KAREN KIEHN VS. JOHN MONGEY (L-0781-17, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1860-17T4

KAREN KIEHN,

Plaintiff-Appellant,

v.

JOHN MONGEY, CHRISTINE
MONGEY, and MORRISTOWN
BOARD OF ADJUSTMENT,

Defendants-Respondents.
_____________________________

Submitted November 8, 2018 – Decided September 13, 2019

Before Judges Nugent and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0781-17.

Mills & Mills, attorneys for appellant (John M. Mills,
III, of counsel and on the brief).

Calli Law, LLC, attorneys for respondents John
Mongey and Christine Mongey (Lawrence A. Calli, on
the brief).
 Brady & Correale LLP, attorneys for respondent
Morristown Board of Adjustment (David B. Brady, on
the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Plaintiff, Karen Kiehn, appeals from a Law Division order that dismissed

her prerogative writs action. In her prerogative writs action, she challenged the

use and bulk variances and site plan approval defendant Morristown Board of

Adjustment (the Board) granted to her across-the-street neighbors, John and

Christine Mongey (Applicants), so they could use their existing two-family

residential structure—a permitted use—as a three-family house—a non-

permitted use—and add more on-site parking. On appeal, plaintiff argues,

among other things, the Board imposed an unlawful condition—owner-

occupancy—as a quid pro quo for granting the application, and its action was

thus arbitrary, capricious, and unreasonable.

Our review of the record leads us to conclude this condition—exscinded

by the trial court—was of sufficient importance to the Board that it might have

chosen to deny the variance without the condition. We thus vacate the Board's

resolution approving the application and remand for a new determination on the

application's merits. For completeness, we address plaintiff's remaining

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arguments: the Board should not have heard the application because it was

barred by the doctrine of res judicata, and the trial court erred by ruling to the

contrary; and, the Applicants failed to sustain their burden of proving the

positive and negative criteria necessary for the relief they requested.

I.

A.

The Applicants' property is located on a Morristown street in an RT-1

zoning district, which permits one- and two-family residences. In August 2016,

Applicants filed a development application with the Board. They proposed "to

retrofit and utilize the existing multifamily residential structure as a [three] -

family house." In addition to a use variance authorized by N.J.S.A. 40:55D-

70(d)(1), Applicants required a density variance authorized by N.J.S.A. 40:55D-

70(d)(5) to permit a lot area per family of 2083 square feet instead of the zone's

required 4200 square feet. Applicants also required multiple bulk variances

pursuant to N.J.S.A. 40:55D-70(c) and site plan approval.

The Board heard and approved the application in February 2017, and

adopted a memorializing resolution the following month. Plaintiff timely filed

a prerogative writs action in which she challenged the Board's decision.

Following a hearing, the Law Division judge modified the Board's resolution by

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exscinding one condition—the property be owner-occupied—but otherwise

upheld the Board's action and dismissed plaintiff's complaint. This appeal

followed.

B.

The Board conducted a hearing on the application at a single session.

Because four Board members recused themselves due to conflicts, three

Planning Board members served as temporary members for the purpose of

hearing the application. Thus, six members heard the application. For approval,

Applicants required five votes. N.J.S.A. 40:55D-70(d).

Applicants presented a single witness, Richard Schommer, an engineer

and planner. Mr. Schommer testified and demonstrated with photographs that

the property's appearance looked very much like other homes in the

neighborhood, including the homes on either side. He explained the home on

the property was built in 1916, and though it existed as a two-family dwelling,

it contained three floors with three separate living quarters, including a fire

escape for the upper floor. Mr. Schommer told the Board that though "[it is] a

two-family . . . it did exist at some time as a three-family." He added, "[t]he

third-floor, the upper unit was, in fact, used as a separate unit not properly, not

legally and that's not a justification. But in a sense it's been used that way, the

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building is suited for that use as you'll see from the inside in a minute." Mr.

Schommer also testified the structure was vacant for "a few years" before the

Applicants purchased it. The second floor was currently occupied. The first

and third floors were vacant.

