BERGEN RIDGE HOMEOWNERS ASSOCIATION, INC. VS. TOWNSHIP OF NORTH BERGEN PLANNING BOARD (L-1791-14, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0206-15T1
BERGEN RIDGE HOMEOWNERS
ASSOCIATION, INC.,
Plaintiff-Appellant,
v.
TOWNSHIP OF NORTH BERGEN
PLANNING BOARD, RIVERVIEW
DEVELOPMENT, LLC and TOWNSHIP
OF NORTH BERGEN,
Defendants-Respondents.
_____________________________
Argued March 1, 2018 – Decided August 30, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-1791-14.
Ira E. Weiner argued the cause for appellant
(Beattie Padovano, LLC, attorneys; Ira E.
Weiner and John J. Lamb, of counsel and on the
brief; Daniel L. Steinhagen, on the brief).
John R. Dineen argued the cause for respondent
North Bergen Planning Board (Netchert, Dineen
& Hillmann, attorneys; John R. Dineen, on the
brief).
Jeffrey A. Zenn argued the cause for
respondent Riverview Development, LLC (Cullen
& Dykman LLP, attorneys; Jeffrey A. Zenn, on
the brief).
Cindy Nan Vogelman argued the cause for
respondent Township of North Bergen (Chasan
Lamparello Mallon & Cappuzzo, PC, attorneys;
Cindy Nan Vogelman, of counsel and on the
brief; Qing H. Guo, on the brief).
PER CURIAM
In this prerogative writs matter, plaintiff Bergen Ridge
Homeowners Association, Inc. appeals from the July 27, 2015 Law
Division order for judgment, which affirmed the decision of
defendant Township of North Bergen Planning Board (Board) to grant
the application of defendant Riverview Development, LLC
(Riverview) to build a multi-family apartment building with
underground parking on a site bordering the Hudson River. For the
following reasons, we affirm.
I.
In May 2005, Riverview acquired Block 438, Lots 4A and 4B,
and part of Lot 1 in the township (the property), a vacant lot at
8200 River Road bordering the Hudson River.1 Because of the
1
Plaintiff does not challenge Riverview's title to Lot 1.
2 A-0206-15T1
shoreline, the 26.37-acre site was irregularly shaped and
contained 19.7 under-water acres and only 6.07 uplands.2 The
property changed depths at multiple points; for example, its widest
part ranged from ninety to 420 feet with a midpoint depth of 260
feet. It was located in the P-1 (river front) zone. When Riverview
purchased the property, it contracted with defendant Township of
North Bergen (Township) to provide fifty parking spaces for use
by nearby residents at a monthly rental fee.
In 2006, Riverview filed a site plan application3 to construct
a single building with three nine-story towers containing 2334
residential units. The project included a three-story structure
less than fifty feet in height, with two floors of enclosed parking
with 537 spaces built underneath a common area with lobbies, a
fitness room, a lounge, and offices. The three residential towers
would be built on top of this three-story structure.
The project also included a .6 acre park area with a sixteen-
foot wide public walkway bordering the river. The total building
footprint was 2.83 acres. The project had three driveways
2
The property also contained land designated to become part of
a county roadway.
3
The Township rejected an earlier application because Riverview
failed to apply for a building coverage variance.
4
The original application requested 256 units, but twenty-three
townhouses were ultimately removed from the plan.
3 A-0206-15T1
including one bordering an undeveloped tract in the neighboring
Borough of Edgewater.
Township of North Bergen Zoning Ordinance (NBZO) 11.2(d)(1)
required residential and office buildings along the waterfront to
have their longest dimension in an east-west orientation, or
perpendicular to the water, in order to maximize views of the
river and the New York skyline. The project's three-story
structure was oriented with its longest dimension in a north-south
direction, in violation of the ordinance. However, the residential
towers built on top of the three-story structure were oriented
with their longest dimension in an east-west direction, in
compliance with the ordinance.
To further protect views of the river, NBZO 11.4 required
"view corridors" of at least fifty feet in width positioned at the
ends of streets perpendicular to the river. Within the view
corridors, no building could exceed five stories or fifty feet in
height. Riverview's project included view corridors that were 250
feet wide.
NBZO 11.3(a)(3) and Table 3.10.a, supplementing NBZO 3.10(a),
provided that in the P-1 zone, the maximum permitted building
coverage was 35% of the lot, excluding lands under water. Building
coverage is the percentage of the area of a lot covered by a
building or any part of a building. Riverview's proposed building
4 A-0206-15T1
coverage was 46.6%, including the parking garage. Table 3.10.a
permitted seventy-five dwelling units per acre but Riverview
proposed only forty-three per acre. Table 3.10.a required a ten-
foot landscaped buffer at the side edge of the property. At the
northern property line, the project included only a three-foot
landscaped buffer.5
NBZO 7.1(b)(4)(d) provides that aggregate lighting in parking
areas should be no more than two "foot-candles"6 and should not
shine on adjacent properties. At the property line, lighting
intensity at ground level should be less than .1 foot-candle.
