Michael Jackson v. 319 Penn Development, Llc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1351-22
MICHAEL JACKSON,
LEON MONDELLI,
MICHAEL MERHI,
ALDEMAR VELEZ, and
CARMEL CORNWALL,
Plaintiffs-Appellants,
v.
319 PENN DEVELOPMENT, LLC
and the CITY OF PATERSON
BOARD OF ADJUSTMENT,
Defendants-Respondents.
_____________________________
Argued May 7, 2024 – Decided July 23, 2024
Before Judges Sumners and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-1003-22.
John J. Segreto argued the cause for appellants (Segreto
& Segreto, LLP, attorneys; John J. Segreto, of counsel
and on the briefs).
Derek W. Orth argued the cause for respondent 319
Penn Development, LLC (Inglesino Taylor, attorneys;
Derek W. Orth and Alyssa E. Spector, of counsel and
on the brief).
Marco A. Laracca argued the cause for respondent City
of Paterson Board of Adjustment (Bio & Laracca, P.C.,
attorneys; Marco A. Laracca, on the brief).
PER CURIAM
Plaintiffs Michael Jackson, Leon Mondelli, Michael Merhi, Aldemar
Velez, and Carmel Cornwall appeal the trial court's order affirming defendant
City of Paterson Board of Adjustment's decision granting defendant 319 Penn
Development, LLC preliminary and final site plan approval, design waivers, and
numerous variances under the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -136, to develop a mixed-use residential and commercial project at
a former government office building. We affirm.
I.
A.
319 Penn owns the abandoned Passaic County administration building in
Paterson, which is located at 305-319 Pennsylvania Avenue (the property)––
bounded by Railway Avenue, Buffalo Avenue, and Columbia Avenue––in a
Mixed Use District. The city's zoning ordinance allows "commercial and
industrial uses" in the district "to create an environment for effective integration
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and mutual support among the nonresidential activities and to promote more
viable economic development and higher land values." Paterson, N.J., Code ch.
483, art. V, § 500-2.1(I). It prohibits new residential development in the district
"to protect homes from the adverse effects of the light industrial and intensive
commercial uses permitted in the district and to conserve the supply of land for
such uses." Ibid.
In 2021, 319 Penn applied to the Board for preliminary and final site plan
approval, plus:
• Waivers of several procedural requirements for
site plan approval;
• Use variances, pursuant to N.J.S.A. 40:55D-
70(d), to permit residential development in the
Mixed Use District and for floor area ratio (1.4
maximum permitted, 5.0 proposed), density (67
total units permitted for a lot of the property's
size, 175 units proposed), and height (three floors
permitted, five floors proposed);
• Bulk variances, pursuant to N.J.S.A. 40:55D-
70(c), for front yard setback on Columbia,
Pennsylvania, and Buffalo Avenues (25 feet
required on each street, 0 feet proposed for each
street); side yard setback (15 feet required, 0 feet
proposed), lot coverage (20% permitted, 99%
proposed), open space (38,350 square feet
required, 11,767 square feet proposed), parking
space size (for undersized spaces), and parking
setbacks (3 feet from property line required, 0
feet proposed); and
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• Design waivers for minimum parking space size,
parking space width (nine feet required, eight feet
proposed), and loading zone dimensions.
The proposed development's residential units would comprise three studio
apartments, eighty-five 1-bedroom/1-bathroom apartments, three 2-bedroom/1-
bathroom apartments, seventy-seven 2-bedroom/2-bathroom apartments, and
three 3-bedroom/2-bathroom apartments. The proposal included a new
"stormwater management system," "signage, landscaping, drainage
improvements, curbing, concrete sidewalks, streetscape improvements, fencing,
lighting," and improved utilities.
319 Penn published notice of the December 9, 2021 Board hearing of its
application in a local newspaper and sent copies of the notice by certified mail
to all property owners within 200 feet of the property. 319 Penn obtained
certified mail receipts from the post office, all except the receipt for the mailing
addressed to Diego Cabrera, were stamped. However, post office tracking
history showed Cabrera's mailing was delivered on December 2. Another
mailing addressed to Harold C. Ranges, Jr. was mislabeled with the wrong door
number, delaying its delivery. However, post office tracking history showed
this mailing was delivered, as was a second mailing sent to a company controlled
by Ranges with the same mailing address as Ranges himself. Two days before
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the hearing, 319 Penn submitted to the Board an affidavit showing it mailed
notice to all neighboring property owners.
