1 MEMORIAL DRIVE LLC VS. 160 WEST BROADWAY ASSOCIATES, LP RIVERVIEW TOWERS I, LLC VS. 160 WEST BROADWAY ASSOCIATES, LP (L-3874-17 AND L-3935-17, PASSAIC COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0511-19
A-0636-19
1 MEMORIAL DRIVE LLC,
Plaintiff-Appellant,
v.
160 WEST BROADWAY
ASSOCIATES, LP, and
PATERSON PLANNING BOARD,
Defendants-Respondents.
______________________________
RIVERVIEW TOWERS I, LLC and
RIVERVIEW TOWERS II, LLC,
Plaintiffs-Appellants,
v.
160 WEST BROADWAY
ASSOCIATES, LP, CITY OF
PATERSON PLANNING
BOARD and 1 MEMORIAL
DRIVE, LLC,
Defendants-Respondents.
______________________________
Argued May 17, 2021 – Decided August 13, 2021
Before Judges Hoffman, Suter and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Docket Nos. L-3874-
17 and L-3935-17.
Justin D. Santagata argued the cause for appellant 1
Memorial Drive, LLC, in A-0511-19 (Kaufman
Semeraro & Leibman, LLP, attorneys; Justin D.
Santagata, on the brief).
Ira E. Weiner argued the cause for appellants
Riverview Tower I, LLC, and Riverview Tower II,
LLC, in A-0636-19 (Beattie Padovano, LLC,
attorneys; Ira E. Weiner, of counsel and on the briefs).
John M. Carbone argued the cause for respondent 160
West Broadway Associates, LP, (Carbone and Faasse,
attorneys; John M. Carbone, on the brief).
Alfred V. Acquaviva argued the cause for respondent
City of Paterson Planning Board Board.
PER CURIAM
In this consolidated appeal, plaintiff 1 Memorial Drive, LLC
(Memorial), and plaintiffs Riverview Towers I, LLC, and Riverview Towers
II, LLC (Riverview Towers), appeal from the September 5, 2019 Law Division
judgment affirming the decision of the City of Paterson Planning Board (the
Board), which granted the site plan application of defendant 160 West
Broadway Associates, LLC (160 West). The application proposed to expand
A-0511-19
2
and improve a supermarket site, which had been vacant for five years, by
converting approximately 7,000 square feet of storage space into retail space.
On appeal, plaintiffs contend the Board adopted a legally deficient
resolution, which contained insufficient findings of fact and conclusions of
law. In addition, they assert the Board inappropriately relied on the report of
its planner and failed to properly reconcile conflicting expert testimony
regarding the plan's traffic circulation pattern.
Based on our review, the record does not support the Law Division
judge's "finding that [the Board] did not act arbitrarily, capriciously, or
unreasonably in approving the application." The Board's memorializing
resolution approved a truck circulation pattern that would violate the New
Jersey Motor Vehicle Code (the MV Code); in addition, the resolution failed to
set forth adequate findings to support the Board's decision. We therefore
reverse.
I.
On June 30, 2017, 160 West applied for preliminary and final site -plan
approvals, with variances, to renovate, expand, and re-occupy retail space (the
supermarket) located in its strip mall on West Broadway in Paterson. 160
West Broadway (the property) lies on the north side of County Road 673,
A-0511-19
3
bounded on the west by Cliff Street and on the north by Christopher Columbus
Drive/Northwest Street. Located near four high-rise residential apartment
buildings called the Riverview Towers, the property measures 1.61 acres in a
trapezoidal shape. The property contains an existing retail strip-mall
composed of six units, the largest of which was last used as a supermarket,
occupying almost 18,000 square feet of the mall.
The property is in Paterson's First Ward Redevelopment Area in the C -2
general commercial district. The First Ward Redevelopment Plan (the
Redevelopment Plan) supersedes all use, bulk and design standards in the
Paterson zoning ordinance and governs the development of the property. The
Redevelopment Plan states that "any deviation from standards of this Plan that
results in a 'd' variance pursuant to N.J.S.A. 40:55D-70d shall be addressed as
an amendment to the Plan rather than via variance relief through the Paterson
Zoning Board of Adjustment."
In June 2017, 160 West, as owner/landlord, applied for preliminary and
final site plan approvals and "c" bulk variances (the application) for a tenant
fit-out for the back warehouse section of the property. The application
proposed to expand the existing supermarket to occupy 24,731 square feet of
A-0511-19
4
floor area by converting 6,702 square feet of warehouse space previously used
for storage.
The application presented three circulation plans on how the trucks
would enter and exit the property. The first circulation plan depicted a truck
entering from the north and traveling south. The truck would have to stop on
West Broadway near Cliff Street, wait for an opening in traffic, and then make
a left turn into an exit-only driveway (at the north end of the property), cross
parts of two parking spaces, continue halfway down the front o f the building,
and then maneuver in reverse over three parking spaces to access the loading
dock on the northeast side of the building.
The second circulation plan considered a tractor-trailer proceeding north
on West Broadway, passing the exit-only driveway at the north end of the
property, stopping and then backing-up on West Broadway and blocking both
lanes of traffic while maneuvering in reverse on West Broadway and backing
into the site through an exit driveway to access the loading dock.
The third circulation plan depicted a tractor-trailer heading north on
West Broadway, maneuvering into and blocking oncoming traffic, and
swinging into the access driveway's exit at the north end of the property. The
truck would need to make many forward-reverse maneuvers in the parking lot
A-0511-19
5
to back into the loading dock without reentering traffic on West Broadway.
This plan would traverse three parking spaces and would impact the City
sidewalk and public right-of-way at the corner of Cliff Street and West
Broadway.
Hongchao Yu, Patterson's city engineer, evaluated the circulation plans
and traffic diagram. In an August 1, 2017 email to the Board's planner,
Michael Deutsch, Yu wrote that the circulation plan would create "severe
adverse impact" on both traffic safety and mobility. The email stated:
At your request, I reviewed the provided plan for the
above project. In reviewing the particular Truck
Circulation Plan, the design truck WB-50 is designed
to completely occupy and block West Broadway when
maneuvering into its loading dock. To consider that
West Broadway is a major arterial road and one of
[the] busiest roads so that severe adverse impact on
both traffic and safety and mobility is obviously
predicted, I cannot be in support of the design. In
addition, since West Broadway is also a County Road,
I don't think the County will approve it either.
FYI, the provided Truck Circulation Plan is not
correctly scaled.
Deutsch concurred with Yu's opinion that the truck circulation plan was
unsafe.
The Board identified three variances necessary for 160 West's
application: 1) a front yard setback 49.9 feet from West Broadway, when only
A-0511-19
6
five feet was permitted; 2) parking spaces eight feet six inches wide, when
nine feet was required; and 3) no curbed landscaping island, equal to at least
five percent of the parking area, where a parking lot contains over twenty-five
parking spaces.1
On September 6, 2017, at the first Board hearing on the application, 160
West presented three witnesses: Calisto Bertin (an engineering expert), VJ
Aynilian2 (a property manager), and Brigette Bogart 3 (a professional planner).
