BRUCE A. PATERSON VS. THE COMBINED PLANNING BOARD/ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OFGARWOOD(L-3224-14, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2328-15T1

BRUCE A. PATERSON, ILEEN
CUCCARO, HORACE CORBIN and
DAVID CORBIN,

Plaintiffs-Respondents,

v.

THE COMBINED PLANNING BOARD/
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF GARWOOD,

Defendant-Respondent,

and

ANGELA VILLARAUT and SANDRO
VILLARAUT,

Defendants-Appellants.
________________________________

Argued June 6, 2017 – Decided June 28, 2017

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-3224-
14.

Stephen F. Hehl argued the cause for
appellants (Hehl & Hehl, P.C., attorneys; Mr.
Hehl, of counsel and on the brief; Cory Klein,
on the brief).
 John DeNoia argued the cause for respondents
Bruce A. Paterson, Ileen Cuccaro, Horace
Corbin and David Corbin (Kochanski, Baron &
Galfy, P.C., attorneys; Mr. DeNoia, on the
brief).

New Jersey State Bar Association, amicus
curiae (Thomas H. Prol, Howard D. Geneslaw,
Cameron W. MacLeod, and Michael D. DeLoreto,
on the brief).

Respondent The Combined Planning Board/Zoning
Board of Adjustment of the Borough of Garwood
has not filed a brief.

PER CURIAM

Defendants Sandro Villaraut and Angela Villaraut (the

Villarauts) appeal from an order entered by the Law Division on

November 4, 2015, which reversed a decision by the Combined

Planning Board and Zoning Board of Adjustment of the Borough of

Garwood (Board), and remanded the matter to the Board for a new

hearing. The Villarauts also appeal from an order entered by the

court on January 19, 2016, denying their motion for

reconsideration. We affirm in part, reverse in part, and remand

the matter to the Board for further fact-finding.

I.

The Villarauts are the owners of approximately one acre of

land in the Borough of Garwood. The property is located in the

Borough's RA zone, where single-family residences are permitted

uses but multi-family uses are not. On March 4, 2014, the

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Villarauts filed an application with the Board seeking a use

variance to permit the construction on the property of a multi-

family development consisting of four three-bedroom and five two-

bedroom townhouses.

The Villarauts also sought bulk variances for building

height, floor area, and density for the development. The Villarauts

bifurcated their application and initially sought only the use and

bulk variances, reserving the site plan application for a later

date depending on whether the Board granted the variances.

On May 8, 2014, notice of a public hearing on the application

was published in The Westfield Leader, a newspaper distributed in

Garwood and other municipalities. Notices also were mailed to the

owners of properties within two-hundred feet of the site of the

proposed development.

The notices stated that on May 28, 2014, at 7:30 p.m., the

Board would be considering an application for use and bulk

variances for the proposed construction of nine multi-family units

in the RA zone where multi-family uses are not permitted. The

notices identified the property involved.

The notices also stated that variance relief was being sought

from the zoning restrictions for maximum floor area, the number

of units permitted per acre, and the principal building height,

as well as such other restrictions as may be required. The notices

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informed the public and neighboring property owners that they

could appear at the scheduled hearing and present any objections

they may have to the application.

On May 28, 2014, the Board held a public hearing on the

application. At the start of the hearing, counsel for the

Villarauts explained the variances that were being sought and

stated that the Villarauts would be willing to commit to

restricting occupancy in the proposed development to persons who

are aged fifty-five years or older. Counsel for the Villarauts

then presented expert testimony in support of the application from

professional engineer Thomas J. Quinn, traffic engineer Joseph J.

Staigar, architect Glenn Potter, and professional planner John

McDonough.

Quinn discussed the proposed height of the buildings, noting

that the buildings would have a height of thirty-six feet, which

exceeds the existing thirty-foot limit. Quinn also discussed the

density and floor-area ratio of the structures. He stated that the

proposed residential use would eliminate the current non-

conforming use on the property, and bring the property more into

conformity with the intent of the Borough's zoning ordinance.

Quinn asserted that the property could accommodate the proposed

development.

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 Staigar discussed the traffic-impact study that he prepared

with regard to the proposed development. He reviewed the existing

roadways and traffic conditions in the area, and estimated the

volume of traffic the proposed development is expected to generate.

