BARBARA CAMACHO VS. CITY OF JERSEY CITY ZONING BOARD OF ADJUSTMENT (L-3742-19, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3387-19

BARBARA CAMACHO,
NATHALIE COOK,
CHERYL MORRISON,
JOANNE GORMAN,
CURTIS ALLEN,
JOHN ALLEN, and
SHEILA MUHAMMED,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY
ZONING BOARD OF
ADJUSTMENT and INN
AT GARFIELD, LLC,

Defendants-Respondents.
__________________________

Argued June 2, 2021 — Decided June 17, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3742-19.

Robert F. Simon argued the cause for appellants
(Herold Law, PA, attorneys; Robert F. Simon, of
 counsel and on the briefs; George W. Crimmins III and
Cara A. Murphy, on the briefs).

Vincent J. LaPaglia, Esq. argued the cause for
respondent City of Jersey City Zoning Board of
Adjustment (The Law Offices of Vincent J. LaPaglia,
Esq., attorneys; Vincent J. LaPaglia and Genevieve A.
LaPaglia, on the brief).

Gregory J. Castano, Jr. argued the cause for respondent
Inn at Garfield, LLC (Castano Quigley, LLC, attorneys;
Gregory J. Castano, Jr., on the brief).

PER CURIAM

Plaintiffs Barbara Camacho, Nathalie Cook, Cheryl Morrison, Joanne

Gorman, Curtis Allen, John Allen, and Sheila Muhammed appeal from an April

3, 2020 order dismissing their complaint in lieu of prerogative writs, which

challenged an application for final site plan approval by defendant Inn at

Garfield, LLC (Garfield) and a resolution by defendant City of Jersey City

Zoning Board of Adjustment (Board) approving the application. We affirm.

The Board held a hearing over the course of two days, heard testimony

from expert witnesses presented by Garfield and plaintiffs, and heard from

members of the community in favor of and against the project. We take the

following facts from the record.

Garfield applied to build a four-story twelve-unit dwelling across three

contiguous vacant lots located on the corner of Garfield and Pearsall Avenues

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within an R-1 Zone in Jersey City. The R-1 Zone allows for one- and two-family

homes. The proposed building included a lobby, a courtyard open to the public,

and on-site parking for each unit on the ground floor. The remaining three

stories were for the dwellings, which included a roof-top deck and green roof.

Garfield sought variances pursuant to N.J.S.A. 40:55D-70(c) and (d) for the:

number of units; height of the units; side yard setback; rear yard setback; front

yard setback; parking space dimensions; and building coverage for the property .

Garfield's application addressed the "positive" and "negative" criterion,

N.J.S.A. 40:55D-70(c)(1) and N.J.S.A. 40:55D-70(d), arguing the benefits of

the proposed project substantially outweighed potential detriments because it

would significantly improve the vacant property. Garfield also argued granting

the variance would advance the purposes of the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -63, and promote the general welfare within the

meaning of N.J.S.A. 40:55D-2(a) because "[t]he project is proposing a density

that is consistent with other multi-family buildings located along Garfield

Avenue, and therefore promotes the establishment of appropriate population

densities and concentrations that will contribute to the well-being of persons,

neighborhoods, communities; consistent with N.J.S.A. 40:55D-2(e)."

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 Regarding the use variance, Garfield noted the property was particularly

well suited to accommodate the building because "[t]he subject property is an

oversized, corner lot with a total of 6,630 square feet, which is significantly

larger than the 2,500 square foot lot size required in the R-1 District." It also

noted "[t]he proposed multi-family building is consistent with other multi-

family buildings located along Garfield Avenue, which is a major thoroughfare

in Jersey City, and in the surrounding area."

