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

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2328-15T1
BRUCE A. PATERSON, ILEEN
CUCCARO, HORACE CORBIN and
DAVID CORBIN,
Plaintiffs-Respondents,
v.
THE COMBINED PLANNING BOARD/
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF GARWOOD,
Defendant-Respondent,
and
ANGELA VILLARAUT and SANDRO
VILLARAUT,
Defendants-Appellants.
________________________________
Argued June 6, 2017 – Decided June 28, 2017
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-3224-
14.
Stephen F. Hehl argued the cause for
appellants (Hehl & Hehl, P.C., attorneys; Mr.
Hehl, of counsel and on the brief; Cory Klein,
on the brief).
John DeNoia argued the cause for respondents
Bruce A. Paterson, Ileen Cuccaro, Horace
Corbin and David Corbin (Kochanski, Baron &
Galfy, P.C., attorneys; Mr. DeNoia, on the
brief).
New Jersey State Bar Association, amicus
curiae (Thomas H. Prol, Howard D. Geneslaw,
Cameron W. MacLeod, and Michael D. DeLoreto,
on the brief).
Respondent The Combined Planning Board/Zoning
Board of Adjustment of the Borough of Garwood
has not filed a brief.
PER CURIAM
Defendants Sandro Villaraut and Angela Villaraut (the
Villarauts) appeal from an order entered by the Law Division on
November 4, 2015, which reversed a decision by the Combined
Planning Board and Zoning Board of Adjustment of the Borough of
Garwood (Board), and remanded the matter to the Board for a new
hearing. The Villarauts also appeal from an order entered by the
court on January 19, 2016, denying their motion for
reconsideration. We affirm in part, reverse in part, and remand
the matter to the Board for further fact-finding.
I.
The Villarauts are the owners of approximately one acre of
land in the Borough of Garwood. The property is located in the
Borough's RA zone, where single-family residences are permitted
uses but multi-family uses are not. On March 4, 2014, the
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Villarauts filed an application with the Board seeking a use
variance to permit the construction on the property of a multi-
family development consisting of four three-bedroom and five two-
bedroom townhouses.
The Villarauts also sought bulk variances for building
height, floor area, and density for the development. The Villarauts
bifurcated their application and initially sought only the use and
bulk variances, reserving the site plan application for a later
date depending on whether the Board granted the variances.
On May 8, 2014, notice of a public hearing on the application
was published in The Westfield Leader, a newspaper distributed in
Garwood and other municipalities. Notices also were mailed to the
owners of properties within two-hundred feet of the site of the
proposed development.
The notices stated that on May 28, 2014, at 7:30 p.m., the
Board would be considering an application for use and bulk
variances for the proposed construction of nine multi-family units
in the RA zone where multi-family uses are not permitted. The
notices identified the property involved.
The notices also stated that variance relief was being sought
from the zoning restrictions for maximum floor area, the number
of units permitted per acre, and the principal building height,
as well as such other restrictions as may be required. The notices
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informed the public and neighboring property owners that they
could appear at the scheduled hearing and present any objections
they may have to the application.
On May 28, 2014, the Board held a public hearing on the
application. At the start of the hearing, counsel for the
Villarauts explained the variances that were being sought and
stated that the Villarauts would be willing to commit to
restricting occupancy in the proposed development to persons who
are aged fifty-five years or older. Counsel for the Villarauts
then presented expert testimony in support of the application from
professional engineer Thomas J. Quinn, traffic engineer Joseph J.
Staigar, architect Glenn Potter, and professional planner John
McDonough.
Quinn discussed the proposed height of the buildings, noting
that the buildings would have a height of thirty-six feet, which
exceeds the existing thirty-foot limit. Quinn also discussed the
density and floor-area ratio of the structures. He stated that the
proposed residential use would eliminate the current non-
conforming use on the property, and bring the property more into
conformity with the intent of the Borough's zoning ordinance.
Quinn asserted that the property could accommodate the proposed
development.
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Staigar discussed the traffic-impact study that he prepared
with regard to the proposed development. He reviewed the existing
roadways and traffic conditions in the area, and estimated the
volume of traffic the proposed development is expected to generate.