Staigar said he did not believe the proposed development would

have a negative impact upon traffic. He noted that age-restricted

townhouses would have less of an impact on traffic than dwellings

that are not age-restricted. Staigar also discussed the safety of

the proposed entrances and exits for traffic in the development.

Potter testified as to the size and interior configurations

of the proposed buildings. Potter noted that the buildings each

would be three stories tall. In addition, McDonough testified

about the property, the location, and the development's proximity

to the local train station. He discussed the purposes of zoning,

and stated that granting the variances would advance several of

those purposes.

The Board then gave members of the public an opportunity to

comment. Four residents opposed the application. They expressed

concerns about traffic, whether the project complied with the

Borough's master plan, the run-off of water from the site, and

whether the development was appropriate for the location. Those

who opposed the application did not present any expert testimony.

5 A-2328-15T1
 The Board voted to approve the application, but conditioned

the approval upon restricting occupancy in the townhouses to

persons aged fifty-five years or older. Plaintiffs Bruce A.

Paterson and Ileen Cuccaro were members of the Board that

considered the application. Paterson voted against the

application, and Cuccaro recused herself from the matter.

Thereafter, the Board memorialized its decision in a

resolution dated July 23, 2014. In the resolution, the Board

summarized the expert testimony and the comments of the public.

The Board credited the testimony presented by Quinn, Staigar,

Potter, and McDonough.

The Board found that special reasons existed for the proposed

use variance, and that the project would be consistent with the

Borough's master plan. The Board also found that the development

would improve the aesthetics of the property, and it would have

little negative impact upon the surrounding properties or upon the

Borough's zone plan or zoning ordinance. In addition, the Board

found that strict application of the zoning ordinance would result

in a hardship to defendants.

II.

On September 8, 2014, plaintiffs filed an action in lieu of

prerogative writs in the Law Division, alleging that the notice

of the hearing on the application did not comply with the Municipal

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Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, because the notice

mischaracterized the nature of the relief sought. Plaintiffs also

alleged that the Board's resolution was "insufficient" because it

did not make the required findings of fact or "special reasons"

required to obtain the use variance.

The Law Division judge conducted a hearing in the matter on

October 14, 2015. The parties agreed that plaintiffs Horace Corbin

and David Corbin had standing to challenge the Board's decision.

Therefore, the court did not address whether Paterson and Cuccaro

also had standing to maintain this action.

The judge filed an order dated November 4, 2015, reversing

the Board's decision and remanding the matter to the Board for

further proceedings. In an accompanying statement of reasons, the

judge noted that the MLUL requires that the notice of the hearing

state, among other things, "the nature of the matters to be

considered." N.J.S.A. 40:55D-11.

The parties did not present the court with a copy of the

actual notice used, but they agreed that the notice set forth the

date, time, and place of the hearing. The notice also identified

the property involved, and the location and time when maps and

documents pertaining to the application would be available for

inspection.

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 The judge found that the notice of the hearing did not comply

with N.J.S.A. 40:55D-11 because it failed to inform the public or

neighboring property owners that occupancy in the townhouses would

be age-restricted. The judge stated that the reference in the

notice to multi-family townhouses was not specific enough to inform

the public and affected property owners of the proposed use.

The judge wrote that, "[i]f the public and nearby property

owners had been properly apprised, it is reasonable to believe

that additional individuals may have attended this meeting to

object to the use." The judge decided that the matter must be

remanded to the Board for a new hearing with proper notice.

The judge also discussed the sufficiency of the Board's

resolution, "so that if the matter is presented again, the

deficiencies can be corrected." The judge stated that the Board's

factual findings regarding the grant of the use variance were

insufficient because they were conclusory. The judge stated that

the Board should specify those findings of fact that apply to the

positive and negative criteria for the variance "and explain the

rationale behind these conclusions."

On November 24, 2015, the Villarauts filed a motion for

reconsideration. They presented the court with a copy of the notice

used, and argued that the judge erred by finding that the hearing

notice was deficient. On January 8, 2016, the judge heard oral

8 A-2328-15T1
argument on the motion, and on January 19, 2016, the judge filed

an order denying the motion, with an accompanying statement of

reasons. The judge determined that there was no basis for

reconsideration of her prior order. This appeal followed.

III.