B.
At the December 9 Board hearing, 319 Penn presented the following
expert testimony:
1. Architect
Albert Arencibia, a licensed architect in seven states with over thirty years
of experience, described the proposed development as a "state-of-the-art
building" and detailed its indoor and outdoor amenities and architectural
features, floor by floor. Arencibia stated the proposed development would
"revitalize the neighborhood" by replacing a vacant building that has been "an
eyesore in the community" with a modern structure "open to the neighborhood"
and compatible with the surrounding aesthetic. The proposed development's
exterior would feature decorative columns, a canopy, lighting to "create a nice
interest hue at night," a landscaped entrance area designed to give off "a nice
soft look" from the street, and transparent panes through which passersby would
be able to see inside the lobby.
Arencibia maintained the proposed development's retail spaces would
"serve the residents of the area" and the building's residents and create a
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commercial corridor on Buffalo Avenue, next to an existing farmer's market. To
serve the retail customers, the retail space included an outdoor courtyard and
separate parking spaces on Columbia Avenue, which would prevent retail
customers from using street parking that could be used by the farmer's market
or neighboring residents.
Arencibia further detailed services offered to the building's residents. It
would feature a two-story parking garage, enter and exit on Columbia Avenue,
staffed with an on-site parking attendant. The building would also have 24/7
"on-site management" to assist residents and a security system with cameras and
on-site security personnel, who would have direct contact the local police
station. Trash collection would be done by a private firm––not the
municipality––at times convenient for residents and neighbors.
Responding to the Board's concerns about the impact on the surrounding
area, Arencibia opined there would be no significant impact on local schools
because, in his experience, projects like this did not attract many families with
school-age children. Answering a question from Mondelli, Arencibia clarified
there would be vehicle access only on Columbia Avenue because it was
"underutilized" compared to Buffalo or Pennsylvania Avenues and was
structurally better suited for the new retail parking.
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2. Engineer
Project engineer Adnan Khan, a licensed professional engineer in four
states and a New Jersey certified municipal engineer with over thirty years of
experience, echoed the improvements Arencibia detailed and described the
planned stormwater management system. He added landscaping would include
shade trees "all around the block" on Columbia, Buffalo, and Pennsylvania
Avenues. New lighting would illuminate the block "to provide a safe passage
for tenants or any passerby" at night. Khan noted that new sidewalks and curb
cuts would be installed.
3. Traffic Engineer
John Corak, a licensed traffic engineer, 1 authored a traffic study
concluding the property was "particularly well-suited for traffic patterns in the
area." He stated traffic would be dispersed "in all different directions" from the
property because it was bounded by four streets. He explained "[a]ll the
different routes to come in and out of the site and an access point that is along
from an access management perspective, the best street that it could be located
on within this design." Additionally, Corak testified the increased traffic from
1
Because Corak had testified before the Board the previous week regarding a
different application, the Board did not have him mention his experience.
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the proposed development would still be less than the increase caused by purely
commercial or residential development, as residential use generated less traffic
than other land uses.
The Paterson city planner, noting the proposed development's size itself
required several variances, questioned the traffic impact caused by attracting
hundreds of cars and people to the neighborhood. Corak responded that the
property could accommodate the increased traffic because residents would not
be entering or leaving the site at the same time of day and, in his experience,
residential developments with road connections like those bounding the property
dispersed traffic throughout the day.
Corak also asserted Columbia Avenue was the best place for vehicle
access points because "when you locate access and driveways for developments,
you want to place them on the roadways that are less traveled" so drivers
entering or exiting the property can turn with minimal disruption to existing
traffic. The proposed development would increase the amount of parking on
Columbia Avenue by replacing the existing parallel parking spaces with "90 -
degree right angle spaces," which would accommodate more parked cars than
parallel parking. He added 319 Penn would make the street more conducive to
street parking by eliminating its "one long curb cut." As for residents' on-site
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parking, Corak explained the garage would accommodate several different car
types in the same spaces.
