2 Zone, and he further did acknowledge that the C-2 Zone is along the New Jersey Turnpike. Additionally, he testified that the minimum rear and side yard setback requirement is 50 feet and that Applicant is only providing 14.77 feet. He further testified that a portion of the nearby elementary school is in a location where you can see the proposed sign and read the messages thereon. He also provided that the intention is to make sure the sign is visible at 1,250 feet distance. (J) idio Vincente, Director of Business Development for Media Resources, provided lay testimony of behalf of the Applicant, inter alia, as to the operations of the proposed digital billboard of the Application. Mr. Vincente testified that Media Resources is the manufacturer of the proposed digital billboard and the SITELINE technology is the patented product of Media Resources. He presented (Exhibit A-7) an LED module that was one of the many to be used to comprise the proposed digital billboard and that the proposed digital billboard would utilize about 400 modules; the single LED module consists of a 400 by 400 pixel radius; and it is designed to target the traffic or area where you want to present the light to. Further, he testified that the V-Shaped billboard is double sided with each side having a respective right-hand block or left-hand block. He also MID-L-000512-23 05/05/2023 1:56:45 PM Pg11lof39 Trans ID: LCV20231466678 testified that the visibility area for each sign face is 70 to 80 degrees, respectively. Additionally, he testified that the distance where it is intended for the sign to begin to be visible is at 1,290 feet; any visual mitigation based on the right-hand or left-hand block would only serve as light mitigation and not mitigating the view of the actual structure. In reference to houses in the Historic District at around 1,000 feet distance, he testified that you will be able to see the billboard, but you just won’t be able to read or identify the image; further, when questioned about whether at that distance one could see brightness or light, he responded only that the light would have no impact without further definition of “impact.” Furthermore, although Mr. Vincente provided lengthy testimony as to the light mitigation effects of the SITELINE proprietary technology, his testimony failed to address any light mitigation to the target of Route 18; rather, any light mitigation effects, according to his testimony, were directed to non-targeted areas only and not the intended target area of Route 18, and his testimony did not eliminate, nor even attenuate, the safety risks found by the East Brunswick Police Department that the proposed two-sided V-shaped billboard would have to the Route 18 motoring public. Rather, he testified that the purpose of the technology of the SITELINE is being able to protect those outlying, non-targeted areas. MID-L-000512-23 05/05/2023 1:56:45 PM Pg 12 of 39 Trans ID: LCV20231466678 (K)Kevin Savage, P.E., of Dynamic Traffic, provided professional traffic engineering testimony on behalf of the Applicant. Mr. Savage, testified, inter alia, that his office prepared a traffic engineering and safety assessment last revised April 21, 2022, and that the proposed billboard is a double-faced billboard that is 14 feet by 48 feet on each face with an 80 feet height; that the report reviewed the Route 18 roadway that has approximately 51,500 vehicles travel on it per day. Further, he testified that drivers’ eyes are constantly moving and scanning surroundings and often stop on something of interest called a fixation. He indicated that the report relied on the 2006 study of the National Highway Traffic Safety Administration entitled, “The Impact of Driver Inattention on Near Crash and Crash Risks,” and a 2012 report of the Federal Highway Administration entitled "Driver Visual Behavior in the Presence of Commercial Electronic Message Signs.” These reports were based on national data and not based on Route 18 traffic in and about the area where the proposed digital billboard is targeted. He provided testimony that the humanistic interaction of drivers on the roadway looking at both static and digital billboards devoted between approximately 73 and 85 percent of their vision to the active task of driving; and, thus, based on that testimony, the inverse result is that approximately 15 to 27 percent of their vision was fixated on the billboard. He further testified that the average fixation for a digital billboard were about 0.379 seconds. Mr. Savage also testified that there MID-L-000512-23 05/05/2023 1:56:45 PM Pg13o0f39 Trans ID: LCV20231466678 is a cone-of-vision. As set forth by the Federal Highway Administration as part of its Manual on Uniform Traffic Control