The engineer described the living quarters on the floor structure. He also

testified that along the street in the block where the property was situated, the

eight homes on the same side of the street as the property included single-family

homes, two-family homes, and one three-family home. Of the eight homes

across the street, only two were single-family homes, four were two-family

homes, one was a three-family home and one was a four-family home.

Mr. Schommer emphasized that the proposed use would require no change

in appearance, modification to, or expansion of the existing structure.

Applicants proposed to expand the driveway approximately 349 square feet and

add two parking spaces, which would comply with the zoning ordinance.

Applicants would also be able to obtain parking permits, if needed, for on-street

parking. In addition, Applicants proposed to add a solid fence and vegetation

"to provide screening for the parking spaces to the neighbor."

Noting the Board could grant a variance in particular cases and for special

reasons, Mr. Schommer opined the proposal would promote the general welfare

A-1860-17T4
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not "necessarily from the use of the facility itself, but really from the

development and use of the site that is particularly suited for this use." He

explained the structure was well-suited for a three-family use because it existed

with three separate floors and three separate living units, and he reiterated there

would be no change to the structure. Moreover, the number of people might be

no different if the use is designated as two-family or three-family, because the

third floor bedrooms are not precluded under the two-family use. Consequently,

the second and third floors could be used together as a single living unit with

four bedrooms.

Mr. Schommer also testified the proposal provided additional housing

stock to the town and promoted a desirable facial environment, as evident from

the existing structure, which would not be altered. The proposal would also be

consistent with one of the goals outlined in the municipality's master plan,

namely, the preservation of the physical character and fabric of existing

neighborhoods.

Addressing the negative criteria—relief can be granted without substantial

detriment to the public good and would not substantially impair the intent of the

zoning ordinance—Mr. Schommer opined that the former typically looks at

impacts on neighboring properties, but there will be no impact on neighboring

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properties, so relief can be granted without substantial detriment to the public

good. Concerning the latter criterion, because Applicants were not seeking to

expand the structure or build something new, there would be no impairment to

the intent of the zoning ordinance. To the contrary, the proposed use is "fairly

consistent" with the neighborhood.

One Board member asked if the Board could make the approval contingent

on the owner occupying the structure. Applicants' attorney represented to the

Board Applicants intended to reside in the structure. The attorney represented:

"This is their home. So a condition . . . would we be amenable to a condition of

approval which says three units so as long as owner occupies one of them." The

attorney added, "I think the prior ownership and maintenance goes hand [in]

hand. I think that's very important, so I understand that role. And I think that

makes sense here, yeah."

Six members of the public, including plaintiff, spoke. Three favored the

application, and three opposed it. Those who favored it did so primarily because

the Mongeys had improved the appearance of the property. One, who had rented

an apartment in the house in 1998, said that with the exception of the clean-up

and improvement in appearance, the structure had not changed.

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 The three members of the public who opposed the application stressed the

need to maintain the character of the neighborhood and not increase density.

They expressed disbelief at the argument that a previous owner's illegal

conversion of the structure from a two-family to a three-family residence should

be ratified. They emphasized the significant potential problem with on-street

parking and they disputed that the public interest would be served in any way

by a use variance.

Plaintiff, a realtor, has been acquainted with the neighborhood where the

property is located for thirty years. She explained that two of the neighborhood

homes once used as two-family homes were now single-family homes. Thus,

though one neighboring home "has at least five cars on the street at all times,"

on-street parking in the block is "just about right." Plaintiff informed the Board

the tenants Applicants were renting to currently had three cars.

Plaintiff asked whether the Board could hear the application when "back

in the 70's" the Board had rejected an application for the identical use. The

Board's attorney replied that a similar application could be brought again

because "this many years later . . . the circumstances will be different.

Undoubtedly, the zoning is different. . . . The type of timeframe you're talking

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about and the changes in facts and probably the legal standards that apply, you

can certainly apply again."

During the Board's discussion of the application, five of the six members

commented on the importance of the condition the house be owner-occupied.

