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MID-L-000512-23 05/05/2023 2:17:55 PM Pg 1 of 7 Trans ID: LCV20231466929
TRENK ISABEL SIDDIQI & SHAHDANIAN P.C.
Reginald Jenkins, Jr.
Attorney I.D. No. 049611998
290 W. Mount Pleasant Avenue, Suite 2350
Livingston, New Jersey 07039
(973) 533-1000
Attorneys for Plaintiff,
Lamar Advertising of Penn LLC
_____________________________________
SUPERIOR COURT OF NEW JERSEY
LAMAR ADVERTISING OF PENN LLC, :
LAW DIVISION: MIDDLESEX COUNTY
:
Plaintiff, DOCKET NO. MID-L-512 -23
:
v. Civil Action
:
EAST BRUNSWICK TOWNSHIP BOARD STATEMENT OF FACTUAL
OF ADJUSTMENT, : AND LEGAL ISSUES PURSUANT
TO R.4:69-4
Defendant.
:
______________________________________
I. NATURE OF THE ACTION
Plaintiff Lamar Advertising of Penn LLC (“Lamar”) brings the present action in lieu
of prerogative writs challenging the arbitrary and capricious denial by the Board of Adjustment
for East Brunswick Township (the “Board”) of an application for use and bulk variance relief for
the construction and operation of a digital outdoor advertising sign (the “Proposed Billboard”).
II. PROCEDURAL HISTORY
On January June 29, 2021, Lamar submitted its application to the Board for seeking
site plan approval and variance relief to erect the Proposed Billboard.
On (i) April 7, 2022, (ii) July 21, 2022, (ii)I September 1, 2022 and (iv) November
3, 2022 the Board conducted public hearings on Lamar’s Application.
On December 15, 2022 the Board adopted its written resolution denying Lamar’s
Application.
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On January 27, 2023 Lamar filed the present prerogative writs action, seeking to
reverse the Board’s decision.
III. ADMISSIONS AND STIPULATIONS
None except for any as may be set forth in the record below.
IV. STATEMENT OF THE FACTUAL AND LEGAL ISSUES
Lamar is in the business of erecting and operating outdoor advertising structures
throughout the State of New Jersey and elsewhere. Lamar, as contract lessee, proposed to erect
and operate 80-foot industry single-pole, double-faced standard multi-message digital billboard
structure (“the Proposed Billboard”) upon property located at N.J.S.H. Route 18 and Main Street
in the Township of East Brunswick, County of Middlesex, and State of New Jersey, known and
designated as Block 150.01, Lot 2 on the Township’s tax map (the “Property”). The Property is
located within the Township’s SCMXD – Senior Citizen Mixed Use Planned Development Zoning
District. The Property is owned by the Conrail Railroad Company, and sites adjacent to the Route
18 highway in a substantially commercial area.
Though billboards are conditionally permitted elsewhere within the Township, they
are not permitted in the SCMXD zone. Accordingly, on or about June 29, 2021, Lamar submitted
its application to the Board, seeking site plan approval and variance relief to install and operate
the Proposed Billboard (the “Application”). At the time of the filing of its Application, Lamar had
obtained and held a valid New Jersey Department of Transportation Outdoor Advertising Permit
for the Proposed Billboard (the “State Permit”)1.
The substantial and credible lay and professional testimony and evidence presented
1
The State Permit evidenced/confirmed Lamar’s compliance with the requirements of both the Federal
Highway Beautification Act, 23 U.S.C. 131 et. seq., (“FHBA”) and the State of New Jersey ‘s Roadside
Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 et. seq. (the “State Outdoor Advertising Act”)
and all regulations promulgated thereunder.
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to the Board in support of the Application clearly established that Lamar satisfied the “Positive and
Negative Criteria” in accordance with the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-
1 et. seq. (“MLUL”) for the granting the requested variance relief. The evidence demonstrated that
Lamar’s Proposed Billboard was particularly suited within the commercial corridor where it was
located, with no proximately to residences, and with no substantially negative impact whatsoever.