On appeal, the Villarauts argue that: (1) the trial court

erred by finding that the notice of the hearing did not comply

with N.J.S.A. 40:55D-11; (2) the judge misapplied Pond Run

Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment,

397 N.J. Super. 335 (App. Div. 2008), by holding that the hearing

notice was defective; (3) the notice of the hearing does not have

to inform the public of the potentially limitless number of

mitigating conditions a Board might impose upon approval of a

variance; (4) imposition of an age restriction on occupancy does

not render the hearing a nullity; (5) it is irrelevant when the

age restriction first arose, provided the Board adequately

considered the condition; (6) in ruling on the adequacy of notice,

the court must consider the actual form of notice employed; (7)

in deciding that the notice was deficient, the court improperly

considered whether members of the public could have prepared for

the hearing differently; (8) neither plaintiffs nor the trial

court identified any actual or hypothetical concern with the age

restriction, which was a mitigating condition designed to lessen

9 A-2328-15T1
public concern; (9) existence of members of the public who might

be interested in purchasing a residential unit is not relevant to

determining whether the notice was adequate; (10) plaintiffs

waived their right to challenge the notice because a number of

plaintiffs attended the hearing; (11) the hearing notice was

sufficient because the age restriction relates to ownership and

occupancy and was irrelevant to the proposed use from a municipal-

land-use-notice perspective; (12) occupancy of the units could

have been restricted at any time without the need for Board

approval; and (13) this court should exercise original

jurisdiction and affirm the Board's grant of the variances because

the Board's decision was not arbitrary, capricious, or

unreasonable.

We granted the New Jersey State Bar Association (NJSBA) leave

to appear in this appeal as amicus curiae. The NJSBA argues that:

(1) the trial court erred by imposing notice requirements that are

more stringent than those provided in the MLUL; (2) the court

failed to recognize that securing land use approvals is a process

that requires a dialogue between a developer, the Board, and the

public in a limited time period; and (3) the court's decision will

undermine the finality and repose generally accorded to land use

approvals.

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 In response to these arguments, plaintiffs argue that the

trial court correctly determined that the hearing notice was

deficient because the public and neighboring property owners were

not informed that the proposed use would be age-restricted. They

further argue that the Board's findings of fact were inadequate.

IV.

We turn first to the Villarauts' argument that the trial

court erred by finding that the hearing notice did not comply with

N.J.S.A. 40:55D-11. The Villarauts contend that the notice met the

statutory requirements because in addition to the required

information about the hearing, the notice informed the public and

neighboring property owners of the nature and character of the

application that the Board would be considering. They argue that

the notice did not have to refer to the fact that occupancy in the

proposed townhouses would be age-restricted.

When reviewing a trial court's decision regarding the

validity of a local board's determination, "we are bound by the

same standards as was the trial court." Fallone Props., L.L.C. v.

Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div.

2004). Generally, a court must give deference to the actions and

factual findings of local boards and may not disturb such findings

unless they are arbitrary, capricious, or unreasonable. Id. at

560. A board's decision must be based on substantial evidence in

11 A-2328-15T1
the record. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172

N.J. 75, 89 (2002). We review any issue of law de novo. Wilson v.

Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197

(App. Div. 2009).

It is undisputed that the MLUL required the Board to give the

public and owners of properties within two-hundred feet of the

property involved notice of the hearing at which the Villarauts'

application would be considered. N.J.S.A. 40:55D-12(b). The MLUL

requires that the notice

state the date, time and place of the hearing,
the nature of the matters to be considered
and, in the case of notices pursuant to
[N.J.S.A. 40:55D-12] of this act, an
identification of the property proposed for
development by street address, if any, or by
reference to lot and block numbers as shown
on the current tax duplicate in the municipal
tax assessor's office, and the location and
times at which any maps and documents for
which approval is sought are available
pursuant to [N.J.S.A. 40:55D-10(b)].

[N.J.S.A. 40:55D-11.]