Staigar said he did not believe the proposed development would
have a negative impact upon traffic. He noted that age-restricted
townhouses would have less of an impact on traffic than dwellings
that are not age-restricted. Staigar also discussed the safety of
the proposed entrances and exits for traffic in the development.
Potter testified as to the size and interior configurations
of the proposed buildings. Potter noted that the buildings each
would be three stories tall. In addition, McDonough testified
about the property, the location, and the development's proximity
to the local train station. He discussed the purposes of zoning,
and stated that granting the variances would advance several of
those purposes.
The Board then gave members of the public an opportunity to
comment. Four residents opposed the application. They expressed
concerns about traffic, whether the project complied with the
Borough's master plan, the run-off of water from the site, and
whether the development was appropriate for the location. Those
who opposed the application did not present any expert testimony.
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The Board voted to approve the application, but conditioned
the approval upon restricting occupancy in the townhouses to
persons aged fifty-five years or older. Plaintiffs Bruce A.
Paterson and Ileen Cuccaro were members of the Board that
considered the application. Paterson voted against the
application, and Cuccaro recused herself from the matter.
Thereafter, the Board memorialized its decision in a
resolution dated July 23, 2014. In the resolution, the Board
summarized the expert testimony and the comments of the public.
The Board credited the testimony presented by Quinn, Staigar,
Potter, and McDonough.
The Board found that special reasons existed for the proposed
use variance, and that the project would be consistent with the
Borough's master plan. The Board also found that the development
would improve the aesthetics of the property, and it would have
little negative impact upon the surrounding properties or upon the
Borough's zone plan or zoning ordinance. In addition, the Board
found that strict application of the zoning ordinance would result
in a hardship to defendants.
II.
On September 8, 2014, plaintiffs filed an action in lieu of
prerogative writs in the Law Division, alleging that the notice
of the hearing on the application did not comply with the Municipal
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Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, because the notice
mischaracterized the nature of the relief sought. Plaintiffs also
alleged that the Board's resolution was "insufficient" because it
did not make the required findings of fact or "special reasons"
required to obtain the use variance.
The Law Division judge conducted a hearing in the matter on
October 14, 2015. The parties agreed that plaintiffs Horace Corbin
and David Corbin had standing to challenge the Board's decision.
Therefore, the court did not address whether Paterson and Cuccaro
also had standing to maintain this action.
The judge filed an order dated November 4, 2015, reversing
the Board's decision and remanding the matter to the Board for
further proceedings. In an accompanying statement of reasons, the
judge noted that the MLUL requires that the notice of the hearing
state, among other things, "the nature of the matters to be
considered." N.J.S.A. 40:55D-11.
The parties did not present the court with a copy of the
actual notice used, but they agreed that the notice set forth the
date, time, and place of the hearing. The notice also identified
the property involved, and the location and time when maps and
documents pertaining to the application would be available for
inspection.
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The judge found that the notice of the hearing did not comply
with N.J.S.A. 40:55D-11 because it failed to inform the public or
neighboring property owners that occupancy in the townhouses would
be age-restricted. The judge stated that the reference in the
notice to multi-family townhouses was not specific enough to inform
the public and affected property owners of the proposed use.
The judge wrote that, "[i]f the public and nearby property
owners had been properly apprised, it is reasonable to believe
that additional individuals may have attended this meeting to
object to the use." The judge decided that the matter must be
remanded to the Board for a new hearing with proper notice.
The judge also discussed the sufficiency of the Board's
resolution, "so that if the matter is presented again, the
deficiencies can be corrected." The judge stated that the Board's
factual findings regarding the grant of the use variance were
insufficient because they were conclusory. The judge stated that
the Board should specify those findings of fact that apply to the
positive and negative criteria for the variance "and explain the
rationale behind these conclusions."
On November 24, 2015, the Villarauts filed a motion for
reconsideration. They presented the court with a copy of the notice
used, and argued that the judge erred by finding that the hearing
notice was deficient. On January 8, 2016, the judge heard oral
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argument on the motion, and on January 19, 2016, the judge filed
an order denying the motion, with an accompanying statement of
reasons. The judge determined that there was no basis for
reconsideration of her prior order. This appeal followed.
III.