However, despite that substantial and credible evidence and lay and professional testimony in
support of Lamar’s application, and despite the absence of any bona fide and substantiated safety
concerns or other detrimental impacts to the surrounding/neighboring properties, the Board denied
Lamar’s application.
Lamar submits that the Board failed to properly interpret or apply the applicable
law a n d f a c t s to the relevant provisions of the Township’s ordinances regulating Lamar’s
billboard application at the time of its application. As a consequence, the Board’s derelictions and
breach of its quasi-judicial duties and responsibilities mandates reversal of its denial as being
arbitrary, capricious and unreasonable.
In light of the foregoing, on January 27, 2023 Lamar filed the present action in lieu of
prerogative writs seeking to reverse the Board’s denial.
V. AMENDMENTS TO PLEADINGS
None expected.
VI. ANTICIPATED LEGAL OR EVIDENTIARY ISSUES
Legal issues:
(a) Whether the Board’s decision denying Lamar’s application seeking requisite
approvals to erect and operate the proposed billboard within the municipality at the
subject location was arbitrary, capricious, unreasonable and an abuse of discretion
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in discounting or rejecting the evidence presented;
(b) Whether the Board improperly relied upon and gave inappropriate weight to
opposition lay testimony over qualified and duly proffered expert testimony
offered by Lamar’s witnesses.
Evidentiary issues:
(a) Hearing Exhibit A-7 (an LED Module of Proposed SITELINE Digital Sign) will
require Plaintiff to physically demonstrate the module at the time of oral argument.
VII. ABANDONED LEGAL ISSUES
None.
VIII. RECORD BEFORE THE BOARD
See Section XIII hereinbelow.
IX. DISCOVERY
None as this an action in lieu of prerogative writs based upon the record below.
However, despite the fact that this is an appeal based upon the record below, Defendant
nevertheless served discovery requests upon Plaintiff at the time of the filing of Defendant’s
Answer, to which Plaintiff has replied.
X. BRIEFING
Briefing is as scheduled pursuant to the Court’s case management order dated April
24, 2023.
XI. ESTIMATED TRIAL LENGTH
One half day.
XII. REQUESTED TRIAL / ARGUMENT DATE
Oral argument is currently scheduled for October 30, 2023, pursuant to the Court’s
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case management order dated April 24, 2023.
XIII. APPENDIX
The is an appeal based upon the record, which record is comprised of the following
exhibits/documents:
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;
One (1) set of Site Plans consisting of five (5) sheets entitled “Proposed Digital
Billboard, NJSH 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 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;
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;
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;
One (1) copy of a Supplemental traffic Analysis, prepared by Dynamic Traffic, signed
and sealed by Joseph J. Staigar, P.E., and Justin Taylor, PE dated 7/8/22
One (1) copy of an NJDOT Notice of Approval, Application #76842, dated 9/19/19;
One (1) copy of a Lighting Analysis and Optical Measurements and Calculations,
prepared by media resources, signed by Cheng Qian, undated
Zoning Board application with Addendum, dated 5/25/21
Hearing Exhibit A-1 - State DOT Approval Letter (March 31, 2022)
Hearing Exhibit A-2 – Video Taken from Drone from E. Rutherford taken by Mr.