Devices, covering a forty degree range with 20 degrees being to either side of center view of a driver, which is an area in which a driver has a generally clear view of the objects in and around the roadway, is specifically used for the placement of traffic control devices such as traffic signals, that the visibility of the billboard for both northbound and southbound directions of traffic on Route 18 is within the cone-of-vision for drivers, and it becomes generally visible to drivers at approximately 1,250 feet, visible to southbound drivers within the 20 degree in either direction of center gaze at a distance of 1,045 feet, making the visibility of the sign for southbound traffic to be for approximately 15.8 seconds at a speed of 45 miles per hours; and, visible to northbound drivers within the 20 degree in either direction of center gaze at a distance of 910 feet, making the visibility of the sign for northbound traffic to be for approximately 13.8 seconds at a speed of 45 miles per hours. In response to the East Brunswick Police Department Inter-Office Memoranda of October 29, 2021 prepared by Sgt. Anthony DeSantis, Mr. Savage did not directly provide testimony that would eliminate or attenuate the safety risks found therein that the proposed billboard poses at the actual target site and the actual Route 18 traffic thereon; rather, he confirmed that, based on additional traffic counts in June of 2022, the 45 mile per hour speed limit was not the speed of most vehicles; but rather the 85" percentile of MID-L-000512-23 05/05/2023 1:56:45 PM Pg 14 of 39 Trans ID: LCV20231466678 vehicular traffic was traveling northbound at 55 miles per hour and was traveling southbound at 64 miles per hour with still fifteen percent (15%) of vehicular traffic further exceeding those respective g5m percentile speeds which made the driver time-of-read 11.3 seconds for northbound drivers and 11.0 seconds for southbound drivers. He further acknowledged that these data did not account for the variance in speed of vehicles of continuing through the area with a steady green light contrasted with vehicles at a red light starting from zero speed when the light changes to green, and rather this was merely an average or mean. With regard to having median data as opposed to mean or averaged data as to fixation time, speeds, and percentiles where only mean data were presented, he testified that he did not have median data notwithstanding the possible divergence between means and medians. Furthermore, he acknowledged that he did not have further information related to the mean data taken nationally as to types of roadways, i.e. arterial roadways such as Route 18; or wide open roadways without interchanges, exits, traffic lights, and/or consisting of larger lane amounts. He further acknowledged that based on the intervals of the billboard’s advertisement rotation at eight seconds, it is possible for a driver to have separate fixations on three individual advertisements during the maximum viewing time increasing the aggregate viewing time as to advertisements versus a static billboard without rotating advertisements. Additionally, he testified that he did not believe anyone from his MID-L-000512-23 05/05/2023 1:56:45 PM Pg 15 of39 Trans ID: LCV20231466678 company, or otherwise on behalf of the Applicant, reached out to the East Brunswick Police Department to discuss the Police Department’s findings despite the Police Department’s July 15, 2022 Memorandum providing that upon review of the revised plans there was no change to the prior Police Department findings nor was there any concurrence with the Applicant’s revisions. Further, Mr. Savage’s testimony did not address the impact of many driver decision points in and/or about the targeted area, nor did his testimony address any review of traffic accidents in the targeted area as to their causes and effects. (L)Chen Qian, Chief Product Architect and Head of Engineering for Media Resources, provided professional lighting sciences testimony on behalf of the Applicant. He testified, inter alia, that he is the inventor of the SITLELINE light blocking module that is to be used in the proposed digital billboard. He further provided testimony as to lighting units of measurement, luminance or glare; light illumination analysis; the SITELINE blocking louver technology and its practical operation’ “nits” being a measurement of surface brightness density; that the level of illuminance during nighttime will be set at 255 nits and will not ever be greater than 300 nits which is hard lock by the manufacturer; and the illuminance during daytime could be a maximum of 5,000 nits. However, in correspondence to the Application, he testified only as to the impact the