NBZO 10.4(a) required the Board to make timely decisions on
site plan applications. NBZO 10 required the Board to make
findings about compliance with Township ordinances and the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, the
adequacy of open space, provisions for public services, vehicular
and pedestrian traffic, light and air, recreation and physical
enjoyment, and the development's impact on the area.
In the P-1 zone, the Township permitted planned unit
residential developments (PURD) defined as:
[a]n area . . . with a minimum contiguous
acreage of five (5) acres, to be developed
5
Ultimately, Riverview's landscaped buffer on the northern border
was omitted entirely.
6
Defined as a "unit of illuminance or light intensity."
5 A-0206-15T1
according to a plan as a single entity
containing one or more residential clusters,
which may include appropriate commercial or
public or quasi-public uses, all primarily for
the benefit of the residential development
. . . .
Off-street parking was a permitted accessory use in the P-1 zone
if it served residents of the planned development.
In June 2006, the Board held its first hearing. On October
23, 2006, the New Jersey Department of Environmental Protection
(DEP) granted Riverview a permit to engage in waterfront
development but later, apparently, withdrew it. See In Re
Riverview Dev., LLC, Waterfront Dev. Permit No. 0908-05-0004.3 WFD
060001, 411 N.J. Super. 409, 418-23 (App. Div. 2010) (discussing
the DEP permit).
On December 20, 2006, the Township adopted Ordinance 1085-06
(O-1085-06), which provided that an applicant for site plan
approval could request a "special meeting" devoted exclusively to
its application, to be scheduled at the Board's discretion. The
fee for a special meeting was $2000. Riverview requested special
meetings, and the Board agreed because extensive testimony was
required.
On July 9, 2007, plaintiff's counsel discovered the Township
was using Riverview's escrow account to pay Board members for
attending special meetings. On July 17 and 24, 2007, plaintiff's
6 A-0206-15T1
counsel protested the payments, asserting they created a conflict
of interest and an appearance of impropriety.
On September 12, 2007, the Township adopted Ordinance 1106-
07 (O-1106-07), which increased special meeting attendance fees
for Board members from $100 to $150. Payment would be made from
the applicant's escrow fund using the $2000 special meeting fee.
Board members were also entitled to payment if the applicant gave
a less than seventy-two-hours cancellation notice of a special
meeting. As of September 2007, Board members were paid for
attending twelve special meetings in this matter, including three
that were cancelled.
On February 14, 2008, plaintiff's counsel argued the Board
lacked jurisdiction to grant a variance for the parking spaces
designated for the Township because Township residents who did not
reside at Riverview would be charged a fee to use the spaces, but
parking garages were not permitted in the P-1 zone. Plaintiff's
counsel asserted that a use variance was necessary, which could
only be granted by the Zoning Board of Adjustment.
At the hearings on Riverview's application, Adam Remick,
Riverview's engineer, testified the project complied with most
Township requirements, including lot dimensions, impervious area
coverage, side yard setback, density, building height, landscaped
areas, open space and parking, and the project's landscaping and
7 A-0206-15T1
open space exceeded Township requirements. Remick opined the
project only required variances for lighting and building
coverage.
At a special meeting, Remick testified that while the lighting
would generally comply with the .1-foot-candle requirement at the
property line, for safety reasons lighting would be increased to
2.2 foot-candles at three driveway locations, and cutoff shields
would be provided to limit light spillage onto adjacent property.
The Board's engineer, Derek McGrath, agreed with Remick that
light spillage at those locations would be de minimis. However,
he opined that Riverview should rectify future lighting problems
that might arise when the neighboring property in Edgewater was
developed.
Riverview's professional planner, Daniel McSweeney, testified
that each tower would have its widest portion oriented east-west
in compliance with the Township ordinance, but the parking garage
would not be oriented east-west. However, he did not believe a
building orientation variance (BOV) was necessary because within
the view corridor area, Riverview was meeting the intent and spirit
of the ordinance. He opined that a hardship variance was
appropriate because of the irregularly shaped property and the
fact that nineteen acres were underwater. He also opined the
project met the negative criteria and all Township requirements
8 A-0206-15T1
for impervious coverage and open space, and only a variance for
building coverage was necessary.
McSweeney also discussed the landscaped buffer on the
northern edge of the property, which was three-feet wide instead
of the ten-feet required by Table 3.10.a. The full buffer was not
possible because space was needed for daily garbage removal in
that area. Also, the landscaped buffer was not crucial because
the project exceeded the Township's open air requirements.
A professional engineer, Robert Foley, agreed with McSweeney
that there was no room for the ten-foot landscaped buffer on the
northern border of the property; however, in that location, the
project would instead include an eight-foot wide sidewalk leading
to the river walkway. The landscaped buffer at the northern border
was ultimately eliminated completely from the project and replaced
with a wide sidewalk leading to the river.