1
Examination of the Redevelopment Plan indicates the application required at
least three more variances, including: a) "no building must front a parking lot
either visually or physically"; b) "the façade of the commercial street shall be
made permeable"; and c) chain link fences are prohibited around parking lots.
In fact, as we discuss later in this opinion, Riverview Towers contends the
application required twelve more variances.
2
The commercial property manager for VAP International (VAP), Aynilian
testified that he managed the day-to-day operations of a commercial portfolio
that included the property. He explained that VAP purchased the property in
the early '90s and that the supermarket "has always been a supermarket." The
proposed expanded supermarket, if approved, would hopefully "act as the
anchor for the shopping center and . . . attract more satellite stores . . . ."
3
Accepted as a planning expert, Bogart explained that the application
involved "a lawfully existing site, . . . a lawfully existing building, and . . .
permitted uses"; additionally, the application abided by "the most recent 2015
resolution of approval by the Planning Board." In her professional opinion,
the project provided planning benefits, "because you're in a redevelopment
area. You don't want to have a building sit [and] lie vacant, you want
economic viability . . . ."
A-0511-19
7
Bertin testified that he was involved in the preparation of the site plan
that was originally dated August 25, 2016, and last revised on August 25,
2017. He explained improvements had been made to the previously-approved
plan, including moving the parking away from the sidewalk, replacing the
entire sidewalk and curb on West Broadway, replacing the driveway, and
improving the drainage. Bertin explained that the applicant planned to re-
stripe the parking lot and put in stop signs. By restriping the parking lot, the
applicant would increase the number of spaces by one or two in the back right
corner, because the spaces were only eight-and-a-half feet wide.
Bertin stated that the approval obtained back in December 2015 was
conditioned on obtaining "County site plan approval." This approval was
conditioned on the truck maneuvering on the property. He explained:
What the County approved was that a truck would
back into the site from West Broadway and there's an
agreement that's been processed with the County. The
County actually has some procedures for I think it's
called short-term road closures. These are closures of
just a couple of minutes where there's a requirement to
have flaggers and people direct traffic to allow the
truck to back into the site. And there's a strict
procedure and that's been agreed to by the County.
When asked if it was legal to have commercial vehicles back up on West
Broadway to enter the property, Bertin responded "yes," noting that "the
A-0511-19
8
County approved it and as far as I know[,] under those conditions[,] it's legal."
He stated that he did not know if the new operator of the supermarket would
restrict deliveries to only straight trucks and not tractor-trailers. When asked
if there was enough space on the site to perform the truck maneuver, he
responded:
The problem is that if a truck were to come in
say from the easterly driveway by the car wash, there's
no way he can pull up far enough to back in. If he
were to pull in the driveway and back up – again,
there's not enough real estate. I guess if we excavated
along Cliff Street, we might be able to get them to
maneuver a couple of times, but there's not enough
room on this site for a truck to pull up and back in.
Usually we leave from the loading dock out a hundred
feet for a truck to make the maneuver. Unfortunately,
we don't have it.
Bertin admitted that the delivery trucks would have to back into the property in
the middle of traffic on West Broadway, with the help of flaggers. Upon
hearing this response, two Board commissioners expressed safety concerns.
160 West concluded its testimony at the September 6, 2017 hearing
without presenting any expert testimony on its truck circulation plan and gave
no indication it expected to present such testimony to the Board. When some
Board members appeared uncomfortable with the truck circulation plan,
counsel for 160 West requested the opportunity to "come back on the 27th" –
A-0511-19
9
at that time, "I'll come back with an amended plan or I'll come back with a
reason why I can't do an amended plan . . . ."
On September 27, 2017, 160 West returned to the Board. Rather than an
amended plan, 160 West appeared with a traffic expert, without any prior
notice. As a result, Riverview Towers' attorney objected and requested the
Board require the expert to submit a report and grant Riverview Towers an
opportunity to provide rebuttal expert testimony. The Board denied the
request.
The Board then heard the testimony of 160 West's expert, Joseph
Staigar, after recognizing him as a traffic expert. Staigar explained that he
focused his review on "the deliveries and how the deliveries would take place,
what the frequency is, and again how it would be actually facilitated by the
site." Deliveries could "arrive at the site on a frequency of up to maybe ten
times a day[,]" with most deliveries coming from "box trucks and the step
vans" and would stay "completely contained within the site."
Staigar testified there would also be tractor-trailer deliveries to the site;
however, those deliveries would be less frequent, zero to a maximum of two
per day. There would be two sizes of tractor-trailers delivering to the site:
A-0511-19
10
WB-40s and WB-50s. 4 Deliveries involving WB-50s, which would be very
infrequent (at most once a day), would have to back into the site from the
northerly driveway, and would involve a "flagger" to control traffic. He
explained:
I've watched traffic on West Broadway and the
ability to make those maneuvers can be made. Clear
visibility. Alignment of the roadway is straight and
rather flat in the area. So again, with the precautions
that will be mandated as a condition of our approval
with the County and could be put into a condition here
with the Planning Board, it'll be a safe and efficient
access for delivery trucks.
Staigar did not think the truck circulation maneuvers were unsafe and
stated that if these types of maneuvers were prohibited, "you're going to find
vacant pieces of property if you don't allow for these types of deliveries." He
added that his testimony on the frequencies of the deliveries was based entirely
upon his discussions with the property owner. He also said that the operator of
the supermarket would supply the flaggers; if the operator did not, there would
be no flaggers. He did not know how that requirement would be enforced.
Staigar disagreed with the plans provided by the Board's traffic engineer
that showed tractor-trailers would have to cross the opposite lane of traffic to
4
According to Staigar, "The WB[-]40 stands for [a] wheelbase 40 feet from
the front axle to the center of the two rear axles[,]" and a WB-50 stands for a
wheelbase fifty feet from the front axle to the center of the two rear axles.
A-0511-19
11
back into the property. He stated, "I analyzed it myself and it does not have to
cross. It may cross that centerline, the physical centerline of the road, but not
into the opposing lane."
After Staigar completed his testimony, counsel for Riverview Towers
renewed his request to present a rebuttal traffic expert because he received no
notice that 160 West was going to present additional expert testimony. The
Board ignored this request and voted four to two to approve 160 West's
application. On October 19, 2017, the Board adopted a resolution
memorializing approval of 160 West's application. That resolution was
contingent upon "the applicant providing traffic control in the form of a
'flagger' to control incoming and outgoing tractor-trailer deliveries," and "the
prohibition of all deliveries made by WB-50 tractor-trailers between the hours
of 7:00 a.m. and 9:00 a.m. and 3:00 p.m. and 5:00 p.m."
On October 5, 2018, after plaintiffs filed complaints in lieu of
prerogative writs challenging the Board's approval, the trial court remanded
the matter to the Board to "supplement and clarify the record." The remand
order specifically provided that "[t]he remand will be limited to permit
[p]laintiffs to present expert testimony on the traffic issue only." The court's
accompanying "Statement of Reasons" explained, "The Board deprived . . .