Regarding the height variance, Garfield stated:

the subject property can accommodate the increased
height of the proposed building and is consistent with
other buildings within the surrounding area. From an
urban design standpoint, the property location, on a
corner, supports the increased height. Furthermore, the
proposed project provides adequate setbacks from the
adjacent residential structures, preserving light and air.
The proposed project provides an approximate [three]-
foot setback from the adjacent structure to the west
along Garfield Avenue, which is itself built to the lot
line. From the south, along Pearsall Avenue, the
building is set back [twenty] feet from the adjacent
structure. In total, the proposed building will cover
approximately [sixty percent] of the property.

Garfield argued its building "will promote a more desirable visual

environment through creative development techniques . . . by [re]placing the

vacant lot with a new modern building." It noted the project advanced the Jersey

City Master Plan "by developing a currently vacant lot, which will provide [a]

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unique, attractive, and high-quality residential area that will serve existing

residents and attract new residents with a wide range of housing and life -style

choice."

Notice of the hearing on Garfield's application was issued on May 13,

2019, and included details of the proposed project and variances sought. In

relevant part, the notice stated: "The purpose of this application is to . . .

[c]onstruct a new four . . . story, twelve . . . dwelling unit building with twe lve

. . . parking spaces across three . . . lots in the R-1 zone." The notice also stated

"[a]ny person interested in this application will have the opportunity to address

the Board at the meeting of May 23, 2019 at 6:30 p.m. in the Council Chambers

of City Hall . . . ."

The Board held the first hearing on May 23, 2019, during which Garfield

presented testimony from an architect and a professional planner. The

architect's testimony addressed each facet of the application, including setbacks,

ingress and egress from the property, tree plantings on the ground level, unit

height, parking, utilities and fire safety, apartment lay outs, and building façade

and exterior construction materials.

The planner's testimony addressed the zoning aspects and variances

needed for the project and was equally comprehensive. The planner explained

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a (d)(1) use variance was necessary since multifamily use was not permitted in

the zone where the property is located, as well as a (d)(6) building height

variance since the proposed building height exceeded the maximum permitted

height in the zone. He testified the purpose of the R-1 Zone is "to encourage

infill residential development." He noted the corner lot was a vacant property

and over the years served as a dumping ground for "various garbage product[s]"

and development of the lot would eliminate the dumping problem.

The planner also addressed the density issue by pointing out similar

structures in the neighborhood. He stated:

Currently this property is three lots that all front
onto Garfield Avenue. In their own right, they're all
undersized lots. So they would be entitled to make an
application, but notwithstanding, an application for a
conforming two-family unit would require substantial
variances because of the undersized lots and it would
likely need relief from this Board.

So what we've done on this application is
consolidate that lot, or propose to consolidate that lot
and provide a larger structure.

Further north, on Garfield Avenue, just to orient
the Board, there's a large . . . apartment building. This
is a much older building. The brick on it is decades old.
I don't know when it was built. This structure, four and
a half stories, it has [forty-four] units. When you
aggregate that to the acreage in terms of density, that's
approximately 180 units an acre.

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 Further south on this intersection of Winfield
Avenue and Garfield, there's a building that contains
five units with a density on that property of 100 units
an acre.

There are other multifamily developments
throughout this area that are approximately within this
four-block radius that we've kind of evaluated. There
are approximately [twenty-five] other multifamily
buildings. They range in density from [twenty-five]
units on the three-family, which would be considered a
multifamily in this zone, all the way up to that 189 unit
multifamily . . . building here.

Putting in perspective, what's being proposed on
this lot is a [twelve] unit building and the density on
this size property, 6,600 square feet, is [seventy-nine]
units an acre. So we're certainly within that threshold
. . . on the low end of [twenty-five] all the way up to
186. So when you're comparing apples to apples, this
lot is appropriate for a [twelve] unit building. It's
within that existing range of multifamily buildings
within these four-block radius[es].

The planner also explained the onsite parking would offset any impacts on on-

street parking in the neighborhood and would reduce the number of curb cuts by

having one garage entrance to the building.