A real estate appraiser, Donald Helmstter, prepared a report
that calculated the value of plaintiff's townhouses before and
after the development. Helmstetter testified that before the
development, plaintiff's townhouses, with unobstructed views, were
valued at approximately $825,000 for a two-family unit and $1
million for a three-family unit. After the development, with
obstructed views, he calculated the price of a two-family unit at
only $625,000 and a three-family unit at $725,000, an average loss
9 A-0206-15T1
of $200,000 per unit.
Plaintiff's planner, Peter Steck, clarified that preserving
views of the Hudson River and the New York skyline was a goal of
the Township's master plan, the 2003 master plan reexamination
report, and Township zoning ordinances. Steck cited the master
plan's statement that the waterfront is a "significant and unique
resource" which should be developed in a manner which "benefits
the entire community" and efforts should be made "to ensure visual
and physical access" to it.
An architect, Robert Siegel, testified that the project was
designed with any eye toward protecting views of the river. In
addition, cars and garbage removal would not be visible because
of where the parking garage was located.
Traffic and parking experts included: Michael Maris, Nicholas
Verderese, Ronald Reinersten, Brian Collins, and Denis Molner.
Other experts included Adrian Figueroa, an architect, Mike
Cotreau, a view corridor expert, Stephen Borghi, a landscape
architect, John Thonet, a civil engineer, and Gordon Hamm, a valet
parking expert.
In its March 4, 2014 resolution, the Board made the following
findings: the project complied with Township ordinances concerning
the view corridor; the positives outweighed any detriment to the
Township's master plan; the building orientation ordinance was
10 A-0206-15T1
meant to protect the view of the New York skyline; an eye-level
view of the river would be available from the river walkway; a BOV
was not necessary; if a BOV was necessary, it should be granted
pursuant to N.J.S.A. 40:55D-70(c)1 and 2; a lighting variance was
appropriate under N.J.S.A. 40:55D-70(c)2; variances were
appropriate for the number and size of parking spaces; lighting
intensity of 2.2 foot-candles was necessary for security reasons;
Riverview would cooperate with Township's professionals to reduce
light spillover to the neighboring property; the purpose of the
P-1 zone was "to enhance the waterfront of the Township and to
ensure visual and physical access to [it];" the MLUL permits
granting of variances when specific conditions have been met; the
project represented no substantial detriment to the master plan;
the towers would affect the views of the New York skyline even
though they were oriented in the proper direction and in compliance
with Township ordinances; the ten-foot landscaped buffer at the
northern border was not necessary because instead, a better
planning alternative was an eight-foot sidewalk accessing the
riverfront.
In a lengthy document of more than 120 pages, the Board
summarized all the evidence it relied on, including expert
opinions, the examination and cross-examination of witnesses, and
the documents presented.
11 A-0206-15T1
II.
By 2014, Riverview paid a total of $35,750 for Board members'
attendance at thirty-nine special meetings. In count fourteen of
its amended complaint, plaintiff alleged that payment of special
meeting fees constituted a conflict of interest and/or appearance
of impropriety and a violation of the MLUL. In count fifteen,
plaintiff alleged, in part, that O-1106-07 is unconstitutional as
applied based on the required payment for attendance at special
meetings.
The trial judge granted summary judgment to defendants and
dismissed counts fourteen and fifteen. On appeal, plaintiff
contends the judge erred in granting summary judgment because the
special meeting payments tainted the proceedings with the
appearance of impropriety and a conflict of interest, and O-1106-
07 was ultra vires and illegal.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Conley v.
Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the
trial judge did, "'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.'"
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436,
445-46 (2007) (quoting Brill v. Guardian Life Ins. Co., 142 N.J.
12 A-0206-15T1
520, 536 (1995)). Summary judgment must be granted "'if the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law.'" Templo Fuente De Vida Corp. v. National Union Fire Ins.
Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence that creates a genuine issue of
material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory
and self-serving assertions by one of the parties are insufficient
to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citations omitted).
If there is no genuine issue of material fact, we must then
"decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We
review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013). "[F]or mixed questions of law and fact, [an appellate
court] give[s] deference . . . to the supported factual findings
13 A-0206-15T1
of the trial court, but review[s] de novo the lower court's
application of any legal rules to such factual findings." State
v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).
Applying the above standards, we discern no reason to reverse the
grant of summary judgment.
The judge found that the payment of special meeting fees did
not create a conflict of interest or an appearance of impropriety,
and O-1106-07 was consistent with N.J.S.A. 40:55D-8, which
provides, in pertinent part:
a. Every municipal agency shall adopt and
may amend reasonable rules and regulations,
. . . for the administration of its functions,
powers and duties . . . .
b. Fees to be charged (1) an applicant for
review of an application for development by a
municipal agency, and (2) an applicant
pursuant to section 8 of this act shall be
reasonable and shall be established by
ordinance.