Blatt
Hearing Exhibit A-3 – Video Taken from Drone in Bluffdale, Utah in 2019
Hearing Exhibit A-4 - Colorized Site Plan, Sheet C-03 in Color
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Hearing Exhibit A-5 - Media Resources Report (revised 3/1/22)
Hearing Exhibit A-6 – Figure 6 on Page 5 of Revised Media Resources Document
Hearing Exhibit A-7 - LED Module of Proposed SITELINE Digital Sign
Hearing Exhibit A-8 - Slide with South-Facing Sign Images
Hearing Exhibit A-9 - Slide with Single South-Facing Image
Hearing Exhibit A-10 - Slide with North-Facing Sign Images
Hearing Exhibit A-11 - Slide with Single North-Facing Sign Image
Hearing Exhibit A-12 - Light Cone with Light Pinpointing Residences South Facing
Slide
Hearing Exhibit A-13 - South-Facing Multiple Pinpoint Slide
Hearing Exhibit A-14 – North-Facing Multiple Pinpoint Slide
Hearing Exhibits A-15 - Pinpoint of Residences and Buildings North-Facing Slide
Hearing Exhibit A-16 - Media Resources 6 Page Hand-Out of Cheng Qian, Chief
Product Architect
Hearing Exhibit A-17 - Review of Lighting Considerations for Digital Billboard, 10
slides
Hearing Exhibit A-18 - NJ Rt. 18 Milepost 38.83 Billboard Location Exhibit
Hearing Exhibit A-19 - NJ Rt. 4 Milepost 8.84 Billboard Location Exhibit
Hearing Exhibit A-20 - Storybook Exhibit of 13 Image
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
East Brunswick Police Department Inter-Office Memorandum of October 29, 2021,
February 22, 2022, July 15, 2022 and October 11, 2022
Report of Township of East Brunswick Department of Public Works – Water &
Sewer Utility Division dated February 14, 2022
February 28, 2022 Memorandum of Jill Veit, Code Enforcement Officer, Township
of East Brunswick
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September 20, 2021 Memorandum of Joe Setticase, Code Enforcement Officer,
Township of East Brunswick
October 29, 2021 and August 19, 2021 Memorandum of Richard A. Vigliotti,
Construction Official, Township of East Brunswick
February 25, 2022 Memorandum of John Talbot, Fire Marshall, Fire Districts #1&
#3
The Board’s Memorializing Resolution dated December 15, 2022
Hearing transcripts of April 7, 2022, July 21, 2022, September 1, 2022 and
November 3, 2022
Respectfully submitted,
TRENK ISABEL SIDDIQI
& SHAHDANIAN P.C.
Attorneys for Plaintiff
Lamar Advertising of Penn LLC
By: /s/Reginald Jenkins, Jr.
Reginald Jenkins, Jr.
Dated: May 5, 2023
7
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MID-L-000512-23 05/05/2023 2:17:55 PM Pg 1 of 7 Trans ID: LCV20231466929 TRENK ISABEL SIDDIQI & SHAHDANIAN P.C. Reginald Jenkins, Jr. Attorney I.D. No. 049611998 290 W. Mount Pleasant Avenue, Suite 2350 Livingston, New Jersey 07039 (973) 533-1000 Attorneys for Plaintiff, Lamar Advertising of Penn LLC _____________________________________ SUPERIOR COURT OF NEW JERSEY LAMAR ADVERTISING OF PENN LLC, : LAW DIVISION: MIDDLESEX COUNTY : Plaintiff, DOCKET NO. MID-L-512 -23 : v. Civil Action : EAST BRUNSWICK TOWNSHIP BOARD STATEMENT OF FACTUAL OF ADJUSTMENT, : AND LEGAL ISSUES PURSUANT TO R.4:69-4 Defendant. : ______________________________________ I. NATURE OF THE ACTION Plaintiff Lamar Advertising of Penn LLC (“Lamar”) brings the present action in lieu of prerogative writs challenging the arbitrary and capricious denial by the Board of Adjustment for East Brunswick Township (the “Board”) of an application for use and bulk variance relief for the construction and operation of a digital outdoor advertising sign (the “Proposed Billboard”). II. PROCEDURAL HISTORY On January June 29, 2021, Lamar submitted its application to the Board for seeking site plan approval and variance relief to erect the Proposed Billboard. On (i) April 7, 2022, (ii) July 21, 2022, (ii)I September 1, 2022 and (iv) November 3, 2022 the Board conducted public hearings on Lamar’s Application. On December 15, 2022 the Board adopted its written resolution denying Lamar’s Application. 