billboard, from an illuminance standpoint, would have on MID-L-000512-23 05/05/2023 1:56:45 PM Pg 16 of39 Trans ID: LCV20231466678 the non-targeted surrounding areas, and not as to its impact to the targeted area of Route 18 and the motoring public traveling thereon. () | Justin Taylor, P.E., of Dynamic Traffic, provided professional traffic engineering testimony on behalf of the Applicant. He testified, inter alia, that subsequent to the testimony of Mr. Savage, he further reviewed some of the national data previously presented to the Board on behalf of the Applicant, and that of the 59 locations that were included in the prior presented studies, only 14 were similar to the targeted area of the Applicant’s proposal. Specifically, he referred to two New Jersey sites: one on Route 4 in Englewood, and one in South River, New Jersey which he initially incorrectly stated was within East Brunswick. He then conceded that the billboard is physically situated on Old Bridge Turnpike in South River, but is viewable from Route 18 in East Brunswick. He further testified as to crash data for that South River billboard viewing area of Route 18 only in terms crash rate per million vehicle miles; not as to causes and effects. Further, he testified that he did not conduct any type of study as to vehicular speeds traveling on Route 18 in the South River billboard viewing area. Likewise, regarding the Route 4 example he referenced, he testified as to crash data for that Englewood billboard viewing area only in terms crash rate per million vehicle miles; not as to causes and effects. He further attempted to respond to the concerns of the East Brunswick Police Departments Memoranda, including the latest Memorandum of October 11, 2022, MID-L-000512-23 05/05/2023 1:56:45 PM Pg 17 of39 Trans ID: LCV20231466678 with the same nationally derived data as Mr. Savage previously did notwithstanding the same deficiencies, i.e. that the reports were based on national data and not based on Route 18 traffic in and about the area where the proposed digital billboard is targeted. He also did not provide testimony as to with an eight second advertisement rotation, the aggregate increased time of fixation of such a driver resulting from such driver being able to see up to three (3) separate advertisements during the average viewing time window. Mr. Taylor further conceded in his testimony that data utilized in 2020 related to the Englewood billboard example could have been affected by lower numbers of vehicles on the road during the pandemic. Further, Mr. Taylor acknowledged that as to his example of the South River billboard, the comparison is not fully that location to the proposed location of the target area in the Applicant’s proposal. He further testified that he conducted no evaluation of any other digital billboards in East Brunswick for comparison purposes or otherwise, and additionally, that he was not aware of any other digital billboards in East Brunswick. (N)George Wheattle Williams, P.P., AICP, of the Nishuane Group, provided professional planning testimony on behalf of the Applicant. He testified, inter alia, that the subject Property is commonly known as the Conrail property located along Main Street and oriented towards Route 18, identified as Block 150.01, Lot 1.03, and that it is located in the Senior Citizen Mixed Use Plan Development district, ie. the SCMXD MID-L-000512-23 05/05/2023 1:56:45 PM Pg 18 of 39 Trans ID: LCV20231466678 Zone; the proposed billboard will have a height of 80 feet and two faces with each face having an area of 672 square feet; for an aggregate total of 1,344 square feet; the purpose of the billboard is to provide information to the passing vehicular traffic along Route 18, and that the billboard could allow communities to avail themselves of Public Service Advertisements (PSAs). As to site suitability, he indicated that the proposed use, is on a railroad right-of-way with no conflicts with other buildings or land uses, and that it’s close to the intended highway target area. He did not provide any supporting testimony as to what was meant by the conclusory statements of: not conflicting with other buildings or land uses. Furthermore, he did not provide further testimony as to how the site was particularly suitable just because of the proximity to the intended target area of Route 18 notwithstanding that the SCMXD Zone does not permit it, nor that such digital billboards are not permitted elsewhere along Route 18 in East Brunswick. Other substantive testimony as to the Positive Criteria that he testified to was the proposed billboard advanced subsection A of N.J.S. 40:55D-2 which, he acknowledged as a “catch all” providing it would advance the purpose of zoning