A-0511-19
12
[p]laintiff[s] a fair opportunity to present a traffic expert. . . . The additional
traffic information is necessary to assist the Board in making a fully informed
decision on this pivotal issue and to complete the record for review on appeal."
On December 19, 2018, the Board held the remand hearing and heard the
testimony of Riverview Towers' expert, Gary Dean, a traffic engineer.5
Dean testified that he was asked to take a particular interest in the access
to this property for trucks and deliveries for the proposed supermarket. His
review focused on truck circulation and the method of operation as presented
in terms of accommodating all sizes of trucks that would deliver to a
supermarket tenant. He prepared a written study, dated October 30, 2018.
Dean reviewed the available maps and aerial photography, visited the
property, and reviewed the plans as a desktop exercise. He found the proposed
truck circulation plan was not a viable option for the property. "The proposed
circulation either creates safety [concerns] with movements on the public street
or it conflicts with vehicles on the site itself." According to Dean, the site
plan, proposed "to alter the driveways from how they were originally
5
Five days before the remand hearing, 160 West submitted a supplemental
traffic report prepared by Staigar. Between the submission of the
supplemental traffic report and the remand hearing, the trial court held a
telephone conference and ruled that 160 West could not submit the report.
Notwithstanding the court's ruling and the clear limits of the remand order,
Staigar's supplemental traffic report was inexplicably distributed to the Board.
A-0511-19
13
approved. And by that, the applicant propose[d] to make the easterly driveway
both in and out and to also narrow the driveway, and also to narrow the exit
only driveway at the westerly end of the site nearest Cliff Street."
Dean's major concern with the proposed truck circulation plan was the
use of tractor-trailers, which would need to back into the site, obstructing all
westbound traffic and blocking all lanes of traffic on West Broadway. In his
opinion, "that is neither safe nor efficient." "It's not appropriate for trucks to
be backing on a public street into private property and . . . it's contrary to a
driver's expectation[,]" in addition to "be[ing] inherently unsafe[,] . . . . such a
practice actually violates the law[,]" specifically N.J.S.A. 39:4-56 and N.J.S.A.
39:4-67.
Dean testified that the proposed use of "flaggers" to control traffic while
the tractor-trailer maneuvers into the property was not feasible – "the problem
with that practice is that's not allowed in New Jersey." He explained that there
are only three categories of "people who are sanctioned under the motor
vehicle [C]ode to lawfully direct traffic": law enforcement officers, crossing
guards (who are essentially deputized as part of the police department), and
construction flaggers in a "work zone." "None of those conditions would exist
for this practice of essentially having a civilian come from the store or exit the
A-0511-19
14
truck to stop and hope that traffic yields to the truck that needs to back up on
the street." Furthermore, he believed that this maneuver would require two or
more flaggers.
Dean also questioned the size of the box truck that 160 West indicated
would use the site. Dean's exhibit depicted a single-unit, forty-foot box truck,
the same size as refrigerated trucks commonly used to deliver produce or meat
to supermarkets. 160 West's presentation, however, depicted a thirty-foot
truck, with a smaller wheelbase.
Dean explained that to enter the site westbound on West Broadway,
[t]he first thing the truck has to do . . . is cross the
centerline, a conflict with eastbound traffic. . . . The
truck then turns right and comes into the driveway.
And . . . because the driveway was being narrowed,
the truck swings across the exit lane of the driveway.
So if there's a car trying to leave while this beverage
truck or delivery truck arrives, he's stuck on the street.
He has to wait for the car to clear. That impedes
traffic.
Dean further explained that once the truck makes the initial right-hand turn, if
there is a car parked in the first angled parking space, the truck would not fit;
when the truck exits, if it turns left, there is no problem; but if it turns right, it
will swing into the oncoming lane of traffic traveling east on West Broadway,
"which in my opinion means the site has not been properly designed to
A-0511-19
15
accommodate what I think is a very common and typical truck that would
deliver to a supermarket."
Dean said that the applicant had "conceded that a tractor-trailer simply
can't circulate without having to back up on a public street." A typical tractor-
trailer is fifty-three feet long, but the applicant depicted a tractor-trailer that
was only forty-eight feet, meaning it was more maneuverable. There was a
"logical expectation" that this site would get deliveries using fifty-three-foot
tractor-trailers, which made all of the circulation depicted on various plans by
the applicant even more problematic.
Dean concluded:
So in my opinion, reviewing this with an eye toward
nothing more than public safety, I've concluded that
this is not a viable plan. The practice as was
presented violates several statutes in terms of motor
vehicle flow, it would be contrary to a driver's
expectation, and I think presents a public hazard to
which this Board would be a part should you approve
the plan as presented.
Nevertheless, Dean acknowledged that the traffic pattern that he was
criticizing had been approved by the County Planning Board, but only with
flaggers.
The Board questioned Dean about the fact that it proposed to restrict the
time of deliveries (between 7:00 a.m. and 9:00 a.m., and 3:00 p.m. and 5:00
A-0511-19
16
p.m.), and the testimony that there would be no more than two tractor-trailer
deliveries per day. Dean responded that traffic was essentially the same just
outside of "peak hours." Additionally, he testified that "safety is . . .binary; it
either works or it doesn't[,]" regardless of how many deliveries were expected.
"[I]t needs to be a safe operation irrespective of the frequency. That's my
opinion."
Dean questioned how the operator of the supermarket could limit any
particular vendor's delivery times; in addition he noted that the Board did not
have any testimony from the proposed operator, so it really did not have
evidence about the delivery frequency or the size of potential delivery trucks,
or whether the operator could comply with the "flagger" requirement. Dean
further explained that smaller trucks – not just tractor and trailers – would
have serious problems maneuvering inside the property.
After hearing Dean's testimony, the Board again voted to approve 160
West's application. Many of the Board members commented on the purported
need for a supermarket in the area in supporting approval of the application.
The resolution, adopted by the Board on March 6, 2019, was contingent upon
"the applicant providing traffic control in the form of a 'flagger' to control
incoming and outgoing tractor-trailer deliveries;" and "the prohibition of all
A-0511-19
17
deliveries made by WB-50 tractor-trailers between the hours of 7:00 a.m. and
9:00 a.m. and 3:00 p.m. and 5:00 p.m."
On September 5, 2019, the trial court affirmed the Board's approval. In
a written opinion, the trial court acknowledged that the proposed traffic
circulation plan was "not necessarily . . . the most feasible or logical one." In
addressing plaintiffs' argument that the proposed traffic circulation plan would
violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67, the court stated that the traffic
plan approved by the Board "has yet to violate [these] statutes. One cannot be
charged or be found guilty of a motor vehicle offense without actually
committing the act." This appeal followed.
II.
The decision of a municipal zoning board is entitled to substantial
deference. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).
This deferential standard is the same for both trial and appellate courts.