1 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 2 of 7 Trans ID: LCV20231466929 On January 27, 2023 Lamar filed the present prerogative writs action, seeking to reverse the Board’s decision. III. ADMISSIONS AND STIPULATIONS None except for any as may be set forth in the record below. IV. STATEMENT OF THE FACTUAL AND LEGAL ISSUES Lamar is in the business of erecting and operating outdoor advertising structures throughout the State of New Jersey and elsewhere. Lamar, as contract lessee, proposed to erect and operate 80-foot industry single-pole, double-faced standard multi-message digital billboard structure (“the Proposed Billboard”) upon property located at N.J.S.H. Route 18 and Main Street in the Township of East Brunswick, County of Middlesex, and State of New Jersey, known and designated as Block 150.01, Lot 2 on the Township’s tax map (the “Property”). The Property is located within the Township’s SCMXD – Senior Citizen Mixed Use Planned Development Zoning District. The Property is owned by the Conrail Railroad Company, and sites adjacent to the Route 18 highway in a substantially commercial area. Though billboards are conditionally permitted elsewhere within the Township, they are not permitted in the SCMXD zone. Accordingly, on or about June 29, 2021, Lamar submitted its application to the Board, seeking site plan approval and variance relief to install and operate the Proposed Billboard (the “Application”). At the time of the filing of its Application, Lamar had obtained and held a valid New Jersey Department of Transportation Outdoor Advertising Permit for the Proposed Billboard (the “State Permit”)1. The substantial and credible lay and professional testimony and evidence presented 1 The State Permit evidenced/confirmed Lamar’s compliance with the requirements of both the Federal Highway Beautification Act, 23 U.S.C. 131 et. seq., (“FHBA”) and the State of New Jersey ‘s Roadside Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 et. seq. (the “State Outdoor Advertising Act”) and all regulations promulgated thereunder. 2 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 3 of 7 Trans ID: LCV20231466929 to the Board in support of the Application clearly established that Lamar satisfied the “Positive and Negative Criteria” in accordance with the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D- 1 et. seq. (“MLUL”) for the granting the requested variance relief. The evidence demonstrated that Lamar’s Proposed Billboard was particularly suited within the commercial corridor where it was located, with no proximately to residences, and with no substantially negative impact whatsoever. However, despite that substantial and credible evidence and lay and professional testimony in support of Lamar’s application, and despite the absence of any bona fide and substantiated safety concerns or other detrimental impacts to the surrounding/neighboring properties, the Board denied Lamar’s application. Lamar submits that the Board failed to properly interpret or apply the applicable law a n d f a c t s to the relevant provisions of the Township’s ordinances regulating Lamar’s billboard application at the time of its application. As a consequence, the Board’s derelictions and breach of its quasi-judicial duties and responsibilities mandates reversal of its denial as being arbitrary, capricious and unreasonable. In light of the foregoing, on January 27, 2023 Lamar filed the present action in lieu of prerogative writs seeking to reverse the Board’s denial. V. AMENDMENTS TO PLEADINGS None expected. VI. ANTICIPATED LEGAL OR EVIDENTIARY ISSUES Legal issues: (a) Whether the Board’s decision denying Lamar’s application seeking requisite approvals to erect and operate the proposed billboard within the municipality at the subject location was arbitrary, capricious, unreasonable and an abuse of discretion 3 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 4 of 7 Trans ID: LCV20231466929 in discounting or rejecting the evidence presented; (b) Whether the Board improperly relied upon and gave inappropriate weight to opposition lay testimony over qualified and duly proffered expert testimony offered by Lamar’s witnesses. Evidentiary issues: (a) Hearing Exhibit A-7 (an LED Module of Proposed SITELINE Digital Sign) will require Plaintiff to physically demonstrate the module at the time of oral argument. VII. ABANDONED LEGAL ISSUES None. VIII. RECORD BEFORE THE BOARD See Section XIII hereinbelow. IX. DISCOVERY None as this an