4. Planning Expert
Kathryn Gregory, a New Jersey professional planner for over twenty years
who has served as a city planner for many New Jersey towns, testified regarding
the variances sought by 319 Penn. At the outset of her testimony, the city
planner stated he agreed the property was suitable for the proposed development.
Gregory, using an aerial photograph of the surrounding neighborhood overlaid
with zone boundaries, showed that the property was located at the edge of the
Mixed Use District and bordered another zone where mixed residential and
commercial uses were allowed at higher densities and building heights than
permitted in the Mixed Use District. She also testified the property is much
larger than the surrounding mixed-use lots. She stated that while the proposed
development's tallest point would be forty feet high, the structure would be of
"varying heights." She opined those characteristics warranted use variances to
permit a mixed-use building of the proposed development's scale on the
property.
In addressing the other requested variances, Gregory explained they were
necessary or beneficial, acknowledging "a lot of the variances are very
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intermingled" in this development plan. She explained 319 Penn planned to
demolish the property's existing building and construct a new building, which
was more economically feasible than renovating the existing building.
Gregory then opined the proposed development's varied amenities and
features would not substantially detriment the public, but would advance the
following objectives set forth in the Paterson master plan:
• "To improve the appearance of [Paterson's]
streets" by improving "facades of civic and
commercial structures"; providing "new
landscaping, street trees, street furniture,
decorative street lights, and other attractive
streetscape elements"; improving sidewalks; and
reduced graffiti and litter.
• "To provide for a variety of housing types that
will attract and retain a mix of residents from
various socio-economic backgrounds."
• "To address issues related to a high cost of living
from an inflated rental housing market" by
expanding "the supply of housing to help drive
down" housing costs.
• "To provide opportunities for local employment
growth" by attracting industries that will hire
Paterson residents.
She concluded the proposed development represented "more of a highest and
best use than any of the permitted uses in the" Mixed Use District.
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C.
At the hearing's conclusion, the Board approved 319 Penn's application
subject to conditions recommended by the city planner. Almost three months
later, the Board adopted a resolution memorializing its decision.
The Board's resolution summarized the variances requested except the
height variance and recited the presented testimony; 319 Penn's representations,
concerns expressed by Board members and the public; and the city planner's
recommended conditions should the Board approve the application. The Board
made four "findings of fact":
1. The application will not create any undue
interference and/or hardship to the neighborhood.
2. The application is appropriate for the neighborhood.
3. The application will not create any detriment to the
public good.
4. The application will not create a parking hindrance
to the neighborhood . . . .
Next, the resolution stated the Board granted 319 Penn's application,
subject to several specific conditions, including 319 Penn's ongoing compliance
with all relevant laws and "adher[ence] to all of the representations and
conditions placed on the record at" the December 9, 2021 "[p]ublic [h]earing[]."
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D.
Plaintiffs challenged the Board's approval of 319 Penn's application by
filing a complaint in lieu of prerogative writs. They alleged, among other things:
(1) "319 Penn's notice was defective"; (2) the Board's decision was arbitrary,
capricious, and unreasonable; (3) the Board "failed to make any of the required
findings of facts and conclusions of law"; (4) 319 Penn provided insufficient
support for the variances it requested; and (5) 319 Penn's "experts only offered
net opinions without any support in the record."
Following a trial de novo, the trial court issued an order and written
decision affirming the Board's grant of 319 Penn's application subject to
conditions. The court determined the proofs established the required
neighboring property owners received notice of the application and the Board
hearing date, and the Board's failure to have the record reflect that fact did not
deprive it of jurisdiction to consider the application. The court stressed 319
Penn's certified mail receipts and affidavit of mailing showed it gave proper
notice, as "[n]otice is complete upon mailing not upon the return receipt."
Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962).
The court held the Board's decision was not arbitrary, capricious, or
unreasonable because "there was substantial uncontroverted evidence in the
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record and in the [r]esolution" to support granting the application. The court
found 319 Penn's experts did not offer net opinions considering their detailed
testimony was supported by facts and documents, including architectural
renderings, revised site plan, traffic study, and engineering reports, in the record.
The court determined the Board's resolution "incorporate[d] the testimony and
representations in the record," "refer[red] to the detailed testimony of the experts
and ma[de] specific findings based on that testimony."