The planner testified the building was consistent with the Jersey City

master plan because the architecture "harness[ed]" the aesthetics of other

existing structures, is consistent with other multi-family dwellings in the city,

and also met the diversity in housing envisioned by the master plan. He opined

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the building was the "appropriate density for the site. It's a large enough

size. . . . It's certainly not considered a high-rise building by Jersey City

standards." In addition to the rooftop deck, he noted "the element of the

courtyard in the rear . . . that will be . . . accessible . . . . It will provide for an

amenity space not only for the tenants, but anyone who wants to come [to] sit

and relax under the [shade] in a garden setting."

The planner further testified as follows:

With respect to the [(d)(6)] height variance,
obviously what we're proposing is a four-story structure
with an overall roof height of . . . [forty three] feet. To
put it in perspective, this Board may be aware that in
[the] R-1 [zone], a three-story structure is permitted;
what's being proposed is four. But the actual overall
height . . . what's permitted . . . is [thirty nine] feet for
a flat roof and [forty four] feet for a sloped roof.

And I'm not trying to split hairs, but my point
being is that it's well within reason of a consistent
permitted building. Forty-three feet, in my opinion, for
a four-story structure is an efficient use of the building
height and it's consistent with other permitted uses in
the area or other permitted building height in the area.

The adjacent multifamily structure to the north on
Garfield Avenue [is a] four-and-a-half-story
structure[;] we're actually less than that in building
height when you compare it based on me counting
brick. That's how I was able to estimate that building
height.

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 Addressing the setbacks, the planner explained a zero-foot setback would

be appropriate because it would accommodate the parking by maximizing the

ground floor parking area. Responding to neighborhood concerns, the planner

explained the site plan includes a proposal for a stormwater detention system

"that will be sized appropriately for the lot and the building to offset any sort of

mitigation." Regarding the negative criteria, the planner testified in terms of the

building mass

as the sun casts a shadow, most of the impact will be to
the street and the intersection, which serves as a
mitigating factor to the building mass.

We provide enough separation from structures to
mitigate and provide for light and air, so there's no
substantial impact there. And this building will be
designed to modern building code standards, so
everything in the plan that the architect covered is
appropriate and beneficial and future residents will not
have any sort of impacts on their livelihood.

With respect to the second prong of the negative
criteria, no substantial impairment of the zone plan, I
want to recognize that this is an R-1 district that permits
one- and two-family homes. But as I mentioned earlier
and through our evaluation of this neighborhood, there
are a number of other multifamily structures. This
really does try to accomplish the goal of creating an
infill residential project which will help preserve the
integrity of the area and complete that block. So I do
think there are advantages to this application and what's
being proposed here that really try to advance the

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 purposes of zoning and advance the purposes of zoning
and advance the goals and objectives of the R-1 district.

Plaintiffs also presented testimony from a planner. The planner testified

the proposed building "is a very difficult design, and the reason is there's too

many units on the property. The applicant does not have anything close to the

residential site improvement standards." He claimed the variances sought by

Garfield did not justify constructing one building on three lots and that Garfield

could have applied for (c) variances to build three single family dwellings on

each of its three lots, which would have been more suitable. Plaintiffs' planner

testified Garfield instead

wants three [(d)] variances: A use that's not permitted
in the zone, a height that is not permitted — and I would
say it's both stories. The reason that the [MLUL] says
you get a [(d)(6)] variance when you're [ten] percent or
[ten] feet over, [is that ten] feet is a story. This is a full
story above what is permitted. And this is a density
variance also. The applicant has effectively much more
density than is permitted by right.

So, in my opinion, there are no public purposes
that are legitimately advanced by this. The applicant
talks about the most appropriate use of land. Well,
that's not something you make up. The zoning
ordinance tells you what the most appropriate use of
land and the master plan tells you what the most
appropriate use of land is here and it's one- and two-
family dwellings.

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 The applicant has to show particular suitability.
This is a lot that is a composite of three lots. They can
build three conforming uses on this property. That's not
a hardship. That's what the zoning ordinance was
looking for. What's appropriate by having a building
that is too big, too dense?