It is well established that public notice in accordance with

the MLUL "is a jurisdictional prerequisite for a zoning board's

exercise of its authority." Pond Run, supra, 397 N.J. Super. at

350. The notice must "fairly apprise" the public and neighboring

property owners of the "nature and character of the proposed

12 A-2328-15T1
development." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd.,

295 N.J. Super. 234, 237 (App. Div. 1996).

Here, the Board provided the following notice to the public

and owners of property within two-hundred feet of the subject

property:

PLEASE TAKE NOTICE, that on Wednesday, May 28,
2014 at 7:30PM in the Borough of Garwood
Municipal Building, Council Chambers, . . . a
PUBLIC HEARING will be held by the [Board] for
use and bulk variance approvals (Sections 106-
91B: multi-family use not permitted in RA
Zone; 106-91C(8): maximum floor area – [3500]
sf. permitted, 27,020 sf. proposed; 106-91A:
density – 8 units per acre permitted, 9 units
per acre proposed; 106-91C(5): principal
building height – 2.5 stories/30 ft. maximum,
3 stories/36 ft. proposed) and such other
variances, relief and/or waivers that may be
required upon an analysis of the plans and
testimony at the PUBLIC HEARING on the
bifurcated Application submitted by the
Applicants/Owners . . . .

The notice "fairly apprised" the public and neighboring property

owners with information concerning the "nature and character of

the proposed development." Ibid.

The notice made clear that the applicant was seeking to

construct multi-family structures on property zoned for

residential single-family dwellings. The notice detailed the

number of structures proposed for construction, and informed the

public that variances were being sought from zoning requirements

for building height, number of stories, and maximum floor area.

13 A-2328-15T1
The notice described the proposed structures and informed the

public of the extent to which the structures deviated from the

zoning requirements for which the variances were sought.

As noted, the judge found that the notice was deficient

because it did not state that occupancy in the proposed development

would be restricted to persons aged fifty-five years or older.

However, the fact that the units will be age-restricted does not

raise a "heightened concern" to the public regarding the

application. Shakoor Supermarkets, Inc. v. Old Bridge Twp.

Planning Bd., 420 N.J. Super. 193, 203 (App. Div.), certif. denied,

208 N.J. 598 (2011). Indeed, the restriction of occupancy to

persons aged fifty-five or older would not affect the essential

use of the property for multi-family structures. The age

restriction also would not affect the number of buildings to be

constructed, or the other building features for which variances

were requested.

Our decision in Pond Run does not compel a different result.

In that case, we determined that a notice of a hearing was

deficient because it informed the public that the zoning board

would be considering an application for a variance for

"retail/office" uses, while the proposed development included

plans for a large sit-down restaurant that would seek a liquor

license. Pond Run, supra, 397 N.J. Super. at 352.

14 A-2328-15T1
 We found the "generic reference" in the notice to

"retail/office uses" did not "reasonably put a neighbor, or an

interested resident, on notice that a substantial restaurant was

contemplated for the site." Id. at 352-53. We observed that the

proposed restaurant would be open seven days per week until ten

or eleven o'clock at night and that the restaurant was not an

accessory use of any other building in the proposal. Id. at 353.

The concerns we expressed in Pond Run as to the notice are

not present in this case. As we have explained, the notice of the

hearing fairly apprised the public and neighboring property owners

of the nature and character of the proposed use and the variances

requested.

Our decision in Shakoor Supermarkets supports our conclusion

that the notice used here met the requirements of N.J.S.A. 40:55D-

11. In that case, the applicant sought site plan approval for the

construction of a retail store of 150,000 square feet. Shakoor

Supermarkets, supra, 420 N.J. Super. at 196. The notice did not,

however, identify the store as a Walmart. Ibid. We found that the

notice met the statutory requirements. Id. at 203.

We emphasized that a hearing notice does not have to be

exhaustive. Id. at 201 (citing Perlmart, supra, 295 N.J. Super.

at 239). The notice need only provide a "common sense description

of the nature of the application, such that the ordinary layperson

15 A-2328-15T1
could understand its potential impact upon him or her." Ibid.

(quoting Perlmart, supra, 295 N.J. Super. at 239).

We concluded that the notice adequately informed the public

that a major "big box" store was proposed for the site, and alerted

the public to concerns typically associated with such stores. Id.

at 203. We stated that none of the uses anticipated for the store

raised any "heightened concern" for the public. Ibid. (quoting

Pond Run, supra, 397 N.J. Super. at 354).

Here, the same conclusion applies. The hearing notice

provided a common sense description of the proposed development

and its impact. The limitation of occupancy to persons aged fifty-

five or older did not raise a "heightened concern" for the public

as to the proposed use. Indeed, as the evidence presented at the

hearing showed, age-restricted multi-family dwellings are likely

to have less impact upon the community than dwellings without such

restrictions.