The first member to speak said he was "leaning towards the idea of having a

requirement that it be owner[-]occupied." The Board's attorney immediately

confirmed that Applicants were consenting to that condition and it would carry

with the property. Another member commented on the "gorgeous" appearance

of the property, then added: "And they didn't hesitate at all when I asked the key

question if they would continue to make it owner[-]occupied. They didn't bail

one second on that. They jumped right in and said, yeah, that's fine."

A third member expressed appreciation of the "initial suggestion on that

owner[-]occupied condition." A fourth member also expressed appreciation of

the condition that the house be owner-occupied, "because I think that will

maintain, at least, we hope that it will maintain the property." The Chairman ,

who found the application to be a "difficult one," analyzed the criteria for

granting the application and then explained: "The one thing that I think sways

me a bit more in this situation, again, to reiterate is the owner[-]occupied

element. Neglecting homes . . . often comes from owners not being present on

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the property. And it seems like that's reiterated here by several of the Board

members."

The Board approved the application. In its resolution, the Board noted

"[t]he Applicant[s] offered and agreed, as a condition of approval, a requirement

that the owner of the property reside in the house." The Board found the

following:

19. The Applicant[s'] planner, Mr. Schommer,
opined that the application satisfies the positive criteria
for the use and density variances because the site is
particularly well-suited to the [three]-family use and
density proposed. Permitting the property to be
returned to its [three]-family status will benefit the
general welfare by adding a residential unit to the
Town's housing stock without any additional
construction. Additionally, the three [two]-bedroom
units proposed offer a more typical residential layout
than the present configuration, consisting of a [two]-
bedroom unit and a [four]-bedroom unit.

20. As demonstrated by the planner's Exhibit
E, a [three]-family use on the site will be compatible
with the surrounding neighborhood, where there is a
mix of multi-family residential units. Permitting a
[three]-family use on the subject property is
particularly appropriate because there is sufficient
space on the lot to accommodate all required on-site
parking for the [three]-family use, under both the
Town's Ordinance requirements and the RSIS.

21. With the availability of on-site parking and
the absence of physical alteration to the exterior of the
structure, there will be little or no negative impact on

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 the public welfare. Approval of the Applicant[s']
proposal will also satisfy a Master Plan goal of
preserving neighborhood character.

22. The Board is persuaded by the planner's
testimony as to the Applicant[s'] satisfaction of the
positive and negative criteria for the d(1) and d(5)
variances. The Board also finds that the Applicant[s
are] entitled to the requested dimensional variances
under both the c(1) and c(2) criteria. By reason of the
size of the lot and the existing improvements thereon,
compliance with the dimensional criteria cannot be
obtained. The Board finds that the Applicant[s']
proposal to accommodate needed parking on site is
appropriate, with the benefits derived therefrom
outweighing the detriment associated with a minor
increase in the existing deviation.

The resolution stated "[t]he property shall remain owner[-]occupied."

C.

The Law Division judge who dismissed plaintiff's prerogative writs action

upheld the Board's exercise of discretion in hearing the application,

notwithstanding a similar application had been filed years earlier. The judge

rejected plaintiff's argument that the Board had relied on the engineer's net

opinion in determining that Applicants had satisfied the criteria for the required

variances. The judge agreed with plaintiff that the Board imposed an unlawful

condition of owner-occupancy in granting the application. Having determined

A-1860-17T4
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the condition was unlawful, the judge struck it, but found the grant of approval

otherwise justified and dismissed plaintiff's action. She filed this appeal.

II.

A.

We begin our analysis of the parties' contentions with certain basic zoning

principles. The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163,

grants zoning boards of adjustment the authority to grant use variances. N.J.S.A.

40:55D-70(d). The statute states:

The board of adjustment shall have the power to:

....

d. In particular cases for special reasons, grant a
variance to allow departure from regulations pursuant
to article 8 of this act to permit: (1) a use or principal
structure in a district restricted against such use or
principal structure, (2) an expansion of a
nonconforming use, (3) deviation from a specification
or standard . . . (4) an increase in the permitted floor
area ratio . . . (5) an increase in the permitted density
....

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.

A-1860-17T4
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 [N.J.S.A. 40:55D-70(d).]