Lastly, the court noted the Board "did not ignore the waiver requirement"
of the zoning ordinance because 319 Penn's notice disclosed its application
included several waivers from zoning ordinance's site plan approval
requirements. There was no objection to the waivers before or during the Board
hearing.
Plaintiffs appealed.
II.
A.
Like the trial court, an appellate court's review of a board of adjustment's
variance decision is "limited to determining whether [it] . . . was arbitrary,
unreasonable, or capricious." Med. Ctr. at Princeton v. Twp. of Princeton
Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). This
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court will affirm if the "board's decision comports with the statutory criteria and
is founded on adequate evidence." Burbridge v. Governing Body of Mine Hill,
117 N.J. 376, 385 (1990). We do not substitute our own independent judgment
for that of the zoning board; review is limited to "whether the board could
reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J. 476,
485 (1987); Cummins v. Bd. of Adjustment, 39 N.J. Super. 452, 460 (App. Div.
1956). Courts, however, generally show less deference towards grants than
denials of use variances. Saddle Brook Realty, LLC v. Twp. of Saddle Brook
Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).
"Variances to allow new nonconforming uses should be granted only
sparingly and with great caution since they tend to impair sound zoning." Kohl
v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967). We review a ruling concerning
the adequacy of expert opinion for abuse of discretion. Riley v. Keenan, 406
N.J. Super. 281, 295 (App. Div. 2009). Lastly, this court reviews the trial court's
interpretation of the MLUL or municipal zoning ordinance de novo, as these
determinations present questions of law. See Dunbar Homes, Inc. v. Zoning Bd.
of Adjustment, 233 N.J. 546, 559 (2018). Zoning boards have "'no peculiar skill
superior to the courts' regarding purely legal matters." Ibid. (quoting Chicalese
v. Monroe Twp. Plan. Bd., 334 N.J. Super. 413, 419 (Law Div. 2000)).
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B.
Guided by the above principles, we separately address and reject
plaintiffs' contentions on appeal.
1. Notice
Plaintiffs claim 319 Penn's failed to establish proper notice of the Board
hearing to property owners within 200 feet of their property by marking into
evidence the notices, affidavit of mailing, and affidavit of publication.
Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 352
(App. Div. 2011); Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 295 N.J.
Super. 234, 237 (App. Div. 1996). Plaintiffs also assert the Board failed to state
on the record whether 319 Penn provided proper notice. By failing to strictly
comply with notice requirements, plaintiffs claim the Board's resolution is void.
319 Penn contends it is only required to submit an affidavit of proof of
service with the Board, N.J.S.A. 40:55D-12(i), which it did two days before the
hearing. The Board contends it satisfied its statutory requirements at the
beginning of the hearing by finding 319 Penn satisfied all notice requirements,
and plaintiffs did not show they or anybody else were prejudiced from an alleged
inadequate notice. In addition, defendants point out the post office tracking
history demonstrates all certified mailings of notice were timely mailed at least
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ten days before the hearing and confirmed; notice by certified mail is "complete
upon mailing," N.J.S.A. 40:55D-14; Szczesny, 71 N.J. Super. at 354.
The MLUL mandates that the public receive several forms of notice at
least ten days before a zoning board hears "applications for development,"
including variance applications, N.J.S.A. 40:55D-3. N.J.S.A. 40:55D-12(a).
"[P]roper public notice in accordance with the requirements of the MLUL is a
jurisdictional prerequisite for a zoning board[]" to hear an application. Pond
Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J.
Super. 335, 350 (App. Div. 2008) (citing Perlmart of Lacey, Inc., 295 N.J. Super.
at 237). Among other requirements, the applicant must notify all property
owners "within 200 feet . . . of the property which is the subject of [the] hearing,"
which it may do by sending them notice through certified mail. N.J.S.A.
40:55D-12(b).
As defendants correctly contend, the MLUL merely requires neighboring
property owners "be given" notice. Ibid. It does not require receipt, nor do its
detailed requirements for zoning board hearings require specific jurisdictional
findings, N.J.S.A. 40:55D-10. "'[A]bsent any specific indication of legislative
intent to the contrary,' the court should not read into the statute language that is
simply is not there." Schundler v. Donovan, 377 N.J. Super. 339, 345 (App.