Bressman v. Gash, 131 N.J. 517, 529 (1993). Due to their "peculiar
knowledge of local conditions," municipal boards are afforded wide latitude in
the exercise of their delegated discretion. Pierce Ests. Corp. v. Bridgewater
Twp. Zoning Bd., 303 N.J. Super. 507, 514 (App. Div. 1997). Courts
reviewing a municipal board's action on zoning applications are limited to
A-0511-19
18
determining whether the board's decision was arbitrary, capricious, or
unreasonable. Bressman, 131 N.J. at 529; Med. Ctr. at Princeton v. Princeton
Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001). "However, because
the interpretation of a statute or ordinance presents essentially a legal issue,
conclusions of a municipal board on matters of statutory interpretation are not
entitled to any particular deference." N.Y. SMSA v. Bd. of Adjustment, 370
N.J. Super. 319, 331 (App. Div. 2004).
The Board's Resolution
Plaintiffs contend that the Board's resolution was legally deficient
because it contained insufficient findings of fact and conclusions of law. They
argue that the resolution must contain adequate independent findings of fact
and conclusions of law and cannot merely rely on the Board planner's report;
in addition, they contend the Board failed to properly reconcile the conflicting
expert testimony regarding the traffic circulation pattern. We agree.
Based on our review, the trial court erred by affirming the Board's
resolution because the resolution was inadequate as a matter of law. At a
minimum, the legal insufficiency of the resolution would warrant a remand to
the Board for reconsideration and specific factual findings. N.Y. SMSA, 370
N.J. Super. at 332-33. However, because the record demonstrates that the
A-0511-19
19
Board's approval of 160 West's application was arbitrary, capricious, and
unreasonable, compelling a reversal of the Board's actions, we decline to
remand for reconsideration and specific factual findings.
a. Findings of Fact — Testimony
Riverview Towers argue that the Board's resolution must contain
adequate independent findings of fact and conclusions of law, and cannot
merely rely on the Board planner's report. According to Riverview Towers,
"With only a few minor departures, the Board's resolution is lifted word-for-
word from the Board planner's report. . . . The only differences between the
resolution and Deutsch's recitation of his report in the record, are where [the
Board's planner] made comments that would negatively affect the application."
Riverview Towers' argument has merit.
A land use board's decision regarding the relief requested by an
applicant must be embodied in the form of a written resolution, which includes
findings of fact and conclusions of law. Id. at 332; N.J.S.A. 40:55D-10(g).
The requirement of a memorializing resolution is set forth in N.J.S.A. 40:55D-
10(g), which provides:
The municipal agency shall include findings of fact
and conclusions based thereon in each decision on any
application for development and shall reduce the
A-0511-19
20
decision to writing. The municipal agency shall
provide the findings and conclusions through:
(1) A resolution adopted at a meeting held within the
time period provided in the act for action by the
municipal agency on the application for development;
or
(2) A memorializing resolution adopted at a meeting
held not later than 45 days after the date of the
meeting at which the municipal agency voted to grant
or deny approval. . . . If the municipal agency fails to
adopt a resolution or memorializing resolution as
hereinabove specified, any interested party may apply
to the Superior Court in a summary manner for an
order compelling the municipal agency to reduce its
findings and conclusions to writing within a stated
time, and the cost of the application, including
attorney's fees, shall be assessed against the
municipality.
In order to satisfy this requirement:
The factual findings set forth in a resolution cannot
consist of a mere recital of testimony or conclusory
statements couched in statutory language. Rather, the
resolution must contain sufficient findings, based on
the proofs submitted, to satisfy a reviewing court that
the board has analyzed the applicant's variance request
in accordance with the statute and in light of the
municipality's master plan and zoning ordinance.
Without such findings of fact and conclusions of law,
the reviewing court has no way of knowing the basis
of the board's decision.
[Id. at 332-33 (citations omitted).]
A-0511-19
21
In Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 123
(App. Div. 2000), where the zoning board granted the applicant a dimensional
bulk variance, we found the board's resolution to be "woefully inadequate."
The resolution did not specify whether the variance was granted because of
undue hardship caused by the unique condition of the land or structure, or
because it afforded an opportunity for improved zoning and planning. Ibid.Nor did it describe or specify the unique condition of the property or structure
resulting in undue hardship under (c)(1) or for improved zoning under (c)(2).
Ibid. "The Zoning Board's enigmatic reference to 'providing additional space,'
as an appropriate zoning objective, was far too nebulous a finding upon which
to ground the grant of a (c)(1) or (2) variance." Ibid. As a result, we reversed
the variance approval. Ibid.Here, with only a few minor departures, paragraphs one through twenty-
three of the resolution are a verbatim recitation of the planner's report. At the
hearing on September 6, 2017, Deutsch read a significant portion of his report
into the record, and the resolution includes most of what he read, except for
the portions of his report that would have negatively affected the application.
A review of the resolution establishes that the Board made no
independent findings of fact. While the "[w]hereas" clauses set forth who
A-0511-19
22
testified at the hearings – Bertin (engineer expert), Aynilian (property
manager), Bogart (professional planner), Staigar (160 West's traffic expert),
and Dean (Riverview Towers' traffic expert) – the resolution contained no
summary of their testimony, made no specific findings of fact as to any of their
testimony, and made no specific findings of credibility as to any of the
witnesses. We conclude the Board made insufficient findings of fact to satisfy
the requirements of N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super. at 332-
33.
b. Finding of Facts and Conclusions of Law – Conflicting Expert
Testimony
Based upon our review of the record, the Board failed to properly
reconcile the conflicting expert testimony on traffic circulation.
Zoning boards may choose which witnesses, including expert witnesses,
to believe. El Shaer v. Plan. Bd., 249 N.J. Super. 323, 329 (App. Div. 1991).
Although a board "is not bound to accept the testimony of the expert, its
determination must be made on a rational and reasonable basis." Reich v. Fort
Lee Zoning Bd., 414 N.J. Super. 483, 504-05 (App. Div. 2010). Indeed, to be
binding on appeal, that choice must be reasonably made. Kramer, 45 N.J. at
288. Further, "the choice must be explained, particularly where the board
A-0511-19
23
rejects the testimony of facially reasonable witnesses." Bd. of Educ. v. Zoning
Bd., 409 N.J. Super. 389, 434-35 (App. Div. 2009).