The judge found no nexus between paying of special meeting fees
and the Board's grant of the application.
The judge cited to Galaxy Towers Condominium Ass'n v. Township
of North Bergen Planning Board, No. L-2952-13, where he addressed
the identical issue. The judge found the payment of special
meeting fees to Board members was acceptable according to N.J.S.A.
40:55D-8(b) and necessary to address the backlog of applications,
given that the Board only met once per month. We affirmed, quoting
14 A-0206-15T1
the judge as follows:
The special meetings in this case were
necessary to elicit additional testimony from
witnesses following remand . . . . Indeed, the
complexity of the instant application should
not be overlooked. The stipend is necessary
to encourage attendance and to hear
applications that may otherwise be
impracticable to consider with the regularly
scheduled Board meetings alone.
[Galaxy Towers Condo. Ass'n v. Twp. of N.
Bergen Planning Bd., Nos. A-3583-13, A-0184-
14, A-0519-14 (App. Div. Aug. 8, 2016) (slip
op. at 27).]
Accordingly, the payment of special meeting fees was proper in
this case and did not create a conflict of interest or appearance
of impropriety.
Nevertheless, plaintiff contends that O-1106-07, which
authorized the payment, was ultra vires and illegal because the
MLUL does not authorize payments to Board members for attending
special meetings. Plaintiff argues that N.J.S.A. 40:55D-53.2
specifically prohibits payments to Board members because the
statute provides that no municipal expense may be charged to a
developer's escrow account except what is paid to professionals.
Plaintiff relies on Cerebral Palsy Center, Bergen County, Inc. v.
Mayor & Counsel, 374 N.J. Super. 437 (App. Div. 2005) to argue
that N.J.S.A. 40:55D-53.2 only permitted payment of fees to the
Board's professional consultants, not to the Board members for
15 A-0206-15T1
attendance at special meetings.
N.J.S.A. 40:55D-53.2 provides in pertinent part:
a. The chief financial officer of a
municipality shall make all of the payments
to professionals for services rendered to the
municipality or approving authority for review
of applications for development, review and
preparation of documents, inspection of
improvements or other purposes . . . . Such
fees or charges shall be based upon a schedule
established by resolution. The application
review and inspection charges shall be limited
only to professional charges for review of
applications, review and preparation of
documents and inspections of developments
under construction and review by outside
consultants when an application is of a nature
beyond the scope of the expertise of the
professionals normally utilized by the
municipality. . . . The municipality or
approving authority shall not bill the
applicant, or charge any escrow account or
deposit authorized under subsection b. of this
section, for any municipal clerical or
administrative functions, overhead expenses,
meeting room charges, or any other municipal
costs and expenses except as provided for in
this section, nor shall a municipal
professional add any such charges to his bill.
[(Emphasis added).]
The purpose of N.J.S.A. 40:55D-53.2 is to limit and control the
costs of applying for land-use approvals. Cerebral Palsy Ctr.,
374 N.J. Super. at 447.
Plaintiff's argument is partially correct because N.J.S.A.
40:55D-53.2 addresses fees for the Board's professional
consultants. However, plaintiff is incorrect inasmuch as the
16 A-0206-15T1
statute does not address whether Board members may be paid for
attendance at special meetings. In fact, here, the judge correctly
stated that a fair reading of the language of N.J.S.A. 40:55D-53.2
is that its purpose is to control professional fees, rather than
define the entire universe of charges imposed on an applicant for
special meetings.
However, because N.J.S.A. 40:55D-53.2 only addresses
professional fees and does not address payments to Board members
for attending special meetings, it does not govern whether the
special meeting fees were permissible in this case. In addition,
Cerebral Palsy Center is easily distinguished because there, the
municipality required applicants for site plan approval to pay for
the services of a public advocate who would "review and comment
upon" the application. 374 N.J. Super. at 446. Here, applicants
could voluntarily undertake the expense of special meetings but
were not required to do so. Further, the payment in Cerebral
Palsy Center was for the "professional" services of a public
advocate pursuant to N.J.S.A. 40:55D-53.2. There is no
professional service here, but rather payments to Board members
for attending special meetings.
Plaintiff argues that N.J.S.A. 40:55D-8(b) permits filing
fees to be used only for administrative costs and not for
compensation of Board members. However, N.J.S.A. 40:55D-8(b)
17 A-0206-15T1
provides that fees charged to an applicant must be reasonable and
established by ordinance. The statute does not limit how a
municipality may use the fees, or exclude payments to Board members
for attending special meetings. In fact, given that the Board
meets only once per month, if Board members were unwilling to
attend special meetings, it would be impossible to timely decide
complex applications that require extensive testimony.
Encouraging Board members to attend special meetings to ensure
timely decisions is in accord with the municipality's
responsibility under the MLUL and NBZO 10.4(a), which requires
timely decisions on applications. Notably, even with the payment
of attendance fees, it still took nearly seven years to resolve
Riverview's application.