The applicant talks about a [twenty]-foot rear
yard. It's supposed to be [thirty-five] feet. Well,
actually, it's [sixteen] feet in the rear yard because there
are balconies on the back of the buildings. So we're
going to have people now [sixteen] feet from the rear
property line, which is supposed to be [thirty-five] feet.

....

When the application was presented, there's
something like public space in the back. Well, you're
supposed to have public space and you're supposed to
have it in proportion to the building coverage. That's
one of the variances they want. Although the applicant
is going to let, you know, tenants use the open space,
the answer is that's fine except the applicant doesn't
have enough. This is a regular shaped property. Again,
it could be developed with three conforming uses.
Maybe some [(c)] variances, but no [(d)] variances.

In terms of the negative criterion, . . . the building
is too close to the front property lines. Clearly out of
character with the area. The building is too tall. . . .

It is clearly substantially detrimental to the zone
plan and zoning ordinance. Your master plan and your
zoning ordinance are in sync. If you think that the
Planning Board didn't know what the land use pattern
was in the area, that's incorrect. This . . . neighborhood
from 1912 on has largely stayed the way it is. This is
an anomaly of the area.

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 In my opinion, there are no special reasons. The
[(d)1] variance is the hardest variance to get. It's the
[Medici1] standard where you have to show not only
peculiar suitability, but you have to show why it's not
detrimental to the public good or does not impair the
zone plan and zoning ordinance by an enhanced burden
of proof. You have to really go through the standards.
I don't think the applicant has met those standards.

After testimony from plaintiffs' planner, members of the community asked

questions about the application. Then the meeting was adjourned to June 27,

2019.

When the matter returned, the Board continued to hear testimony from

community members regarding the building's effects on traffic and noise level,

the public works system, garbage, and the building's proximity to other

structures and the effects it would have on privacy. The Board also heard

testimony from a community member who supported the project because it

would occupy the vacant land and would "no longer [be] a drug spot."

Garfield responded it would address the privacy concerns by re-orienting

the rooms in the building. Garfield also stated it would contain the building's

garbage inside the building so as not to combine with garbage from neighboring

properties and avoid encouraging rodents and other animals.

1
Medici v. BPR Co., 107 N.J. 1 (1987).
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 The Board passed a seventeen-page resolution in favor of the project and

made the following findings of fact:

17. The [a]pplication secures safety from fire,
flood, panic and other natural man-made disasters in
accordance with purpose B of the MLUL by proposing
a detention system designed to collect all water runoff
generated on-site as well as approximately green roof
area and landscaping;

18. The [a]pplicant continues efforts to stabilize
and upgrade residential neighborhoods and protects and
preserves residential neighborhoods from intrusion by
non-residential uses in accordance with the Land Use
Objectives of the Jersey City Master Plan;

19. The overall site design mitigates issues
related to the bulk standards for the R-1 Zone;

20. The proposed use is suited to the [p]roperty
because the site is considered oversized;

....

24. The overall site design mitigates issues
related to the bulk standards for the R-1 Zone;

25. Garfield Avenue is more suitable for the
proposed [seventy-nine] units per acre when compared
to adjoining streets.

26. The [a]pplicant studied below grade parking
and determined it was not feasible and would reduce the
number of parking spaces.

27. The [a]pplicant did not perform a formal
shadow study because of the [p]roperty's location on

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the block. Virtually all of the shadow cast from the
building would be cast in the intersection. The sun rises
in the east and Garfield Avenue itself will absorb much
of the shadow. Later in the day as the sun sets in the
west the shadow will be cast into Pearsall Avenue itself.

28. The proposed building height is marginally
greater than [the] maximum permitted in the R-1 zone
would be.

29. The [a]pplicant has agreed to reduce the floor
to ceiling heights which would, in turn, reduce the
height of the building to mitigate objector concerns.

30. The [a]pplicant has agreed to move the
garbage storage inside of the building to mitigate
objector concerns.

31. The [a]pplicant has agreed to work with
Division of Planning Staff on the façade design and
elements to mitigate objector concerns.