The grant of a use variance under this section requires proof of both "positive

and negative criteria." Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992).

An applicant's proof of "positive criteria" requires a showing that special

reasons exist to grant the use variance. See N.J.S.A. 40:55D-70(d). These

"special reasons" are defined by the general purposes of the zoning laws,

codified in N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376,

386 (1990); see also Medici v. BPR Co., 107 N.J. 1, 10 (1987). The asserted

positive criteria must be site-specific, in that the applicant must show that the

proposed use is "peculiarly fitted to the particular location for which the

variance is sought." Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967).

The "negative criteria" requirement of subsection d incorporates two

distinct but related forms of proof. First, an applicant must show that the non -

conforming use of the property will not cause "substantial detriment to the

public good." N.J.S.A. 40:55D-70(d). The focus of this criterion is also site-

specific. It requires an assessment of the proposed variance's impact on

surrounding properties and whether it will cause "damage to the character of the

neighborhood." Medici, 107 N.J. at 22 n.12.

A-1860-17T4
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 Second, an applicant must show that the proposed non-conforming use

"will not substantially impair the intent and the purpose of the zone plan and

zoning ordinance." N.J.S.A. 40:55D-70(d). To carry this burden, applicants

must offer "an enhanced quality of proof . . . that the variance sought is not

inconsistent with the intent and purpose of the master plan and zoning

ordinance." Medici, 107 N.J. at 21. Such "enhanced proof" must "reconcile the

proposed use variance with the zoning ordinance's omission of the use from

those permitted in the zoning district." Ibid.

When reviewing a zoning board's decision to grant or deny a development

application, we apply the same standard as the Law Division. D. Lobi Enters.,

Inc. v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009). Our

review is deferential. Price v Himeji, LLC, 214 N.J. 263, 285 (2013). That is

so because such boards "are composed of local citizens who are far more familiar

with the municipality's characteristics and interests and therefore uniquely

equipped to resolve such controversies." First Montclair Partner, L.P. v. Herod

Redevelopment I, LLC, 381 N.J. Super. 298, 302 (App. Div. 2005). Boards have

"peculiar knowledge of local conditions [and] must be allowed wide latitude in

their delegated discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562,

597 (2005).

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 A "board's decisions enjoy a presumption of validity, and a court may not

substitute its judgment for that of the board unless there has been a clear abuse

of discretion." Price, 214 N.J. at 284 (citing Cell S. of N.J., Inc. v. Zoning Bd.

of Adjustment, 172 N.J. 75, 81 (2002)). "Even if we have some doubt about the

wisdom of a board's action or some part of it, we may not overturn its decision

absent an abuse of discretion." D. Lobi Enters., 408 N.J. Super. at 360 (citing

Medici, 107 N.J. at 15).

The burden is on the party challenging a board's decision to show the

decision was "arbitrary, capricious, or unreasonable." Kramer v. Bd. of

Adjustment, 45 N.J. 268, 296 (1965). "A board acts arbitrarily, capriciously,

or unreasonably if its findings of fact in support of a grant or denial of a variance

are not supported by the record, [Smart SMR of N.Y., Inc. v. Bd. of Adjustment,

152 N.J. 309, 327 (1998)], or if it usurps power reserved to the municipal

governing body or another duly authorized municipal official, Leimann v. Bd.

of Adjustment, 9 N.J. 336, 340 (1952)." Ten Stary Dom P'ship v. Mauro, 216

N.J. 16, 33 (2013).

That said, a zoning board "'may not, in the guise of a variance proceeding,

usurp the legislative power reserved to the governing body of the municipality

to amend or revise the [zoning] plan. . . .'" Price, 214 N.J. at 285 (quoting Feiler

A-1860-17T4
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v. Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990)). "This is of

particular concern when a zoning board considers a use variance because, 'as the

term implies, [it] permits a use of land that is otherwise prohibited by the zoning

ordinance.'" Ibid. (quoting Nuckel v. Planning Bd., 208 N.J. 95, 101 (2011)).