action in lieu of prerogative writs based upon the record below. However, despite the fact that this is an appeal based upon the record below, Defendant nevertheless served discovery requests upon Plaintiff at the time of the filing of Defendant’s Answer, to which Plaintiff has replied. X. BRIEFING Briefing is as scheduled pursuant to the Court’s case management order dated April 24, 2023. XI. ESTIMATED TRIAL LENGTH One half day. XII. REQUESTED TRIAL / ARGUMENT DATE Oral argument is currently scheduled for October 30, 2023, pursuant to the Court’s 4 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 5 of 7 Trans ID: LCV20231466929 case management order dated April 24, 2023. XIII. APPENDIX The is an appeal based upon the record, which record is comprised of the following exhibits/documents: 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; One (1) set of Site Plans consisting of five (5) sheets entitled “Proposed Digital Billboard, NJSH 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 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; 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; 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; One (1) copy of a Supplemental traffic Analysis, prepared by Dynamic Traffic, signed and sealed by Joseph J. Staigar, P.E., and Justin Taylor, PE dated 7/8/22 One (1) copy of an NJDOT Notice of Approval, Application #76842, dated 9/19/19; One (1) copy of a Lighting Analysis and Optical Measurements and Calculations, prepared by media resources, signed by Cheng Qian, undated Zoning Board application with Addendum, dated 5/25/21 Hearing Exhibit A-1 - State DOT Approval Letter (March 31, 2022) Hearing Exhibit A-2 – Video Taken from Drone from E. Rutherford taken by Mr. Blatt Hearing Exhibit A-3 – Video Taken from Drone in Bluffdale, Utah in 2019 Hearing Exhibit A-4 - Colorized Site Plan, Sheet C-03 in Color 5 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 6 of 7 Trans ID: LCV20231466929 Hearing Exhibit A-5 - Media Resources Report (revised 3/1/22) Hearing Exhibit A-6 – Figure 6 on Page 5 of Revised Media Resources Document Hearing Exhibit A-7 - LED Module of Proposed SITELINE Digital Sign Hearing Exhibit A-8 - Slide with South-Facing Sign Images Hearing Exhibit A-9 - Slide with Single South-Facing Image Hearing Exhibit A-10 - Slide with North-Facing Sign Images Hearing Exhibit A-11 - Slide with Single North-Facing Sign Image Hearing Exhibit A-12 - Light Cone with Light Pinpointing Residences South Facing Slide Hearing Exhibit A-13 - South-Facing Multiple Pinpoint Slide Hearing Exhibit A-14 – North-Facing Multiple Pinpoint Slide Hearing Exhibits A-15 - Pinpoint of Residences and Buildings North-Facing Slide Hearing Exhibit A-16 - Media Resources 6 Page Hand-Out of Cheng Qian, Chief Product Architect Hearing Exhibit A-17 - Review of Lighting Considerations for Digital Billboard, 10 slides Hearing Exhibit A-18 - NJ Rt. 18 Milepost 38.83 Billboard Location Exhibit Hearing Exhibit A-19 - NJ Rt. 4 Milepost 8.84 Billboard Location Exhibit Hearing Exhibit A-20 - Storybook Exhibit of 13 Image 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 East Brunswick Police Department Inter-Office Memorandum of October 29, 2021, February 22, 2022, July 15, 2022 and October 11, 2022 Report of Township of East Brunswick Department of Public Works – Water & Sewer Utility Division dated February 14, 2022 February 28, 2022 Memorandum of Jill Veit, Code Enforcement Officer, Township of East Brunswick 6 MID-L-000512-23 05/05/2023 2:17:55 PM Pg 7 of 7 Trans ID: LCV20231466929 September 20, 2021 Memorandum of Joe Setticase, Code Enforcement Officer, Township of East Brunswick October 29, 2021 and August 19, 2021 Memorandum of Richard A. Vigliotti, Construction Official, Township of East Brunswick February 25, 2022 Memorandum of John Talbot, Fire Marshall, Fire Districts #1& #3 The Board’s Memorializing Resolution dated December 15, 2022 Hearing transcripts of April 7, 2022, July 21, 2022, September 1, 2022 and November 3, 2022 Respectfully submitted, TRENK ISABEL SIDDIQI & SHAHDANIAN P.C. Attorneys for Plaintiff Lamar Advertising of Penn LLC By: /s/Reginald Jenkins, Jr. Reginald Jenkins, Jr. Dated: May 5, 2023 7