On appeal, the Villarauts argue that: (1) the trial court
erred by finding that the notice of the hearing did not comply
with N.J.S.A. 40:55D-11; (2) the judge misapplied Pond Run
Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment,
397 N.J. Super. 335 (App. Div. 2008), by holding that the hearing
notice was defective; (3) the notice of the hearing does not have
to inform the public of the potentially limitless number of
mitigating conditions a Board might impose upon approval of a
variance; (4) imposition of an age restriction on occupancy does
not render the hearing a nullity; (5) it is irrelevant when the
age restriction first arose, provided the Board adequately
considered the condition; (6) in ruling on the adequacy of notice,
the court must consider the actual form of notice employed; (7)
in deciding that the notice was deficient, the court improperly
considered whether members of the public could have prepared for
the hearing differently; (8) neither plaintiffs nor the trial
court identified any actual or hypothetical concern with the age
restriction, which was a mitigating condition designed to lessen
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public concern; (9) existence of members of the public who might
be interested in purchasing a residential unit is not relevant to
determining whether the notice was adequate; (10) plaintiffs
waived their right to challenge the notice because a number of
plaintiffs attended the hearing; (11) the hearing notice was
sufficient because the age restriction relates to ownership and
occupancy and was irrelevant to the proposed use from a municipal-
land-use-notice perspective; (12) occupancy of the units could
have been restricted at any time without the need for Board
approval; and (13) this court should exercise original
jurisdiction and affirm the Board's grant of the variances because
the Board's decision was not arbitrary, capricious, or
unreasonable.
We granted the New Jersey State Bar Association (NJSBA) leave
to appear in this appeal as amicus curiae. The NJSBA argues that:
(1) the trial court erred by imposing notice requirements that are
more stringent than those provided in the MLUL; (2) the court
failed to recognize that securing land use approvals is a process
that requires a dialogue between a developer, the Board, and the
public in a limited time period; and (3) the court's decision will
undermine the finality and repose generally accorded to land use
approvals.
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In response to these arguments, plaintiffs argue that the
trial court correctly determined that the hearing notice was
deficient because the public and neighboring property owners were
not informed that the proposed use would be age-restricted. They
further argue that the Board's findings of fact were inadequate.
IV.
We turn first to the Villarauts' argument that the trial
court erred by finding that the hearing notice did not comply with
N.J.S.A. 40:55D-11. The Villarauts contend that the notice met the
statutory requirements because in addition to the required
information about the hearing, the notice informed the public and
neighboring property owners of the nature and character of the
application that the Board would be considering. They argue that
the notice did not have to refer to the fact that occupancy in the
proposed townhouses would be age-restricted.
When reviewing a trial court's decision regarding the
validity of a local board's determination, "we are bound by the
same standards as was the trial court." Fallone Props., L.L.C. v.
Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div.
2004). Generally, a court must give deference to the actions and
factual findings of local boards and may not disturb such findings
unless they are arbitrary, capricious, or unreasonable. Id. at
560. A board's decision must be based on substantial evidence in
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the record. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172
N.J. 75, 89 (2002). We review any issue of law de novo. Wilson v.
Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197
(App. Div. 2009).
It is undisputed that the MLUL required the Board to give the
public and owners of properties within two-hundred feet of the
property involved notice of the hearing at which the Villarauts'
application would be considered. N.J.S.A. 40:55D-12(b). The MLUL
requires that the notice
state the date, time and place of the hearing,
the nature of the matters to be considered
and, in the case of notices pursuant to
[N.J.S.A. 40:55D-12] of this act, an
identification of the property proposed for
development by street address, if any, or by
reference to lot and block numbers as shown
on the current tax duplicate in the municipal
tax assessor's office, and the location and
times at which any maps and documents for
which approval is sought are available
pursuant to [N.J.S.A. 40:55D-10(b)].
[N.J.S.A. 40:55D-11.]