As noted, aside from identifying the experts who testified at the
hearings, the resolution did not summarize their testimony and made no
credibility determinations. Staigar's testimony stands in direct conflict with
Dean's testimony, and the opinions of the Board's planner and Paterson's city
engineer. The Board did not resolve the conflicting testimony. The
resolution did not specifically reject Dean's testimony, nor did it state that
Staigar's testimony was more persuasive. It also did not attempt to reconcile
the conflicting testimony; instead, it merely made conclusory statement s such
as "[t]he applicant has provided testimony to the Board's satisfaction with
regard to these issues[,]" without explaining what testimony it relied upon to
approve the application, or why. While the approval of the application
indicates the Board chose to accept Staigar's opinion over Dean's opinion, it is
not clear why it chose to do so. Because the Board did not explain its choice,
Bd. of Educ., 409 N.J. Super. at 434-35, it made insufficient findings of fact to
satisfy the requirements of N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super.
at 332-33.
c. Finding of Facts and Conclusions of Law – Variance Application
A-0511-19
24
An applicant for a variance "bears the burden of producing a
preponderance of competent and credible evidence" to satisfy "the statutory
prerequisites for a variance, a burden which applies to both the positive and
negative criteria." Menlo Park Plaza Assocs. v. Plan. Bd., 316 N.J. Super. 451,
461 (App. Div. 1998). However, judicial review of the decision of a planning
board to grant or deny a variance is limited. Bressman, 131 N.J. at 529. "A
board's decision 'is presumptively valid, and is reversible only if arbitrary,
capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of
Adj., 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj., 127 N.J. 152, 166-
67 (1992)). We defer to the board's decision "if it is supported by the record
and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of
discretion." Ibid.This deferential standard of review stems from the discretion vested in
local bodies by the Legislature, and the recognition that local officials who are
familiar with their community's characteristics and interests are best equipped
to assess the merits of an application for development. Med. Ctr. at Princeton,
343 N.J. Super. at 198. Because of their particular knowledge of local
conditions, planning boards must be allowed wide latitude in the exercise of
their delegated discretion. Kramer, 45 N.J. at 296. Therefore, "courts
A-0511-19
25
ordinarily should not disturb the discretionary decisions of local boards that
are supported by substantial evidence in the record and reflect a correct
application of the relevant principles of land use law." Lang v. Zoning Bd. of
Adjustment, 160 N.J. 41, 58-59 (1999).
160 West sought a variance pursuant to N.J.S.A. 40:55D-70(c)(1) and
(c)(2). To obtain a "hardship" variance under N.J.S.A. 40:55D-70(c)(1), an
applicant must establish the following "positive" criteria:
Where: (a) by reason of exceptional narrowness,
shallowness or shape of a specific piece of property,
or (b) by reason of exceptional topographic conditions
or physical features uniquely affecting a specific piece
of property, or (c) by reason of an extraordinary and
exceptional situation uniquely affecting a specific
piece of property or the structures lawfully existing
thereon, the strict application of any regulation
pursuant to article 8 of this act would result in peculiar
and exceptional practical difficulties to, or exceptional
and undue hardship upon, the developer of such
property ....
In addition to demonstrating the above "positive" criteria, N.J.S.A.
40:55D-70 requires an applicant for any variance to demonstrate the following
"negative" criteria:
No variance or other relief may be granted under the
terms of this section . . . without a showing that such
variance or other relief can be granted without
substantial detriment to the public good and will not
A-0511-19
26
substantially impair the intent and the purpose of the
zone plan and zoning ordinance.
To obtain a "flexible" variance under N.J.S.A. 40:55D-70(c)(2), an
applicant must establish the negative criteria, set forth above, and the
following positive criteria:
[W]here in an application or appeal relating to a
specific piece of property the purposes of this act . . .
would be advanced by a deviation from the zoning
ordinance requirements and the benefits of the
deviation would substantially outweigh any detriment,
grant a variance to allow departure from regulations
pursuant to article 8 of this act . . . .
The grant of relief under (c)(2) is not based on hardship. Green
Meadows at Montville, LLC v. Plan. Bd., 329 N.J. Super. 12, 22 (App. Div.
2000). Instead, it
must be rooted in the purposes of zoning and planning
itself and must advance the purposes of the [Municipal
Land Use Law]. The grant must benefit the
community in that it represents a better zoning
alternative for the property[,] and may not be granted
merely to advance the purposes of the owner. Thus,
the focus in a c(2) case is not whether the current
zoning ordinance creates a "hardship" on the owner
warranting a relaxation of the standard, but on the
characteristics of the land that present an opportunity
for improved zoning and planning that will benefit the
community.
[Ketcherick v. Mountain Lakes Bd. of Adjustment,
256 N.J. Super. 647, 657 (App. Div. 1992) (alterations
A-0511-19
27
in original) (emphasis, citations, and internal
quotations omitted).]
As previously noted, the resolution contained no summary of the
testimony presented at the hearing, made no specific findings of fact as to any
of the witnesses' testimony, and made no specific findings of credibility.
Plaintiffs claim the resolution was inadequate because it did not contain
independent findings of fact and conclusions of law, merely parroted the
planner's report, and did not explain why it determined to grant the bulk
variance. We agree.
The Board identified three variances necessary for 160 West's
application: 1) a front yard setback 49.9 feet from West Broadway, when only
five feet was permitted; 2) parking spaces of eight feet six inches wide, when
nine feet was required; and 3) no curbed landscaping island of at least five
percent of the parking area where a parking lot contains over twenty-five
parking spaces.
As to the parking spaces, the resolution provided:
The applicant has not provided floor plans or building
elevations. The on-site truck traffic circulation
indicates that of the [forty-six] off-street parking
spaces, which require a variance for being proposed at
[eight] feet [six] inches and not the required [nine]
feet, may need further reduction to account for adding
an on-site turnaround space, creating one or more cart
A-0511-19
28
corral areas and six parking spaces that the tractor-
trailer will travel over and on. Additionally, a trash
dumpster has not been located, which may take up one
or more parking spaces. The applicant has provided
testimony to the Board's satisfaction with regard to
these issues.
However, the resolution does not identify the testimony or explain how the
testimony satisfied the requirements for a variance.
As to the grant of all three variances requested, in general, the resolution
provided as follows:
24. The granting of the subject site plan application
and bulk variances will have no adverse impact
upon noise, light, air, traffic, health, or safety in
the community, nor will it impair the intent and
purpose of the Master plan.
25. The Planning Board determined that the project
will not have an adverse impact on the traffic in
the community and that the traffic will operate
safely and efficiently. The Planning Board based
this determination on the experience and
knowledge of the area of the board members and
the credibility of the applicant's experts. The
Passaic County Planning Board also issues a
conditional approval, and the main potential traffic
impacts are on West Broadway, a County road.
26. The proposed site plan and bulk variances will
have no unusual impact upon the ultimate usage of
the land.
27. Evidence presented by the applicant at the
aforementioned public hearing shows that the
A-0511-19
29
strict application of the city ordinances would
present practical difficulties and undue hardship
upon the development of this property, said
difficulties being peculiar and exceptional to this
property.
28. The applicant has further shown that the relief as
requested could be granted without substantial
detriment to the public good and said approvals
would not impair the intent and purpose of the
zoning ordinances of the City of Paterson.
29. All of the applicant's representations and
stipulations made to the Planning Board in this
application and at the said public hearing are
regarded as true and accurate. The Planning Board
has specifically relied upon the applicant's
stipulations and representations in granting this
approval. In the event that any of the applicant's
stipulations or representations are inaccurate this
approval shall be declared null and void.
As noted, the Board's resolution merely contained a conclusory
recitation of the statutory language as support for its grant of the variances. It
provided no summary of the testimony before the Board, nor did it provide an
adequate explanation as to "why" the Board found that the (c)(1) and (c)(2)
variance had been satisfied. As noted, mere conclusory recitation of the
statutory language does not satisfy a land use board's responsibility. Loscalzo
v. Pini, 228 N.J. Super. 291, 305 (App. Div. 1988). See also Morris Cnty. Fair
Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 646 (Law Div. 1988)
A-0511-19
30
(noting that resolution consisting almost entirely of quotations from experts'
reports did not fulfill board's responsibility to make findings of fact and
conclusions of law).