Citing Nunziato v. Planning Board of Edgewater, 225 N.J.
Super. 124, 132-34 (App. Div. 1988), plaintiff argues that the
payments tainted the proceedings. There, the planning board
approved a site plan in exchange for the developer's promise to
contribute $203,000 to affordable housing in the municipality.
Id. at 132-34. We held the proceedings were irremediably tainted
because the developer and board bargained for the $203,000, a
material factor in granting site plan approval. Id. at 133. We
determined that such bargaining, was "inimical" to the goals of
land use regulation. Id. at 134.
18 A-0206-15T1
Here, unlike in Nunziato, there was no bargaining, and Board
members were not paid to grant the approval. To the contrary, the
payments were solely made to encourage their attendance at special
meetings, with no requirement that the Board members who received
payments should vote a particular way.
Plaintiff argues the fees were improper because N.J.S.A.
40A:9-22.5 prohibits officials from acting in a matter in which
they have financial involvement that might impair their
objectivity. N.J.S.A. 40A:9-22.5(d) provides:
No local government officer or employee shall
act in his official capacity in any matter
where he, a member of his immediate family,
or a business organization in which he has an
interest, has a direct or indirect financial
or personal involvement that might reasonably
be expected to impair his objectivity or
independence of judgment[.]
We disagree with plaintiff that payment of a $150 fee for
attending a special meeting should be considered direct or indirect
financial or personal involvement that might reasonably be
expected to impair a Board member's objectivity or independence
of judgment. Riverview paid $35,750 for Board members' attendance
at special meetings over the course of seven years. This amounts
to less than $5000 per year divided among several Board members.
These relatively minor payments were not sufficient to impair
their judgment.
19 A-0206-15T1
Citing Aldom v. Roseland, 42 N.J. Super. 495, 502 (App. Div.
1956), plaintiff argues that special meetings were not necessary
and created an appearance of impropriety. There, a zoning
ordinance was invalidated because a board member voted on matters
that impacted his employer who owned significant land in the
community. Id. at 502. We stated that even when the financial
interest of a board member is small or "indirect" the board must
avoid the appearance of impropriety. Ibid. Here, no Board member,
employer or family member of a Board member had a financial stake
in Riverview's application.
Citing Shapiro v. Mertz, 368 N.J. Super. 46 (App. Div. 2004),
plaintiff argues the payments created a conflict of interest.
There, a town council member voted to appoint her spouse to the
planning board. Id. at 51-53. We held there was a clear conflict
of interest when a person votes to appoint a family member to a
position in a government agency. Id. at 51-54. Here, no board
member's family member received any significant benefit because
of the payment of special meeting fees.
Plaintiff also cites to Randolph v. City of Brigantine
Planning Board, 405 N.J. Super. 215, 220 (App. Div. 2009), where
a planning board chairperson who resided with her boyfriend voted
to hire her boyfriend's employee. The chairwoman stood to gain
financially from the hiring of her boyfriend's employee. Id. at
20 A-0206-15T1
231-32. Here, any financial gain to Board members was minimal and
they did not have to vote a particular way to receive payments.
Plaintiff argues the special meeting fees were invalid
because they were paid prior to the adoption of O-1106-07. The
trial judge determined the payments made prior to adoption of the
ordinance were technical errors subject to ratification pursuant
to Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19
N.J. 493, 504-05 (1955) (holding that where an act is "irregular
exercise of a basic power under the legislative grant,"
ratification is permissible, so long as "relaxation of the
conditions laid down in the grant of the power" does not "defeat
the public policy intended to be served").
The Township passed O-1106-07 shortly after it began paying
special meeting fees to Board members. The relaxation of MLUL
conditions, i.e., that the payments should be made pursuant to an
ordinance, did not defeat any public policy intended to be served.
We agree with the judge that the payments prior to adoption of O-
1106-07 were technical errors that could be ratified. For all of
these reasons, we affirm the grant of summary judgment to
defendants.
III.
Plaintiff contends the judge erred by affirming the Board's
grant of the BOV. We disagree.
21 A-0206-15T1
Riverview maintained it did not need a BOV because the towers
were oriented correctly although the parking garage was not. The
Board agreed a BOV was not required because the dominant portion
of the project was the residential towers, which were oriented
correctly in an east-west direction. The Board determined the
ordinance only required residential buildings to be oriented in
the correct direction, but not the parking garage.
In addition, the Board found the building orientation and
view corridor ordinances should be read in conjunction and the
improper orientation of the parking garage did not affect the view
and was acceptable because it was less than fifty-feet high. The
Board noted the zoning ordinances provide that structures under
five stories or fifty-feet high do not interfere with the view.
The Board also found, however, that if a BOV were necessary
it should be granted under N.J.S.A. 40:55D-70(c)(1) because of the
property's unique shape and topography, and under N.J.S.A. 40:55D-
70(c)(2) because the parking garage was more visually appealing
than surface blacktop.