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Div. 2005) (quoting Chase Manhattan Bank v. Josephson, 135 N.J. 209, 225
(1994)).
Plaintiffs offer no legal authority refuting the trial court's reliance on
Szczesny, which concluded notice by mail occurs once the notices are "properly
mailed, regardless of [their] receipt." 71 N.J. Super. at 354. They provide no
proof that a property owner entitled to notice did not receive it. Courts presume
mail "correctly addressed, stamped and mailed was received by the party to
whom it was addressed" unless a party shows the intended recipient "never in
fact received" it. Ibid. The tracking histories and affidavits, establish that all
property owners within 200 feet of the proposed development received proper
notice.
2. Experts' Opinions
Plaintiffs contend that 319 Penn's traffic engineer Corak and planner
Gregory offered net opinions, which the Board and trial court should not have
considered. Defendants argue the trial court correctly determined the experts
did not offer net opinions, as they all explained the facts, data, or evidence they
relied on, and the Board did not err by finding the experts credible, Baghdikian
v. Bd. of Adjustment, 247 N.J. Super. 45, 49 (App. Div. 1991), and relying on
their testimony, TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment, 215 N.J.
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26, 46-47 (2013); Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75,
86-87 (2002).
N.J.R.E. 703 requires an expert's opinion be "grounded in 'facts or data
derived from (1) the expert's personal observations, or (2) evidence admitted at
the trial, or (3) data relied upon by the expert which is not necessarily admissible
in evidence but which is the type of data normally relied upon by experts.'"
Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. County of Essex,
196 N.J. 569, 583 (2008)). "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.'" Id. at 53-54 (alteration
in original) (quoting Polzo, 196 N.J. at 583). The rule "mandates that experts
'be able to identify the factual bases for their conclusions, explain their
methodology, and demonstrate that both the factual bases and the methodology
are reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417
(1992)). "An expert's conclusion 'is excluded if it is based merely on unfounded
speculation and unquantified possibilities.'" Ibid. (quoting Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997)). "[A]n expert offers an inadmissible
net opinion if he or she 'cannot offer objective support for his or her opinions,
but testifies only to a view about a standard that is personal.'" Davis v. Brickman
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Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v.
New Cmty. Corp., 207 N.J. 344, 373 (2011)) (internal quotation marks omitted).
An expert's testimony must not constitute speculation. Grzanka, 301 N.J. Super.
at 580. Although our evidentiary rules do not strictly apply in zoning board
hearings, N.J.S.A. 40:55D-10(e), our courts have held the net opinion rule
applies in variance proceedings, e.g., New Brunswick Cellular Tel. Co. v.
Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 (1999).
Both experts relied on specific characteristics of the proposed
development, property, or surrounding neighborhood when explaining their
respective opinions. Corak did not, as plaintiffs assert, fail to provide any basis
for his opinion that the property's size and location were well-suited to disperse
incoming traffic; explain how traffic would be distributed when vehicles could
only enter or exit the site from Columbia Avenue, how the proposed
development would affect local traffic or schools; or cite any traffic study or
other data marked into evidence. Corak thoroughly detailed his findings based
on studying the property and its surrounding streets.
Likewise, plaintiffs incorrectly argue Gregory cited no evidence to
"explain the 'why and wherefore' of [her] opinions" about the proposed
development's benefits and lack of substantial detriment to the public. Gregory
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relied on an annotated aerial photograph and drew on the property's location
relative to neighboring zones. We discern no abuse of discretion in the trial
court's determination their testimony was not inadmissible net opinion. See
Pomerantz, 207 N.J. at 371.
3. Use Variance Evidence
Plaintiffs argue 319 Penn "failed, miserably," to justify the requested use
variances. Specifically, 319 Penn did not establish the proposed development
is particularly suitable for the property; proffered improper reasons for granting
the use variances; failed to show how the proposed development would not
substantially impair the intent and purpose of the zoning ordinance and master
plan when it is incompatible with the Mixed Use District's permitted uses and
would substantially detriment the local community.
Defendants contend the Board had sufficient evidence to grant the
requested use variances based on the expert testimony of their planner. They
also point out the city planner agreed the property is suitable for the proposed
development plan.