Moreover, a board's determinations of questions of law are not entitled to

deference by an appellate court. We review questions of law de novo. See, e.g.,

Fallone Props., LLC v. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004);

Grancagnola v. Planning Bd., 221 N.J. Super. 71, 75 n.5 (App. Div. 1987).

B.

With these principles in mind, we turn to plaintiff's argument that the

Board's action in granting the use variance was arbitrary, capricious, and

unreasonable because it imposed an unlawful condition—owner-occupancy—as

a quid pro quo for the variance. When evaluating a challenge to conditions on

land use approvals, the court must address two issues: first, whether the

condition is valid; second, if the condition is not valid, the consequence

concerning the underlying approval. Gayatriji v. Borough of Seaside Heights,

372 N.J. Super. 203, 210 (Law Div. 2004).

None of the parties challenge the trial court's determination that the

owner-occupancy condition of the use variance was unlawful. Indeed, it is "a

A-1860-17T4
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fundamental principle of zoning that a zoning board is charged with the

regulation of land use and not with the person who owns or occupies the land."

DeFelice v. Zoning Bd. of Adjustment, 216 N.J. Super. 377, 381 (App. Div.

1987) (citing 1 Rathkopf, The Law of Zoning & Planning, § 1.04 (Clark

Boardman 4th ed. 1975)). Thus, "[a] variance is not personal to the property

owner, but runs with the land." Ibid. (citing Garrett v. Richfield, 344 N.E.2d

154, 155 (Ohio Ct. App. 1973)). For that reason, "conditions which make a

variance personal to the property owner are invalid." Id. at 382; accord Orloski

v. Planning Bd., 226 N.J. Super. 666, 672 (Law Div. 1988) ("The conditions

imposed must be directly related to and incidental to the proposed use of the

land, and must be without regard to the person who owns or occupies it.")

(quoting 3 Rathkopf, The Law of Zoning & Planning, § 40.02 (4th ed. 1987)).

The more difficult question is the effect of the unlawful condition on the

underlying variance. If there is substantial doubt that the Board of Adjustment

would have granted the variance absent the condition, it is appropriate to remand

the matter to the Board to re-determine whether the application should be

granted absent the condition. See Houdaille Constr. Materials, Inc. v. Bd. of

Adjustment, 92 N.J. Super. 293, 304 (App. Div. 1966); accord Cox & Koenig,

N.J. Zoning & Land Use Administration, § 19-6.3 at 423 ("Where the condition

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is invalid but was of sufficient importance to the Board that the Board might

choose to deny the application without the condition, and might have legitimate

grounds for denial, there may be a remand to the Board after excision for a new

determination on the merits of the application.").

Here, the record of the discussion among the Board members raises

substantial doubt as to whether the Board would have granted the application

absent the condition. Five votes were required to grant the variance. Five of

the six members noted the importance of the condition. One member

characterized the owner-occupancy condition as the "key question," and the

Chairman's comments suggest that for him the condition was the persuading

factor.

Moreover, as one member noted, the variance flew in the face of

Morristown's Master Plan. As the Board's Planner explained in his report to the

Board:

The existence of [the use of several neighborhood
properties with more than two dwelling units] can be
explained by the fact that the RT-1 and RT-2 were
previously a consolidated RT district and therefore this
neighborhood previously permitted up to four family
dwellings. The 2003 Morristown Master Plan
recommended separating the RT district into RT-1 and
RT-2 districts. The change was introduced into the
Land Use Regulations by the Governing Body on
September 11, 2007. After the 2007 Land Use

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 Regulations amendment, this neighborhood was
permitted a maximum of two dwelling units per
property.

According to the section of the Master Plan Study included in the appellate

record,

After careful consideration the decision was made to
split the RT zone into two zones—The RT-1 and RT-2.
The RT-2 will allow one to four family structures, just
as the RT zone currently does. The RT-1 zone will only
allow one and two family structures. The purpose
behind this decision is to prevent further congestion in
these areas, better protect the adjoining single-family
residential neighborhoods and to allow for some
redevelopment at an appropriate scale. It was also
decided that the RT-1 zone should contain a grandfather
provision that will allow existing three and four family
structures to be modified and upgraded without the
need for a use variance.