It is well established that public notice in accordance with
the MLUL "is a jurisdictional prerequisite for a zoning board's
exercise of its authority." Pond Run, supra, 397 N.J. Super. at
350. The notice must "fairly apprise" the public and neighboring
property owners of the "nature and character of the proposed
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development." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd.,
295 N.J. Super. 234, 237 (App. Div. 1996).
Here, the Board provided the following notice to the public
and owners of property within two-hundred feet of the subject
property:
PLEASE TAKE NOTICE, that on Wednesday, May 28,
2014 at 7:30PM in the Borough of Garwood
Municipal Building, Council Chambers, . . . a
PUBLIC HEARING will be held by the [Board] for
use and bulk variance approvals (Sections 106-
91B: multi-family use not permitted in RA
Zone; 106-91C(8): maximum floor area – [3500]
sf. permitted, 27,020 sf. proposed; 106-91A:
density – 8 units per acre permitted, 9 units
per acre proposed; 106-91C(5): principal
building height – 2.5 stories/30 ft. maximum,
3 stories/36 ft. proposed) and such other
variances, relief and/or waivers that may be
required upon an analysis of the plans and
testimony at the PUBLIC HEARING on the
bifurcated Application submitted by the
Applicants/Owners . . . .
The notice "fairly apprised" the public and neighboring property
owners with information concerning the "nature and character of
the proposed development." Ibid.The notice made clear that the applicant was seeking to
construct multi-family structures on property zoned for
residential single-family dwellings. The notice detailed the
number of structures proposed for construction, and informed the
public that variances were being sought from zoning requirements
for building height, number of stories, and maximum floor area.
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The notice described the proposed structures and informed the
public of the extent to which the structures deviated from the
zoning requirements for which the variances were sought.
As noted, the judge found that the notice was deficient
because it did not state that occupancy in the proposed development
would be restricted to persons aged fifty-five years or older.
However, the fact that the units will be age-restricted does not
raise a "heightened concern" to the public regarding the
application. Shakoor Supermarkets, Inc. v. Old Bridge Twp.
Planning Bd., 420 N.J. Super. 193, 203 (App. Div.), certif. denied,
208 N.J. 598 (2011). Indeed, the restriction of occupancy to
persons aged fifty-five or older would not affect the essential
use of the property for multi-family structures. The age
restriction also would not affect the number of buildings to be
constructed, or the other building features for which variances
were requested.
Our decision in Pond Run does not compel a different result.
In that case, we determined that a notice of a hearing was
deficient because it informed the public that the zoning board
would be considering an application for a variance for
"retail/office" uses, while the proposed development included
plans for a large sit-down restaurant that would seek a liquor
license. Pond Run, supra, 397 N.J. Super. at 352.
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We found the "generic reference" in the notice to
"retail/office uses" did not "reasonably put a neighbor, or an
interested resident, on notice that a substantial restaurant was
contemplated for the site." Id. at 352-53. We observed that the
proposed restaurant would be open seven days per week until ten
or eleven o'clock at night and that the restaurant was not an
accessory use of any other building in the proposal. Id. at 353.
The concerns we expressed in Pond Run as to the notice are
not present in this case. As we have explained, the notice of the
hearing fairly apprised the public and neighboring property owners
of the nature and character of the proposed use and the variances
requested.
Our decision in Shakoor Supermarkets supports our conclusion
that the notice used here met the requirements of N.J.S.A. 40:55D-
11. In that case, the applicant sought site plan approval for the
construction of a retail store of 150,000 square feet. Shakoor
Supermarkets, supra, 420 N.J. Super. at 196. The notice did not,
however, identify the store as a Walmart. Ibid. We found that the
notice met the statutory requirements. Id. at 203.
We emphasized that a hearing notice does not have to be
exhaustive. Id. at 201 (citing Perlmart, supra, 295 N.J. Super.
at 239). The notice need only provide a "common sense description
of the nature of the application, such that the ordinary layperson
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could understand its potential impact upon him or her." Ibid.(quoting Perlmart, supra, 295 N.J. Super. at 239).
We concluded that the notice adequately informed the public
that a major "big box" store was proposed for the site, and alerted
the public to concerns typically associated with such stores. Id.
at 203. We stated that none of the uses anticipated for the store
raised any "heightened concern" for the public. Ibid. (quoting
Pond Run, supra, 397 N.J. Super. at 354).