We conclude the Board's decision was supported by the record, as
established during the hearings, and was not arbitrary, capricious, or
unreasonable. See J.D. Constr. Corp. v. Isaacs, 51 N.J. 263, 270 (1968); Kramer
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v. Bd. of Adjustment, 45 N.J. 268, 296 (1965); Cohen v. Bd. of Adjustment, 396
N.J. Super. 608, 615 (App. Div. 2007). In reaching this conclusion, we are
mindful that "[v]ariances to allow new nonconforming uses should be granted
only sparingly and with great caution since they tend to impair sound zoning."
Kohl, 50 N.J. at 275; see also Burbridge, 117 N.J. at 385. And based on our de
novo review of the law, the Board complied with the MLUL as well as its zoning
ordinances. See Dunbar Homes, Inc., 233 N.J. at 559.
To obtain a use variance under N.J.S.A. 40:55D-70(d), an applicant must
satisfy both positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J.
152, 156 (1992). The positive criteria require "the proposed site is particularly
suitable for the proposed use." Smart SMR of N.Y., Inc. v. Borough of Fair
Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co.,
107 N.J. 1, 4 (1987)). "To satisfy the negative criteria, an applicant must show
that the use will not substantially impair the purpose and intent of the zoning
ordinance, or constitute a substantial detriment to the public good." New
Brunswick Cellular Tel. Co., 160 N.J. at 15.
The trial court correctly determined 319 Penn's witnesses satisfied these
criteria. All four 319 Penn's experts' testimony referenced specific
characteristics of the property and its surrounding streets in to support the prosed
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development plan. See Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 565
(App. Div. 1996) (requiring "special reason[s]" grounded in "a peculiar feature"
specific to the property). And the planning expert pointedly analyzed the zoning
ordinance and master plan's objectives. Though plaintiffs note the proposed
development plan contradicts the city's other master plan goals, the Board
properly considered the proposed development's pros and cons. The record
demonstrates the Board "followed the statutory guidelines and properly
exercised its discretion" when approving 319 Penn's use variance request. See
Med. Ctr. at Princeton, 343 N.J. Super. at 199. The Board properly exercised
its fact finder role in accepting the experts' opinions, with no contrary evidence
showing its determination was not "reasonably made, that decision is conclusive
on appeal." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of
Adjustment, 361 N.J. Super. 22, 41 (App. Div. 2003).
4. Bulk Variances, Design Waivers, and Site Plan Approvals
Plaintiffs contend 319 Penn's application and the Board's resolution erred
by only addressing one of the twenty-four factors, i.e., stormwater, set forth in
the zoning ordinance's site plan review requirements, Paterson, N.J., Code ch.
483, art. III, § 300-6.5, in either. They contend 319 Penn's experts failed to
address the impracticality and undue hardship requirements for granting parking
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design waivers, which the Board also did not mention in its resolution. N.J.S.A.
40:55D-51(b). Plaintiffs add it is unclear what bulk variances, site plan, or
design waivers the Board ultimately approved because 319 Penn never marked
the proposed site plan into evidence.
Defendants emphasize there was sufficient evidence to support the
Board's grant of the requested bulk variances, parking design waivers, and site
plan approval based upon the experts' testimony. 319 Penn argues "approval of
a use variance compels approval of variances from the bulk regulations and the
design waivers" because the bulk variances and design waivers were "ancillary
to the" requested use variances, Price v. Himeji, LLC, 214 N.J. 263, 301 (2013),
as a zoning board must "consider the overall site design" when deciding a use
variance application, Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J.
Super. 613, 621 (App. Div. 2005). The Board agrees and adds it "advance[d]
the purposes of the MLUL and create[d] benefits that outweigh[ed] any
detriment caused by deviating from the zoning ordinance." Lang v. Zoning Bd.
of Adjustment, 160 N.J. 41, 57 (1999). 319 Penn also maintains the Board "did
not ignore the site plan ordinance" by granting the waivers after it indicated it
would seek relief from specific site plan ordinance requirements in its
application and notices.