32. The [a]pplicant has worked with the
municipal water authority in designing this
development. The [a]pplicant is expected to share the
costs of infrastructure upgrades scheduled to begin in
September 2019;

33. The [a]pplication would create a single curb
cut on Pearsall Avenue. An as-of-right project would
create three curbcuts on the busier Garfield Avenue.

34. The [a]pplication advances the general
welfare and public good of . . . New Jersey and . . .
Jersey City in accordance with purpose A of the MLUL
by advancing the redevelopment of the site, providing
one parking space per unit, providing green roof,
stormwater detention system, bicycle parking spaces,

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and providing ADA [(Americans with Disabilities
Act)] compliant units; and

35. The [a]pplication provides sufficient space
in appropriate locations for a variety of uses in order to
meet the needs of all New Jersey citizens in accordance
with purpose G of the MLUL by providing spacious
units that are ADA compliant and one parking space for
each unit as well as outdoor community space; and

36. The [a]pplication promotes a desirable visual
environment through creative development techniques
and good civic design and arrangement in accordance
with purpose I of the MLUL through the new
construction of a twelve-unit, four-story brick building
on a vacant oversized lot; and

37. The [a]pplication establishes appropriate
population densities and concentrations that will
contribute to the well-being of persons, neighborhoods
and communities consistent with purpose E of the
MLUL;

38. There are no substantial detriments to the
public welfare. The proposed project involves the
construction of an in-fill, multi-family residential
development on a vacant parcel in a residential
neighborhood. The proposed setbacks provide
adequate light and air to adjacent structures. The new
building which meets all current building codes,
including egress, sprinklers, etc.

39. Granting the variances will likewise not
result in a substantial detriment to the intent and
purpose of the zone plan and zoning ordinance. The
purposes of the R-1 District include "encouraging
compatible in-fill development" and "preserving the
integrity of residential neighborhoods." The proposed

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 use is consistent with, and promotes, the residential
character of the neighborhood.

40. The proposed project advances the Jersey
City Master Plan by developing a currently vacant lot,
which will provide unique, attractive, and high-quality
residential area that will serve existing residents and
attract new residents with a wide range of housing and
life-style choice.

The Board approved the application for the (d) and (c) variances subject

to certain conditions. Relevant to the issues raised on this appeal, the Board

required Garfield to reduce the overall height of the building by two feet and

relocate the trash room inside the building.

Plaintiffs filed a complaint in lieu of prerogative writs challenging the

resolution. They argued Garfield did not meet its burden of proof as to the (d)

variance application, failed to obtain a (c) variance, and failed to meet minimum

parking requirements. Plaintiffs also argued Garfield's experts had offered net

opinions because they failed to conduct a shadow study and the Board erred in

accepting their testimony and concluding the building's height was permitted.

They also argued the Board's findings were not based on the evidence and there

was inadequate notice to the public of the hearing.

Judge Mary K. Costello issued a comprehensive written decision

addressing each of plaintiffs' claims and entered an order dismissing the

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complaint. At the outset, the judge found Garfield had met its burden to show

the project did not negatively impact the master plan and was not contrary to the

zoning ordinance. She noted plaintiffs' expert relied on a map dating to 1912,

which purported to show the character of the property and the surrounding

neighborhood and that Garfield's lots had been unimproved. However, Garfield

proved the lots were previously occupied by two four-story multi-family

dwellings, one of which contained eight units and the other nine.

The judge also noted the Board addressed and made findings regarding

the positive criteria when it

cited to the record and found that the development of
the property would promote the general welfare by
transforming vacant lots that had been attracting trash
and drug-trafficking. (Finding #34). The Board found
that the project would provide needed housing and
would meet the parking requirements. (Finding #17).
The Board also addressed the notion that the project
would address environmental concerns such a water
runoff and detention. (Finding #17). The Board cited
favorable findings on population density and
concentration. (Finding #37). The Board cited with
favor the ADA-compliant units and outdoor community
space. (Finding #35).