in the context of PSA and community announcements it could provide; and that subsection G would be advanced to provide sufficient space and appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to meet the needsof New Jersey citizens, MID-L-000512-23 05/05/2023 1:56:45PM Pg 19 of 39 Trans ID: LCV20231466678 outdoor advertising signs meet the need of road traffic in the community. Despite making this conclusory statement that subsection G applied, he provided no support as to how an 80 feet high, two-sided V-shaped digital billboard meets the needs of road traffic. Additionally, he further testified that subsection I applied to promote a desirable visual environment through creative development techniques and good civic design and arrangement. However, in testifying as to subsection I, he stated, “don’t laugh,” and other than repeating that it is a utilization of a railroad right-of-way, provided no further support as to subsection I. Additionally, he opined that State policy would be advanced because the New Jersey Roadside Sign Control and Outdoor Advertising Act would be advanced because the Application promotes economic activity in East Brunswick. However, he provided no testimony to support or evidence how the proposed billboard would promote economic activity in East Brunswick. As to the Negative Criteria, he gave conclusory testimony that there was no substantial detriment to the public good, without providing any specific substantive testimony reconciling his conclusion with the Memoranda of the East Brunswick Police Department and the overwhelming findings to the contrary therein, ie. significant traffic safety risks to the motoring public that would be caused by the proposed two-sided, V-shaped digital billboard of 80 feet in height, and with two separate faces each consisting of 672 square feet in area, In presenting an Exhibit (A-20) regarding crane tests performed MID-L-000512-23 05/05/2023 1:56:45 PM Pg 20 of 39 Trans ID: LCV20231466678 for visibility, he conceded that the two crane tests performed were in the summer where there are deciduous trees, hence, not providing visibility examples for the seasons when those trees are barren. Furthermore, he testified that he did fly a drone at the height of the second floor of the residence at 7 Hillsdale to analyze the view of the proposed billboard, but did not include the photographic or videographic images in his presentation to the Board, yet testified that the billboard could not be seen. Further, he testified that no attempt was made to contact the homeowner, and get consent of such homeowner, to obtain a perspective from within the home. He also testified that he walked Kossman Street, within the Township’s Historic District, and that there was visibility of the proposed billboard from that location based on the crane test. He failed to reconcile this as to the Negative Criteria. He also testified in a conclusory manner that there is no substantial impairment to the intent and purpose of the zone plan notwithstanding the Township’s comprehensive ordinances governing billboards as to Use and Bulk requirements, and the limited locations where such billboards are allowed by ordinance, and that those allowances were only as a conditional use. Mr. Williams did not provide any testimony as to why: (a) Purpose H of N.J.S. 40:55D-2, to encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging locations of such facilities and routes that will result in congestion and blight, was not substantially impaired MID-L-000512-23 05/05/2023 1:56:45 PM Pg 21 of 39 Trans ID: LCV20231466678 in consideration of the Memoranda of the East Brunswick Police Department; and, (b) Purpose J of N.J.S. 40:55D-2, the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of the land, was not substantially impaired despite acknowledging that from Kossman Street in the Historic District, the proposed billboard would be visible. (O)Three (3) individuals: Lawrence Goldsmith (President of the East Brunswick Museum) regarding concems of the East Brunswick Historic District; Sophia Malinsky; and Sid Srivastava, testified during the public portion of the hearing. (P) The East Brunswick Police Department Inter-Office Memoranda of October 29, 2021 prepared by Sgt. Anthony DeSantis, found upon review of the Application and submissions corresponding thereto: The Department of Public Safety has reviewed the application (Z-21-19) and plans for the billboard which will be placed near mile marker post 34.84 on NJ Route 18. Safety of the motoring public is paramount in the Department of Public Safety's mission. The memo provided various statistics and includes 5 traffic safety studies and their correlation to crash data as it pertains to message boards. The Department of Public Safety would like to point out a few sentences in the memo: I Page I- Average daily traffic volume is 49,996 vehicles per day as of 2617. 