In addition, as in Smith, the resolution did not discuss the (c)(1) and
(c)(2) variances in any detail. Moreover, the resolution did not address the
reasons the Board found that 160 West had satisfied the positive and negative
criteria under either the (c)(1) or (c)(2) variance; therefore, effective review is
impossible. Witt v. Borough of Maywood, 328 N.J. Super. 343, 455 (App.
Div. 2000). Accordingly, we hold that the trial court erred when it affirmed
the Board's resolution because the resolution was inadequate as a matter of
law.
Violation of the MV Code
Plaintiffs contend that the Board's approval was arbitrary, capricious,
and unreasonable and should be reversed because the proposed traffic
circulation plan, which requires delivery trucks to back up and block both
lanes of traffic on West Broadway, would violate two sections of the MV
Code: N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67. According to Riverview
Towers, the trial judge's opinion "recognized the illegality of the proposed
delivery plan" and "understood the Board's decision validated illegal conduct."
A-0511-19
31
Riverview Towers argues that the Board's resolution is internally inconsistent
"because it requires compliance with all laws while simultaneously approving
the tractor-trailer delivery plan that will not comply with the State motor
vehicle laws."
Plaintiffs also argue that Tubular Serv. Corp. v. Comm'r of State
Highway Dep't of N.J., 77 N.J. Super. 556 (App. Div.), aff'd o.b., 40 N.J. 331(1963), supports their argument regarding the illegality of the traffic maneuver
the Board approved. Memorial further argues that "[t]he supposed approval of
160 West's traffic circulation proposal by the Passaic County Planning Board
does not save the Board's approval."
Appellate review of a trial court's conclusions of law is de novo, and we
do not afford special deference to its interpretation of the law or the legal
consequences that stem from its fact findings. Little v. KIA Motors Am., Inc.,
425 N.J. Super. 82, 90 (App. Div. 2012) (citing Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Zaman v. Felton, 219 N.J.
199, 216 (2014).
N.J.S.A. 39:4-56 provides: "No person shall drive or conduct a vehicle
in such condition, so constructed or so loaded, as to be likely to cause delay in
traffic or accident to man, beast or property." N.J.S.A. 39:4-67 provides:
A-0511-19
32
No vehicle or street car shall be permitted by the
owner or driver thereof to so occupy a street as to
interfere with or interrupt the passage of other street
cars or vehicles, nor shall the driver of a vehicle or
street car drive such vehicle or street car into an
intersection if preceding traffic prevents immediate
clearance of the intersection.
First, Riverview Towers argue that the proposed traffic circulation plan
would violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67, and that the trial court
"recognized the illegality of the proposed delivery plan." The trial court's
conclusion that "[i]t is clear that utilizing a WB-50 tractor-trailer as proposed
would be violative of both statues" was supported by the record. Both the
Board's planner and the City's engineer expressed concern about the safety and
legality of the traffic circulation plan, and Riverview Towers' traffic expert
specifically testified that the proposal involved illegal traffic maneuvers.
The trial court's holding that the Board did not act arbitrarily,
capriciously, or unreasonably in approving the application, knowing that
violations of the MV Code would occur, does not follow logically. As the
court acknowledged, approval of this application could result in numerous
violations of the MV Code at the property. Such violations are contrary to the
resolution, which specifically states that "[t]he applicant shall comply with all
federal, state, and county laws, rules and regulations . . . ." Thus, the Board
A-0511-19
33
acted arbitrarily, capriciously, and unreasonably when it approved an
application that would violate the MV Code and contradicts the express
language of the very resolution that approved the application. We reject the
trial court's decision to uphold the resolution based upon the fact that "[t]he
traffic plan adopted by . . . the Board has yet to violate the aforementioned
statutes."
Next, plaintiffs argue that Tubular supports reversal in this case.
Although not a land use case, we find it persuasive as it supports the argument
that the proposed traffic circulation pattern violates the MV Code. In Tubular,
the plaintiff sought a condemnation award as a result of the fact that the State
had erected a barrier on Route 1 that interfered with the ability of tractor-
trailers to access plaintiff's property. 77 N.J. Super. at 558. The court noted
that "plaintiff's case is premised upon interference with its previous unlawful
practice of bringing its inbound trailer trucks, approaching on the westerly
highway lanes, over onto the easterly or northbound lanes of the highway . . .
to maneuver the vehicles into its building." Id. at 561. It found that the
plaintiff's practice was contrary to N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67,
which prohibited the use of the opposite lane of traffic. Ibid.A-0511-19
34
The court in Tubular determined that where "the action of the State
complained of as impairing highway access to private property does not
interfere with lawful means of access but only prevents vehicular access
effected in a manner necessarily violative of reasonable highway safety
statutes, no claim of compensable taking can be founded thereon." Id. at 562.
It further noted, "[i]f plaintiff no longer has any suitable access to his property,
this should be regarded . . . as attributable not to the entirely proper action of
the [State] but to the unsuitable disposition of his facilities for his particular
commercial needs and purposes." Id. at 565.
Here, as in Tubular, the blocking of a public road to facilitate access
onto private property would violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67.
160 West's decision to expand the pre-existing building into a much larger
supermarket that would require larger tractor-trailer deliveries and failure to
reconfigure the property or design a different traffic pattern, worsens, rather
than cures, these violations.
Lastly, Memorial argues that "[t]he supposed approval of 160 West's
traffic circulation proposal by the Passaic County Planning Board does not
save the Board's approval." We agree.
A-0511-19
35
The Board's resolution states: "The applicant clarified that the Passaic
County Planning Board approved the tractor-trailer maneuvering patterns";
however, the record contains no evidence as to what was actually submitted to
the Passaic County Planning Board and, therefore, what it actually approved.
Nevertheless, the Board was required to address the issue of safe ingress
and egress onto the property as part of its site plan review. El Shaer, 249 N.J.
Super. at 330. Concluding that the Passaic County Planning Board had already
approved the tractor-trailer maneuvering patterns, without sufficient credible
evidence, does not satisfy that obligation. Ibid.We conclude the trial court erred when it affirmed the resolution because
the Board's approval was arbitrary, capricious, and unreasonable since
compliance with the proposed traffic circulation pattern would violate the MV
Code.
Lack of Evidence/Hearsay/Net Opinion
Riverview Towers urges us to reverse, contending the Board's approval
was arbitrary, capricious, and unreasonable because it was not based on
substantial credible evidence in the record and the Board relied on unsupported
hearsay and net opinions from 160 West's traffic expert. Specifically, they
argue that: (a) the Board ignored the testimony of its traffic expert, Dean,
A-0511-19
36
without explanation; (b) the Board's approval was not based on substantial
credible evidence in the record to support either the requested variances or the
site plan; (c) Staigar's testimony relied on uncorroborated hearsay not
otherwise substantiated in the record; and (d) Staigar's testimony was primarily
a net opinion the Board should have rejected. These contentions have merit.