Here, the same conclusion applies. The hearing notice
provided a common sense description of the proposed development
and its impact. The limitation of occupancy to persons aged fifty-
five or older did not raise a "heightened concern" for the public
as to the proposed use. Indeed, as the evidence presented at the
hearing showed, age-restricted multi-family dwellings are likely
to have less impact upon the community than dwellings without such
restrictions.
We conclude that that the hearing notice used here complied
with the requirements of N.J.S.A. 40:55D-11. In view of our
decision, we need not consider the other issues raised by the
Villarauts and the NJSBA regarding the notice.
V.
The Villarauts note that because the trial court ruled that
the hearing notice was inadequate, the court did not determine
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whether the Board's decision to grant the application complied
with the MLUL. The Villarauts therefore argue that we should
exercise original jurisdiction and address this issue.
Rule 2:10-5 provides that "[t]he appellate court may exercise
such original jurisdiction as is necessary to complete
determination of any matter on review." We may exercise such
jurisdiction "when there is 'public interest in an expeditious
disposition of the significant issues raised[.]'" Price v. Himeji,
LLC, 214 N.J. 263, 294 (2013) (quoting Karins v. City of Atlantic
City, 152 N.J. 532, 540-41 (1998)). Original jurisdiction also may
be exercised "to eliminate unnecessary further litigation." Ibid.We are convinced, however, that the exercise of original
jurisdiction in this matter would not be appropriate.
As we noted previously, the Law Division judge stated that
the Board failed to provide adequate findings of fact to support
its decision granting the variances. We agree with the judge's
assessment of the Board's findings, and conclude that more detailed
fact-findings are necessary.
In this matter, the Villarauts sought variance relief
pursuant to N.J.S.A. 40:55D-70(d), which provides that a board of
adjustment has the power
[i]n particular cases for special reasons,
[to] grant a variance to allow departure from
[zoning] regulations . . . to permit: (1) a
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use or principal structure in a district
restricted against such use or principal
structure . . . .
. . . .
No variance or other relief may be granted
under the terms of this section, including a
variance or other relief involving an
inherently beneficial use, without a showing
that such variance or other relief can be
granted without substantial detriment to the
public good and will not substantially impair
the intent and the purpose of the zone plan
and zoning ordinance.
In Medici v. BPR Co., 107 N.J. 1, 21 (1987), the Court stated
that the grant of a use variance requires "an enhanced quality of
proof and clear and specific findings by the board of adjustment
that the variance sought is not inconsistent with the intent and
purpose of the master plan and zoning ordinance." The Court also
stated that the applicant's proofs and the board's findings must
reconcile the proposed use with its omission of the uses permitted
in the applicable zoning district. Ibid.The Court observed that, when a use variance is challenged,
"a conclusory resolution that merely recites the statutory
language will be vulnerable to the contention that the negative
criteria have not been adequately established." Id. at 23.
Conclusory findings in the resolution will not reflect "the
deliberative and specific determination" required to satisfy the
negative criteria. Id. at 25.
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In her statement of reasons, the Law Division judge wrote
that the Board's resolution in this case
states special reasons exist for the proposed
use variance. While the [r]esolution
incorporates [ninety-four] points of
testimony, this conclusory statement alone
regarding special uses is insufficient. The
[r]esolution also states in a conclusory
fashion: that the proposed use is not
inconsistent with the master plan of Garwood,
there will be improvements to the aesthetics
of the property, little if any negative impact
upon the surrounding properties, or upon the
zone plan or the zoning ordinances, and a
hardship to applicant would result from the
strict application of the zoning ordinance.
While these statements may be supported by the
record before the Board, the [r]esolution's
conclusions should specify which findings of
fact apply to the positive and negative
criteria for the variance and explain the
rationale behind those conclusions. As stated
in Medici, a conclusory statement that merely
recites the statutory language is vulnerable
to the contention that the criteria have not
been adequately establish[ed].
We agree with the judge's conclusion that the Board's
resolution lacks the fact-finding required by Medici. We therefore
affirm the provision of the trial court's November 4, 2016 order
remanding the matter to the Board, but limit the remand to further
fact-finding. On remand, the Board shall issue a new resolution,
setting forth specific findings of fact to support its decision.
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Affirmed in part, reversed in part, and remanded to the Board
for further proceedings in conformity with this opinion. We do not
retain jurisdiction.
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