The judge determined the Board erred in interpreting the
ordinance because the orientation requirement applied to the whole
building and not a portion of it; thus, because the parking garage
was oriented in the wrong direction, Riverview required a BOV.
Nevertheless, the judge affirmed the Board's determination that
22 A-0206-15T1
if a BOV was necessary, it should be granted pursuant to N.J.S.A.
40:55D-70(c)(1) and (c)(2) because the evidence supported this
conclusion.
The decision of a municipal board is entitled to substantial
deference. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing
Kramer v. Bd. of Adustment, 45 N.J. 268, 296 (1965)). The court
may not substitute its judgment for that of the board. Burbridge
v. Mine Hill Twp., 117 N.J. 376, 385 (1990). Courts reviewing a
municipal board action on zoning applications are limited to
determining whether the board's decision 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). Review of decisions of local land use agencies begins
with the recognition that the board's decision is presumptively
valid. Sica v. Bd. of Adjustment, 127 N.J. 152, 166-167 (1992).
"[B]oards possess special knowledge of local conditions and must
be accorded wide latitude in the exercise of their discretion."
Ibid. (citing Kramer, 45 N.J. at 296-97).
The burden is on a challenger to show that the board's
decision was incorrect. S & S Auto Sales, Inc. v. Zoning Bd. of
Adjustment, 373 N.J. Super. 603, 615-616 (App. Div. 2004) (citing
N.Y. SMSA Ltd. P'ship v. Bd. of Adustment, 324 N.J. Super. 149,
163 (App. Div. 1999)). A determination predicated on unsupported
23 A-0206-15T1
findings is the essence of arbitrariness and caprice. Witt v.
Borough of Maywood, 328 N.J. Super. 432, 442 (Law Div. 1998),
aff'd, 328 N.J. Super. 343 (App. Div. 2000). The same standard
of review that governs the trial court applies to an appellate
court. Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, 202
N.J. Super. 312, 321 (App. Div. 1985).
The MLUL requires municipalities to develop lands in a manner
which promotes the general welfare. 388 Route 22 Readington Realty
Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 346 (2015). An
application for a bulk variance often implicates several purposes
of the MLUL, including: to encourage municipalities to develop
land in a manner that promotes health, safety and welfare, to
minimize threats to public safety, to provide adequate light, air
and open space, to promote a desirable visual environment, and to
establish appropriate population densities. Ten Stary Dom P'ship
v. Mauro, 216 N.J. 16, 30-31 (2013).
A variance may be granted for "special reasons" so long as
it will not cause "substantial detriment" to the public good and
it will not "substantially impair the intent and the purpose of
the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). The
statute requires proof of both positive and negative criteria.
Sica, 127 N.J. at 156. "Under the positive criteria, the applicant
must establish 'special reasons' for the grant of the variance."
24 A-0206-15T1
Ibid. To satisfy the negative criteria, the applicant must
establish that the variance "can be granted without substantial
detriment to the public good" and that it will not "substantially
impair the intent and the purpose of the zone plan and zoning
ordinance." Ibid.N.J.S.A. 40:55D-70(c)(1) provides:
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 . . . this act would
result in peculiar and exceptional practical
difficulties to, or exceptional and undue
hardship upon, the developer of such property,
grant, upon an application or an appeal
relating to such property, a variance from
such strict application of such regulation so
as to relieve such difficulties or hardship[.]
N.J.S.A. 40:55D-70(c)(2) provides:
where 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 board must "take cognizance when bulk variances are
required" especially when evidence has been presented of
25 A-0206-15T1
"potential bulk restriction violations." O'Donnell v. Koch, 197
N.J. Super. 134, 143 (App. Div. 1984). For a N.J.S.A. 40:55D-70
(c)(2) variance, approval should be based on the purposes of the
zoning ordinance and not on the advancement of the goals of the
property owner. Ten Stary Dom P'ship, 216 N.J. at 30.
Plaintiff argues the Board's action was arbitrary and
capricious because it granted the BOV in the absence of any
evidential support. Plaintiff posits the Board should not have
relied on N.J.S.A. 40:55D-70(c)(1) to grant the variance.
N.J.S.A. 40:55D-70(c)(1) permits granting a variance if there
is a hardship caused by the property's exceptional narrowness,
shallowness or shape or for exceptional topographic conditions or
physical features uniquely affecting the property. The record
amply supported the Board's finding that a hardship existed
pursuant to N.J.S.A. 40:55D-70(c)(1) because the property was
long, narrow, and mostly under water. The unusual shape and
topography of the property was emphasized throughout the special
meetings.