(a) Dean's Expert Testimony
First, Riverview Towers contends the Board improperly ignored Dean's
"persuasive expert testimony . . . that the tractor-trailer delivery plan proposed
was inherently unsafe and illegal as proposed." We agree.
As noted, aside from identifying the experts who testified at the
hearings, the resolution does not provide a summary of their testimony, makes
no credibility determinations, and does not indicate why the Board accepted
Staigar's testimony over Dean's. For the reasons already expressed, these
insufficient findings fail to satisfy the requirements of N.J.S.A. 40:55D-10,
making our review impossible.
(b) Substantial Credible Evidence
Second, Riverview Towers contend that the Board's approval was
arbitrary, capricious, and unreasonable because it was not based on substantial
credible evidence in the record to support either the requested variances or the
A-0511-19
37
site plan. Riverview Towers argue that 160 West failed to present sufficient
proof of the positive criteria to satisfy the standards in N.J.S.A. 40: 55D-70(c).
Thus, 160 West "did not prove hardship or substantial public benefit from
granting the variances," and the "Board skirted the safety issues because they
like the use." This argument has merit.
The resolution did not discuss the (c)(1) and (c)(2) variances in any
detail. Moreover, the resolution did not address the reasons the Board found
that 160 West had satisfied the positive and negative criteria. The Board
therefore made insufficient findings of fact to satisfy the requirements of
N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super. at 332-33.
(c) Hearsay Testimony
Third, Riverview Towers contend that Staigar's testimony improperly
relied on uncorroborated hearsay not otherwise substantiated in the record. It
argues that much of Staigar's testimony relied on conversations with the owner
of the property about the number of expected deliveries, but there was
"nothing in the record to substantiate that the representation is a fair estimate."
Therefore, the Board's reliance on Staigar's unsupported hearsay testimony was
arbitrary, capricious, and unreasonable. We agree.
A-0511-19
38
The Board was not bound by the Rules of Evidence. See N.J.S.A.
40:55D-10(e) (declaring that "[t]echnical rules of evidence shall not be
applicable to the hearing" of a municipal land use agency); Baghdikian v. Bd.
of Adjustment, 247 N.J. Super. 45, 49 (App. Div. 1991) (stating that zoning
board "cannot be equated with courts" and procedural safeguards employed in
judicial proceedings should not be "imported wholesale" into proceedings
before land use board). However, zoning boards cannot rely upon
unsubstantiated allegations. Bd. of Educ., 409 N.J. Super. at 435. "[A] fact
finding or a legal determination cannot be based on hearsay alone. Hearsay
may be employed to corroborate competent proof, or competent proof may be
supported or given added probative force by hearsay testimony." Ruroede v.
Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013) (quoting Weston v.
State, 60 N.J. 36, 51 (1972)). Thus, when such conclusions are based on
hearsay, the court must ensure there is "'a residuum of legal and competent
evidence in the record to support it.'" Ibid. (quoting Weston, 60 N.J. at 51).
Staigar's testimony as to the number of anticipated deliveries to the
property was admittedly hearsay – it was based entirely on his conversations
with the property owner. Because there was no other evidence to substantiate
Staigar's testimony on the number of deliveries, it is unclear whether his
A-0511-19
39
testimony represented a fair estimate of the number of actual deliveries that
could be expected at the property. Simply stated, Staigar's testimony regarding
the number of deliveries was unsubstantiated hearsay.
(d) Net Opinion
Last, Riverview Towers argue that the Board should have rejected
Staigar's testimony regarding tractor-trailer deliveries not blocking both lanes
of West Broadway as a net opinion. According to Riverview Towers, Staigar
"had no support for this assertion[,]" and "[o]n cross-examination, he admitted
he had no supporting documentation and that his opinion was based on his own
analysis." Further, Staigar's opinion was contrary to 160 West's civil
engineer's plan, which showed that the tractor-trailers would block both lanes
of West Broadway. Staigar also "had no knowledge of what happened when
the prior supermarket use was in operation years earlier, and whether the
tractor-trailer deliveries . . . presented any problems." We agree that Staigar's
testimony as to the traffic circulation plan was a net opinion.
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids
the admission into evidence of an expert's conclusions that are not supported
by factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53-54
(2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "Simply
A-0511-19
40
put, the net opinion rule 'requires an expert to give the why and wherefore of
his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186
N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401
(App. Div. 2002)). See also Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 371-72 (2011) ("[A] trial court may not rely on expert testimony that
lacks an appropriate factual foundation and fails to establish the existence of
any standard about which the expert testified.").
The rules of evidence do not apply in administrative proceedings.
N.J.R.E. 101(a)(3); see also N.J.S.A. 40:55D-10(e). Nonetheless, the policy of
the net opinion rule has been applied in land use cases. New Brunswick
Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16
(1999); Bd. of Educ., 409 N.J. Super. at 435. Indeed, zoning boards cannot
rely upon unsubstantiated allegations, nor can it rely upon net opinions that are
unsupported by any studies or data. Cell S. of N.J. v. Zoning Bd., 172 N.J. 75,
88 (2002).
Staigar testified that, although the plans indicated that tractor-trailers
would have to cross into the opposing lane of traffic, he analyzed the traffic
plan himself and disagreed. "[Trucks] may cross that centerline, the physical
centerline of the road, but not into the opposing lane." However, he did not
A-0511-19
41
provide an updated plan or any other report explaining his analysis. He did not
give the "why" and "wherefore," or otherwise explain his analysis. He did not
provide a foundation for his testimony. His testimony therefore amounted to a
net opinion, Pierre, 221 N.J. at 53-54; Polzo, 196 N.J. at 583; Townsend, 186
N.J. at 494, and the Board should have lent no weight to it. See Nextel of
N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 43
(App. Div. 2003) ("An expert opinion that is not factually supported is a net
opinion or mere hypothesis to which no weight need be accorded.").
We further conclude the trial court erred by affirming the resolution
because the Board's approval was arbitrary, capricious, and unreasonable since
it was not based on substantial credible evidence in the record.
Variances Required by The Redevelopment Plan
Riverview Towers contend that the Board's approval was arbitrary,
capricious, and unreasonable and should be reversed because 160 West did not
apply for or obtain the necessary variances under the Redevelopment Plan.
They argue that 160 West's application should have been evaluated under
standards set forth in the Redevelopment Plan because "all the general zoning
standards of the underlying C-2 (general commercial district) zone are
superseded under the terms of the [Redevelopment] Plan." According to
A-0511-19
42
Riverview Towers, 160 West's application "deviated from the Redevelopment
Plan standard – thus requiring variances – that were never addressed or proven
by 160 West or considered by the Board." "Even if some deviations are
preexisting or are impractical to meet, [it was] 160 West's obligation to prove
entitlement to a variance required by the [Redevelopment] Plan."
We hold the trial court erred when it affirmed the Board's resolution
because the Board's approval was arbitrary, capricious, and unreasonable since
it failed to properly consider the requirements of the Redevelopment Plan.