We conclude that that the hearing notice used here complied

with the requirements of N.J.S.A. 40:55D-11. In view of our

decision, we need not consider the other issues raised by the

Villarauts and the NJSBA regarding the notice.

V.

The Villarauts note that because the trial court ruled that

the hearing notice was inadequate, the court did not determine

16 A-2328-15T1
whether the Board's decision to grant the application complied

with the MLUL. The Villarauts therefore argue that we should

exercise original jurisdiction and address this issue.

Rule 2:10-5 provides that "[t]he appellate court may exercise

such original jurisdiction as is necessary to complete

determination of any matter on review." We may exercise such

jurisdiction "when there is 'public interest in an expeditious

disposition of the significant issues raised[.]'" Price v. Himeji,

LLC, 214 N.J. 263, 294 (2013) (quoting Karins v. City of Atlantic

City, 152 N.J. 532, 540-41 (1998)). Original jurisdiction also may

be exercised "to eliminate unnecessary further litigation." Ibid.

We are convinced, however, that the exercise of original

jurisdiction in this matter would not be appropriate.

As we noted previously, the Law Division judge stated that

the Board failed to provide adequate findings of fact to support

its decision granting the variances. We agree with the judge's

assessment of the Board's findings, and conclude that more detailed

fact-findings are necessary.

In this matter, the Villarauts sought variance relief

pursuant to N.J.S.A. 40:55D-70(d), which provides that a board of

adjustment has the power

[i]n particular cases for special reasons,
[to] grant a variance to allow departure from
[zoning] regulations . . . to permit: (1) a

17 A-2328-15T1
 use or principal structure in a district
restricted against such use or principal
structure . . . .

. . . .

No variance or other relief may be granted
under the terms of this section, including a
variance or other relief involving an
inherently beneficial use, without a showing
that such variance or other relief can be
granted without substantial detriment to the
public good and will not substantially impair
the intent and the purpose of the zone plan
and zoning ordinance.

In Medici v. BPR Co., 107 N.J. 1, 21 (1987), the Court stated

that the grant of a use variance requires "an enhanced quality of

proof and clear and specific findings by the board of adjustment

that the variance sought is not inconsistent with the intent and

purpose of the master plan and zoning ordinance." The Court also

stated that the applicant's proofs and the board's findings must

reconcile the proposed use with its omission of the uses permitted

in the applicable zoning district. Ibid.

The Court observed that, when a use variance is challenged,

"a conclusory resolution that merely recites the statutory

language will be vulnerable to the contention that the negative

criteria have not been adequately established." Id. at 23.

Conclusory findings in the resolution will not reflect "the

deliberative and specific determination" required to satisfy the

negative criteria. Id. at 25.

18 A-2328-15T1
 In her statement of reasons, the Law Division judge wrote

that the Board's resolution in this case

states special reasons exist for the proposed
use variance. While the [r]esolution
incorporates [ninety-four] points of
testimony, this conclusory statement alone
regarding special uses is insufficient. The
[r]esolution also states in a conclusory
fashion: that the proposed use is not
inconsistent with the master plan of Garwood,
there will be improvements to the aesthetics
of the property, little if any negative impact
upon the surrounding properties, or upon the
zone plan or the zoning ordinances, and a
hardship to applicant would result from the
strict application of the zoning ordinance.
While these statements may be supported by the
record before the Board, the [r]esolution's
conclusions should specify which findings of
fact apply to the positive and negative
criteria for the variance and explain the
rationale behind those conclusions. As stated
in Medici, a conclusory statement that merely
recites the statutory language is vulnerable
to the contention that the criteria have not
been adequately establish[ed].

We agree with the judge's conclusion that the Board's

resolution lacks the fact-finding required by Medici. We therefore

affirm the provision of the trial court's November 4, 2016 order

remanding the matter to the Board, but limit the remand to further

fact-finding. On remand, the Board shall issue a new resolution,

setting forth specific findings of fact to support its decision.

19 A-2328-15T1
 Affirmed in part, reversed in part, and remanded to the Board

for further proceedings in conformity with this opinion. We do not

retain jurisdiction.

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