In addition to these general findings, as to the
issue of "particular suitability," the Board found that
because each of the single lots is undersized, any
development of any one of the lots would inevitably
require Board action in the future. The merger of the
three lots, and the proposed project design being

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 entirely residential, would not offend the master plan or
the zoning ordinance, especially since there had been
two multi-family buildings on the site previously. This
precedent as well as the fact that the newly proposed
project would have off-street parking was of particular
note regarding site suitability.

The judge found the Board also addressed the negative criteria. She noted

the Board made specific findings regarding lack of
detrimental impact on public welfare (Finding #38) and
lack of detrimental impact on the master plan and
zoning ordinance (Finding #39[ ]and #40). Nine
specific notations were made in the record to aspects of
the project that either affirmative[ly] promote or are not
a detriment to the general welfare. . . .

It cannot be said that [Garfield] did not address
the issues. Nor can it be said that the Board was derelict
in their duty to canvass the proofs, cite to the record and
make specific findings on the positive and negative
criteria. As such, this court finds that [Garfield] met its
burden of proof and that the Board did not act
arbitrarily or capriciously in approving the (d)(1)
variance.

The judge rejected plaintiffs' argument the lack of a (c) variance was fatal

to Garfield's application. She noted

[i]t is . . . well settled that . . . the (c)(2) variance(s)
become "subsumed" in the (d)(1) variance application.
While the Board may not ignore the (c)(2) bulk
variances, when they are considered in conjunction
with (d)(1) variances, they may be considered as
ancillary to the [principal] relief sought. Price [v.
Himeji, LLC, 214 N.J. 263, 301 (2013).]

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The judge concluded as follows: "In this case, this very issue is addressed

specifically in findings #10[2] and #24. These findings are fully supported by

the ample record and nothing therein can be deemed arbitrary or capricious."

The judge rejected plaintiffs' argument regarding the building's effects on

the parking conditions in the neighborhood. She found "[t]he prevailing

ordinance in Jersey City requires one parking space per unit. Here, [Garfield]

planned for [twelve] spaces for [twelve] units."

The judge also rejected plaintiffs' argument Garfield's experts had offered

a net opinion. She noted the lack of a shadow study was not grounds to exclude

the expert testimony presented on Garfield's behalf, but rather "goes to the

weight to be accorded [to] the experts' testimony." The judge noted "the height

issue was but one of many considered as part of the bulk variance analysis." The

judge found plaintiffs' arguments the Board had improperly delegated its

2
This finding read as follows:

10. The [a]pplicant is proposing four . . . stories when
three . . . stories are permitted. Additionally, the
[a]pplicant is proposing a twelve . . . unit multi-family
building, which is not a permitted use in the R-1 Zone.
There is one . . . "C" variance required for compact
spaces. Additionally, while subsumed under the use
variance, there are nonconformities based on R-1 bulk
standards.
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decision-making duties to the experts and the claim of inadequate notice for the

hearing "not worthy of further discussion."

The judge concluded as follows:

Applicant deftly pointed out that prior development on
the site was denser and did not conform to parking
requirements whereas this project was less dense and
provided necessary parking. This goes directly to the
required showing of why the proposed use can be
reconciled with the prevailing ordinance.

As many as four meetings were held prior to the
hearings wherein the parties negotiated the height of the
building and changes were made to the design. This
disposes of the argument by [plaintiffs] now that the
Board did not [assess] the height deviation. The
precedent of the prior development adequate[ly]
addresses the "particular suitability" standard.

The presumption of validity of the decision of the
Board has not been rebutted in this case. There was no
density requirement to address or comply with. This
project and the parking plan inherent in it will not
impact the street parking at all. The Board did not
ignore the (c)(2) variances. They were identified and
reviewed by the Board within the context of their
consideration of the (d)(1) use variance. For these
reasons, the resolution of the Board is found to be free
of any arbitrary or capricious characteristics.