In addition, the Board correctly found that the building
orientation ordinance was intended to protect public views, and
the project complied with the view corridor ordinance and
sufficiently protect public views. In fact, the only aspect of
the building that was not oriented correctly was the parking garage
26 A-0206-15T1
which would not affect public views. It is clear from the language
of the ordinances that a building of less than five stories or
fifty feet in height, such as the building here, was not considered
an impediment to the views. Thus, we agree that the Board's grant
of the BOV for the improperly oriented parking garage did not
unreasonably obstruct the public views.
Plaintiff argues the sole reason for the hardship was because
Riverview designed an oversized building, and Riverview would not
need a variance had it designed a smaller building. However, more
than nineteen of the site's twenty-six acres were under water. In
order to maximize use of the unusually shaped parcel of land and
its relatively small acreage that was above water, Riverview
required a variance for only the parking garage. The towers
complied with Township requirements for orientation, view
corridor, and height, as well as front, side and back yard setback.
Further, as the Board noted, if the BOV was not granted, the
parking garage would be moved to the exterior surface, which would
be visually unappealing. Given the constraints of the oddly shaped
and mostly submerged property, we are satisfied the evidence
supported granting the BOV pursuant to N.J.S.A. 40:55D-70(c)(1).
Plaintiff also argues the court erred by permitting the Board
to grant a BOV pursuant to N.J.S.A. 40:55D-70(c)(2) because the
benefits of the project did not substantially outweigh the
27 A-0206-15T1
detriments. Plaintiff posits the site plan does not benefit the
community, and N.J.S.A. 40:55D-70(c)(2) is only meant to be invoked
when the granting of a variance would improve upon zoning rules,
but here, the zoning ordinances were intended to preserve the view
and the Riverview project destroyed it.
We disagree with plaintiff. Riverview complied with Township
ordinances that protected the view, and the record does not support
plaintiff's assertion that granting the BOV destroyed the view.
As previously noted, the three-story structure that included the
parking garage was less than fifty feet high and not tall enough
to obstruct the view. The only part of the project that was
oriented in the wrong direction was the parking garage, which did
not affect exterior views.
In addition, Riverview's view corridor was 250-feet wide,
exceeding what the ordinance required. Moreover, the evidence
supported the Board's finding that above-ground parking would be
less beneficial to the community because it would require visually
unappealing black-top. Accordingly, granting the BOV pursuant to
N.J.S.A. 40:55D-70(c)(2) was appropriate.
Plaintiff argues that Riverview did not present an
alternative plan, so it is impossible to weigh the positive and
negative impacts. However, the record supports the Board's finding
that an alternative to the parking garage was surface parking,
28 A-0206-15T1
which was less desirable because it entailed more blacktop and
less landscaping. Thus, the Board correctly determined that
outdoor parking would create a negative impact and the BOV should
be granted pursuant to N.J.S.A. 40:55D-70(c)(2). Accordingly, the
judge was correct to uphold the Board's determination that if a
BOV was necessary, it should be granted pursuant to N.J.S.A.
40:55D-70(c)(1) and (c)(2).
IV.
Plaintiff argues the Board lacked jurisdiction to approve the
fifty parking spaces for use by nearby residents. The fifty
parking spaces, known as "contract" spaces, were separately
designated on the architectural plans and located inside the
parking garage. The judge determined a use variance was not ripe
for adjudication given that until the parking lot was constructed
it was unclear how the Township intended to use the spaces.
We have held that:
An incidental use is one that relates to a
business, trade, profession or occupation in
general and not specifically to the use which
is peculiar to the applicant. . . .
The use must be . . . commonly, habitually and
by long practice . . . established as
reasonably associated with the primary use.
[Charlie Brown, 202 N.J. Super. at 324.]
Plaintiff first argues Riverview planned to use the fifty
29 A-0206-15T1
spaces as a paid parking garage, which is not permitted in the P-
1 zone, and thus, required a use variance pursuant to N.J.S.A.
40:55-70(d)(1), which may only be granted by the Zoning Board of
Adjustment. In support, plaintiff cites Najduch v. Township of
Independence Planning Board, 411 N.J. Super. 268, 279 (App. Div.
2009) (holding that planning board may only consider applications
for permitted use).
Plaintiff also argues there was no evidence supporting the
judge's conclusion that the Township, and not Riverview, had
discretion to determine how to use the spaces. Plaintiff's sole
evidence that Riverview intended to construct a paid parking garage
is the 2005 contract of sale, which required Riverview to provide
spaces for nearby residents at a monthly fee.
Riverview counters that despite the language in the 2005
contract, it does not intend to charge a fee for parking and the
Township will have discretion as to how to use the spaces. In
support, Riverview points to a statement by the Board's attorney,
John Dineen, made at a special meeting:
The parking spaces that are at issue here are
[fifty] parking spaces proposed in fact by the
municipality of North Bergen. North Bergen
is going to be responsible as to how it permits
or uses it or however [it] charges for it but
it has nothing to do with the development.
30 A-0206-15T1
At another point, Dineen stated "[a]s a condition of the purchase
[in 2005] . . . there was a requirement that [Riverview] give or
transfer to the borough [fifty] parking spaces." Dineen's
statements are evidence the Township had discretion as to how to
use the spaces.