In view of the documented importance of the owner-occupancy condition

to five Board Members and the variance grant's facial undermining of one of the

Master Plan's policy underpinnings, there is substantial doubt as to whether the

Board would have approved the use variance absent the condition. Accordingly,

we vacate the Board's resolution approving the application and remand the

matter to the Board to determine whether the application should be granted

without the condition. The Board should consider any additional arguments the

Applicants, plaintiff, or any other party wishes to present.

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 III.

For completeness, and to ensure proper appellate review in the event of a

future appeal, we add the following brief comments concerning plaintiff's

remaining arguments.

A.

Plaintiff asserts the application is barred by the doctrine res judicata. "As

a general rule, an adjudicative decision of an administrative agency 'should be

accorded the same finality that is accorded the judgment of a court.'" Bressman

v. Gash, 131 N.J. 517, 526 (1993) (quoting Restatement (Second) of Judgments

§ 83 cmt. b (Am. Law Inst. 1982)). "Whether an application is to be rejected on

the grounds of res judicata is in the first instance for the board to determine."

Mazza v. Bd. of Adjustment, 83 N.J. Super. 494, 496 (App. Div. 1964). We will

uphold the board's exercise of discretion in making its determination unless its

action is arbitrary, capricious, or unreasonable. Ibid.; accord Bressman, 131

N.J. at 520.

Here, in response to the directive on their application, "If there were any

previous Board applications for the subject property, please give the date, Board,

type of application and decision of the Board," Applicants responded, "None

known to Applicant." None of the Board members mentioned the previous

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application, so perhaps they were unaware of it. The only discussion concerning

the previous application occurred when plaintiff asked during the public sess ion

whether the Board could hear the application, given the previous denial of a

nearly identical application "in the 70's." As noted, the Board's attorney replied

that a similar application could be brought "this many years later because the

circumstances will be different. Undoubtedly, the zoning is different. . . . The

type of timeframe that you're talking about and the changes in facts and probably

the legal standards that apply, you can certainly apply again."

We assume the Board did not address the issue because of the non-

disclosure on the application and because the issue was never squarely raised,

but rather posed in passing as a question during the public session. The issue

has now been raised. The Board should address it after reviewing its previous

decisions, which are included in the appellate record, but may not have been

available during the Board's hearing on the application. Although the Board

attorney's response may have been accurate, we are unable to discern from the

record whether it is factually accurate or legally sound. Even if both, the

decision should be made by the Board, not by the attorney.

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 B.

Plaintiff argues the Board acted arbitrarily by erroneously considering

zoning in a Historic district, though Applicants' property is not in any Historic

district, and by relying on the "net opinion" of the Applicants' expert. The record

does not support plaintiff's argument that the Board relied on permitted uses in

the Historic district when deciding the application before it. Most of the

references to the Historic district came from Applicants' attorney, not from the

Board members.

Plaintiff's argument concerning Applicants' expert is not entirely without

merit. For example, the expert noted Applicants' home had once been used—

albeit unlawfully—as a three-family home. Nothing in the record reveals the

source of the expert's knowledge, and nothing in the record establishes when or

how long the situation occurred. In the absence of any reliable information

concerning the topic, it is difficult to discern how the alleged previous unlawful

use can be a factor in considering the current suitability of the site for the

variance.

Similarly, plaintiff's criticism of the Board's finding that granting the

variance will create a desirable visual environment is not entirely without merit

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considering that neither the structure nor the appearance of the house was going

to change.

A board's decision that an applicant did or did not satisfy the statutory

criteria for a use variance must be based on the evidence presented at the

hearing, including the sworn testimony of witnesses. See Kramer, 45 N.J. at

280. Thus, the arguments of an applicant's attorney are not competent evidence

from which a board may base a decision.

We perceive that some of the issues plaintiff raises could have been

avoided by the development of a slightly better record, a matter that can easily

be remedied during the rehearing.

Reversed and remanded for further proceedings before the Board

consistent with this opinion. We do not retain jurisdiction.

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