2. Page I- "NJ. Route 18 is an Urban Principal MID-L-000512-23 05/05/2023 1:56:45 PM Pg 22 of 39 Trans ID: LCV20231466678 Arterial with a posted speed limit of 45 mph." 3. Page 3 - The memo states, "The average fixation tine was found to be only .379 seconds for digital signs." With the ebbs and flows of traffic patterns it is important to have more recent traffic data as it pertains to a "Urban Principal Arterial" roadway which is a main thoroughfare for a well-traveled area. A new traffic study will help gain more recent accurate everyday speeds which are higher than the posted speed limit referenced as 45 mph. Lastly, the average fixation time referenced is concerning. This average fixation time, which is a different way of stating the driver will take their eyes off the road, can have catastrophic results when perception reaction time is considered with actual everyday speed data. While it is understood that the conclusion reads, "The New Jersey Department of Travsportation approval and issuance of a permit for the proposed digital outdoor advertising sign is mandatory, and will further ensure motorists safety.", the Department of Public Safety has reservations about the safety of putting such a distracting message board up in an area highly traveled at elevated speeds. (Q)The East Brunswick Police Department Inter-Office Memoranda of February 22, 2022 prepared by Sgt. John Bird, found upon further review of the Application and submissions corresponding thereto, “The Department of Public Safety has no further comments and maintains the same concerns as previously outlined in the memorandum issued by Sgt. Desantis on 10/29/21.” MID-L-000512-23 05/05/2023 1:56:45 PM Pg 23 of 39 Trans ID: LCV20231466678 (R)The East Brunswick Police Department Inter-Office Memoranda of October 11, 2022 prepared by Lt. Wade Gordon, found upon further review of the Application and submissions corresponding thereto: The supplemental traffic analysis that was provided confirmed our suspicions that the actual speeds that vehicles are travelling (sic) in the proposed area are well in excess of the posted speed limit. This reaffirmed our concerns with placing an intentional visible distraction alongside this section of roadway. While both directions are concerning, the southbound appears to be more problematic with the 85" percentile speed of 64 mph. At a speed of 64 mph, a vehicle travels 93.8 feet per second. With the average fixation on a billboard of .379 seconds and a maximum fixation being 1.335 seconds, vehicles would travel 35.5 feet and 125.2 feet per second respectively. In the proposed section of roadway where the billboard would be placed, there are several conflicts which require a driver's attention to negotiate. There are cars exiting and entering at Hillsdale Road, cars exiting and entering at Main Street, and cars intending to move to the exit lane onto County Route 527 in Old Bridge. Adding a visual distraction, whose sole intention is to remove the drivers (sic) attention away from the act of driving, to a high speed section of roadway that requires drivers focus so that they can make split second decisions, does appear to be a risky venture. Itis our opinion that adding the billboard could potentially have an adverse effect on the motoring publics (sic) safety. (S) The Board’s consulting Planner and Engineer, Terence M. Vogt, PE, PP, CME, testified, inter alia, that the public good hinges on whether or not the Applicant’s proposal is safe. Furthermore, he testified that MID-L-000512-23 05/05/2023 1:56:45 PM Pg 24 o0f39 Trans ID: LCV20231466678 the Applicant’s Professional Planner was incorrect when expressing that the Master Plan was.silent with respect to billboards. He testified that the Master Plan was not silent as reflected in the Township’s zoning ordinance. Referring to Ordinance subsection 228-253H Prohibited Signs, he provided that, except where specifically permitted, signs advertising or directing attention to other premises and other signs unrelated to the premises on which the sign is erected are prohibited except for billboards as a conditional use in the P-I and C-2 Zones; and that the zoning ordinance is tied to the Master Plan and is specific relative to the Application. Furthermore, he testified that the two prongs of the Negative Criteria must be satisfied, i.e. that there would be no substantial detriment to the public good, and that there will be no substantial impairment of the intent and purposes of the zoning and the Applicant must prove an enhanced quality of proof that there will be no