On appeal, plaintiffs raise the following points:

POINT I:

THE COURT COMMITTED REVERSIBLE ERROR
BY UPHOLDING THE BOARD'S ERRONEOUS

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DETERMINATION THAT THE APPLICANT
SATISFIED THE POSITIVE AND NEGATIVE
CRITERIA REQUIRED FOR A USE VARIANCE
UNDER N.J.S.A. 40:55D-70(d)(1).

POINT II:

THE COURT BELOW COMMITTED REVERSIBLE
ERROR BY:

(a) holding no density standard exists despite the
fact all parties had concurred that a standard
exists; and

(b) failing to the invalidate the Resolution for
failure to grant a density variance under N.J.S.A.
40:55D-70(d)(5).

POINT III:

THE COURT BELOW COMMITTED REVERSIBLE
ERROR BY CONSIDERING THE HEIGHT
VARIANCE TO HAVE BEEN SUBSUMED INTO
THE USE VARIANCE, AND BY DECLINING TO
ADDRESS THE BOARD'S ARBITRARY AND
CAPRICIOUS ADOPTION OF THE HEIGHT
VARIANCE.

POINT IV:

THE COURT COMMITTED REVERSIBLE ERROR
BY APPLYING A LOCAL ORDINANCE SETTING
MINIMUM PARKING STANDARDS THAT ARE
SUPERSEDED BY MORE STRINGENT
REQUIREMENTS UNDER THE RESIDENTIAL
SITE IMPROVEMENT STANDARDS AND NEW
JERSEY LAW.

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 POINT V:

THE COURT BELOW COMMITTED REVERSIBLE
ERROR BY DECLINING TO ADDRESS THE MANY
EGREGIOUS DEFICIENCIES IN THE
APPLICANT'S PUBLIC NOTICE THAT DEPRIVED
THE BOARD OF JURISDICTION TO HEAR THE
APPLICATION, AND THE BOARD'S
IMPERMISSIBLE DELEGATION OF ITS DUTIES
AS TO THE APPROVAL OF CRITICAL ELEMENTS
OF THE DEVELOPMENT PLAN.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are bound by the same standards as was the trial court."

Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562

(App. Div. 2004). Thus, our review of the Board's action is limited. Bressman

v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by

the same scope of review as the Law Division and should defer to the local land-

use agency's broad discretion).

In reviewing a municipal zoning board's decision, courts must be mindful

that the Legislature vested these boards with the discretion to make decisions

that reflect the character and level of development within their municipality.

Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967). A

planning board's discretionary decisions carry a rebuttable presumption of

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validity. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362,

368 (1970).

It is well-established that "a decision of a zoning board may be set aside

only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v.

Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting

Medici, 107 N.J. at 15). "[P]ublic bodies, because of their peculiar knowledge

of local conditions, must be allowed wide latitude in their delegated discretion."

Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 597 (2005).

Therefore, "[t]he proper scope of judicial review is not to suggest a decision that

may be better than the one made by the board, but to determine whether the

board could reasonably have reached its decision on the record." Ibid.

The burden is on the challenging party to overcome this highly deferential

standard of review. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of

Adjustment, 152 N.J. 309, 327 (1998). A court must not substitute its own

judgment for that of the local board unless there is a clear abuse of discretion.

See Cell S., 172 N.J. at 82. As we stated in CBS Outdoor, Inc. v. Borough of

Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010), "[e]ven were we

to harbor reservations as to the good judgment of a local land use agency's

decision, 'there can be no judicial declaration of invalidity in the absence of clear

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abuse of discretion by the public agencies involved.'" (quoting Kramer v. Bd. of

Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965)).

Applying these standards, we discern no basis to disturb the Board's

reasoned decision to approve Garfield's application and the variances. The

Board's decision is clearly supported by sufficient credible evidence in the

record and is not arbitrary, capricious, or unreasonable. Plaintiffs' arguments

are without sufficient merit to warrant further discussion in a written opinion .

R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in the

Board's lengthy resolution and Judge Costello's cogent decision.

Affirmed.

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