Planning boards have a duty to determine all variances required for a
particular application. See O'Donnell v. Koch, 197 N.J. Super. 134, 143 (App.
Div. 1984) (finding local zoning boards have a duty to take cognizance of what
variances are required in connection with an application, even if no evidence
was presented regarding variances and no variance was specifically requested).
Here, the Board acknowledged that the application was under the
purview of the Redevelopment Plan. The Redevelopment Plan specifically
provided:
The Area shall be redeveloped in accordance with the
standards detailed in this Redevelopment Plan. The
Plan supersedes the use, bulk, and design standard
provisions of the Paterson Zoning Ordinance unless
specifically referenced. Other standards and
submission requirements relating to all zones in
A-0511-19
43
Paterson not specifically enumerated within as
detailed in the Zoning Ordinance shall apply.
Any deviation from standards of this Plan that result
in a "d" variance pursuant to N.J.S.A. 40:50D-70d
shall be addressed as an amendment to the Plan rather
than via variance relief through the Paterson Zoning
Board of Adjustment "C" variance relief pursuant to
N.J.S.A. 40:55D-70c and design waivers may be
addressed by the Planning Board through the
development application process. All developments
must be approved by the Planning Board and shall be
submitted through the normal site plan and
subdivision procedures as identified by N.J.S.A.
40:55D, et seq.
Riverview Towers argues that the application deviated from the
Redevelopment Plan, and the following required variances, which are in
addition to the three variance we previously identified as improperly omitted:
1. Signage . . . shall be standardized so as to
reduced visual clutter.
2. Provisions shall be provided to separate
pedestrian from vehicular traffic within lots.
3. Parking lots must be buffered from the public
right-of-way with a minimum of three feet and
the buffer shall contain walls between two and
four feet in height and landscaping.
4. The commercial parking areas shall only be lit
without spilling onto neighboring properties and
the lighting should conform to existing
standards for brightness and spillage.
A-0511-19
44
5. Regarding landscaping, commercial parking lots
coverage cannot exceed [eighty] percent,
including at least [ten] percent of the lot
landscape.
6. The parking lot must have one tree for every ten
parking spaces, and the trees must provide
shade.
7. At least fifty percent of the parking lot must be
shaded within a [ten]-year growth period, and
there are many other landscaping requirements
not met by the application.
8. Parking lots with over [thirty] spaces must have
a pedestrian walkway through the lot which
must be of a different surface material and
should be at least five feet wide.
9. Parking lots next to the public right-of-way
must be buffered and segregated from the street
with partition elements including fences, shrubs,
raised paving that grades a level difference, and
other methodologies.
Riverview Towers' argument has merit. The Redevelopment Plan zoning
regulations supersede the zoning regulation contained in the Paterson Zoning
Ordinance. 160 West asserted that it complied with the number of parking
spaces required under the Redevelopment Plan, which was fewer than what
was mandated by the C-2 commercial zone standards. However, 160 West did
not identify any other requirements under the Redevelopment Plan, and
A-0511-19
45
therefore failed to request any other variances. The Board likewise failed to
identify or consider any additional variances under the Redevelopment Plan.
Even if the deviations were preexisting or impractical to meet, it was 160
West's obligation to prove it was entitled to the necessary variances.
In its brief, the Board responds to Riverview Towers' argument as
follows: "The appellant conveniently neglects to mention that the property
was the subject of several applications over approximately [fifteen] years
which, along with the subject application, addressed all of the issues that the
appellant incorrectly states as part of the redevelopment plan." Even if the
Board is correct, 160 West did not establish that the prior applications did, in
fact, "address all of the issues" raised by Riverview Towers, which was its
obligation. In fact, there was no substantive evidence presented that the prior
applications sufficiently addressed those issues or the requirements of the
Redevelopment Plan. Thus, the Board did not properly address the
requirements of the Redevelopment Plan.
We hold that the trial court erred when it affirmed the resolution because
the Board's approval was arbitrary, capricious, and unreasonable since it failed
to properly address the requirements of the Redevelopment Plan.
Supplemental Expert Report
A-0511-19
46
Memorial contends that 160 West "poisoned" the record when, "[d]espite
the express limitations of the trial court's remand order, 160 West chose to
submit a supplemental expert report in direct violation of the order." As a
result, the Board improperly considered Staigar's supplemental report. We
conclude his argument has merit since it is clear from the Board's deliberations
that they did review and consider the report in violation of the court's order.
We therefore hold that the trial court erred by affirming the resolution because
the Board's approval was arbitrary, capricious, and unreasonable since it
considered evidence outside of the record.
"The factual determinations of the planning board are presumed to be
valid and the exercise of its discretionary authority based on such
determinations will not be overturned unless arbitrary, capricious or
unreasonable." Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J.
Super. 552, 560 (App. Div. 2004). "[T]he law presumes that boards of
adjustment and municipal governing bodies will act fairly and with proper
motives and for valid reasons." Id. at 560-61 (quoting Kramer, 45 N.J. at 296).
"The arbitrary and capricious standard is analogous to the substantial evidence
standard." Rocky Hill Citizens for Responsible Growth v. Plan. Bd., 406 N.J.
Super. 384, 411 (App. Div. 2009); see also Cell S. of N.J., 172 N.J. at 88-89.
A-0511-19
47
Indeed, it is "essential that the [planning] board's actions be grounded in
evidence in the record." Fallone Props., 369 N.J. Super. at 562.
Here, the Board acted improperly by considering Staigar's supplemental
report. Indeed, the Board's counsel acknowledged that "[t]he court order
specifically ruled . . . that [Dean would be] the only witness" at the remand
hearing, and that "[t]here would be no other reports other than what was
submitted last year on behalf of the applicant." However, Memorial correctly
points out that the Board members reviewed, considered, and were influenced
by Staigar's supplemental report.
At the December 19, 2018, remand hearing, Commissioner Brooks
questioned Dean about his opinion and report:
My concern, and I guess my question would be to you,
is that we've had to review now two traffic reports.
When does your traffic report become more adequate
than the other person's traffic report? Because in
looking at all of this and being here when the Board
made the decision, I'm kind of confused as to what's
the validity . . . over and above the original and the
other traffic report?
Commissioner Brooks also said: "My second question I think is the
interpretation of the N.J.S.A. 39:4-67. Here again the details of what this
means varies from one report to the other. I mean, I see where . . . Mr. Staigar
has taken apart your interpretation."
A-0511-19
48
The Board, or at the very least Commissioner Brooks, was improperly
influenced by evidence outside of the record. Because it is impossible to
ascertain the extent to which Staigar's supplemental report influenced the other
Board members, we hold that the trial court erred when it affirmed the Board's
resolution because the Board's approval was arbitrary, capricious, and
unreasonable since it considered evidence outside of the record.
We recognize that boards have local knowledge of the community and
this is the reason for our general deference. Jock v. Zoning Bd., 184 N.J. 562,
597 (2005). However, a board's decision still must have a factually
substantiated basis, which was not demonstrated here. Any arguments not
specifically addressed lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)E.
Reversed.
A-0511-19
49