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We discern no error in the Board's decision granting bulk variances,
design waivers, and site plan approval to 319 Penn. Under the MLUL, a zoning
board may grant a bulk variance when the MLUL's purposes "would be advanced
by a deviation from the zoning ordinance requirements and the benefits of the
deviation would substantially outweigh any detriment." N.J.S.A. 40:55D -
70(c)(1). Defendants aptly rely on Price. There, our Supreme Court declined
to reverse a zoning board's determinations for a bulk variance because while
"the Board referred to the [bulk] variances as being subsumed in the
consideration of the [use] variances, the record of the Board's review of the
building's overall design amply supports its decision" to grant the bulk
variances. 214 N.J. at 301. Several of 319 Penn's experts, most notably its
planner, opined the proposed development's benefits would outweigh its
detriments, citing the numerous improvements it would make to the surrounding
neighborhood and master plan objectives it would promote. As she recognized,
the characteristics favoring the requested use variances also supported the bulk
variances.
As to the design waivers, a zoning board may grant design waivers when
approving a site plan "as may be reasonable and within the general purpose and
intent of the [zoning ordinance's] provisions for site plan review . . . if the literal
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enforcement of one or more provisions of the ordinance is impracticable or will
exact undue hardship because of peculiar conditions pertaining to the land in
question." N.J.S.A. 40:55D-51(b). 319 Penn's planner and traffic engineer
equally addressed these criteria. The planning expert distinguished the property
from surrounding lots, explaining the permitted uses for the Mixed Use District
were not suitable for it. The traffic engineer explained the property's location
near four streets allowed traffic to disperse in different directions throughout the
day, creating specific traffic challenges that the application would address.
Finally, the Board's resolution in not citing the site plan approval
requirements was not inadequate because they largely involve compliance with
various local, state, or federal laws. Paterson, N.J., Code ch. 483, art. III, § 300-
6.5(B). The Board's conditions for approval included 319 Penn obtaining the
necessary approvals from relevant local or state authorities in compliance with
state and federal laws as well as other local ordinances. The trial court correctly
observed 319 Penn also sought waivers from other site plan approval
requirements, which the Board granted with the rest of the application. Plaintiffs
do not claim this waiver was invalid.
5. The Board's Resolution
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Plaintiffs contend the Board's resolution was inadequate and should be
voided as it set forth "no findings and conclusions concerning special reasons
for the granting of the use variance" and no factual findings as to particular
suitability, the intent and purpose of the zoning ordinance or master plan,
positive or negative criteria for granting use variances, or 319 Penn's
"compliance with the Site Plan Ordinance for preliminary and final site plan
approval." They argue the resolution's "whereas" clauses are not findings
because they merely recite testimony and comments from the hearing.
Defendants contend the resolution properly detailed the application, all
witnesses' testimony, the exhibits, remarks made by members of the public, the
Board's concerns and 319 Penn's representations in response, and the city
planner's concerns and recommended conditions. Defendants assert the positive
and negative criteria for use variances were set forth in the resolution.
The MLUL requires a zoning board's resolution memorialize variance and
site approval decisions in a resolution setting forth the factual findings and legal
conclusions supporting the decision. N.J.S.A. 40:55D-10(g). The resolution
cannot simply recite "testimony or conclusory statements couched in statutory
language." N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, 370 N.J. Super. 319,
332-33 (App. Div. 2004). Instead, it "must contain sufficient findings, based on
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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 ordinances." Ibid.The Board's resolution appropriately identified specific facts and details
from 319 Penn's proposed development plan and its experts' testimony
supporting the application. It also acknowledged several Board members and
the public had raised specific concerns about the proposed development,
detailing those concerns separately in the resolution.
We agree with plaintiffs that the resolution does not address each variance
individually or show which facts supported which statutory criteria, instead
analyzing the application as a whole. See Com. Realty & Res. Corp. v. First
Atl. Props. Co., 122 N.J. 546, 566 (1991). In particular, the resolution does not
mention the height variance among the variances 319 Penn requested, despite
being addressed at the hearing. Nor does it mention the traffic engineer's
qualifications or confirm the Board accepted him as an expert, even though the
resolution discusses his testimony. Nevertheless, considering the extensive
hearing testimony, the Board's decision granting the application is sufficiently
supported, and there is no need to remand for an amplified resolution. See id.A remand would unnecessarily delay this development project. See R. 1:1-2(a).
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Affirmed.
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