Moreover, according to Riverview, the fifty spaces are a
"quasi-public" use permitted by the Township's master plan as part
of a PURD, which "may include appropriate commercial or public or
quasi-public uses, all primarily for the benefit of the residential
development." Thus, presumably, public parking, if used to benefit
the residential development, would be permitted as part of a PURD.
Plaintiff also argues that a parking garage was not an
accessory use permitted in the P-1 zone because it was not
subordinate to the principal use of the building. Plaintiff posits
that parking for residents would be an accessory use, but paid
parking for non-residents would not. Plaintiff emphasizes that a
parking garage is not accessory to the primary use of Riverview's
project because it had no real relationship to or interdependence
with the project.
In support, plaintiff cites Nuckel v. Borough of Little Ferry
Planning Board, 208 N.J. 95, 104 (2011) (finding that constructing
a driveway on neighboring lot was not an accessory use); Wyzykowski
v. Rizas, 132 N.J. 509, 518-21 (1993) (holding that apartments
31 A-0206-15T1
were not an accessory use in a commercial zone because they bore
no relationship to principal commercial use and were not permitted
by ordinance); Charlie Brown, 202 N.J. Super. at 325 (providing
that employees' sleeping quarters on the premises of a restaurant
is not reasonably related or incidental to operation of restaurant
under present day standards); and Zahn v. Board of Adjustment of
Newark, 45 N.J. Super. 516, 520-22 (App. Div. 1957) (finding that
designating room in multi-family residence as garment-cleaning
depot was business not incidental to operation of apartment
building).
However, those cases all involved accessory uses that the
courts determined were not subordinate to the principal uses.
Here, the judge determined the issue was not ripe for adjudication
because it was unclear how the Township intended to use the spaces.
In addition, public parking is an accessory use to a high-rise
residential building regardless of who owns the spaces.
We agree that parking would be an accessory use in the P-1
zone because a PURD "may include appropriate commercial or public
or quasi-public uses." Parking would certainly be an accessory
use to a commercial, public or quasi-public use. Further, paid
parking for guests of residents would benefit residents of the
building. Nevertheless, as the judge correctly determined, until
the parking spaces are constructed, it is impossible to know how
32 A-0206-15T1
the Township intends to use them. This issue clearly was not ripe
for adjudication.
V.
Plaintiff contends the Board's grant of a building coverage
variance was not supported by the record and is arbitrary,
capricious, and unreasonable. The record shows otherwise.
Personal hardship is irrelevant to whether to grant a variance
under N.J.S.A. 40:55D-70(c)(1). Lang v. Zoning Bd. of Adjustment,
160 N.J. 41, 53 (1999). The correct focus is whether "strict
enforcement of the ordinance would cause undue hardship because
of the unique or exceptional conditions" of the property. Ibid.As noted, Table 3.10.a, supplementing NBZO 3.10(a) and NBZO
11.3(a)(3), permitted building coverage of no more than 35%, not
including lands under water. Riverview requested a variance for
building coverage of 46.6%. The Board granted the variance because
of the unusual shape of the property and the fact that significant
acreage was underwater. The judge affirmed because the Board's
determination was supported by credible evidence.
Plaintiff argues that all property in the P-1 zone included
lands under water and, therefore, the judge should not have made
an exception for Riverview. Plaintiff asserts that NBZO 11.3(a)(3)
expressly excluded lands under water for purposes of calculating
building coverage. Plaintiff cites Isko v. Planning Board of
33 A-0206-15T1
Township of Livingston, 51 N.J. 162, 174 (1968), overruled in part
by Lang, 160 N.J. 41, for the proposition that when a property is
similar to other properties in the zone, it should not be given a
hardship exception pursuant to N.J.S.A. 40:55D-70(c)(1).
Plaintiff argues the property is similar to others in the P-
1 zone. However, the record is devoid of evidence of the shape
or percentage of underwater acreage for other parcels of land in
the P-1 zone, making it impossible to determine similarity. Even
if there was evidence of other parcels in the P-1 zone that
contained underwater acreage, here, approximately nineteen of the
twenty-six acres were under water, leaving only about six acres
available for construction. There is no evidence of a similar
property in the record.
In addition, the property was shaped unusually with its width
ranging from ninety to 420 feet with a midpoint depth of 260 feet.
Because the majority of the property was submerged, and because
the property was long and narrow with widely varying depths, it
is impossible to ascertain to what extent it was similar or
dissimilar to other P-1 zone properties.
Moreover, the project complied with most Township bulk
requirements. For example, it met the requirements for front
setback; side and rear yards; maximum impervious lot coverage;
height; landscaping; open air and space; and the number of parking
34 A-0206-15T1
spaces. Further, Table 3.10.a permitted up to seventy-five
dwelling units per acre but Riverview's proposal was significantly
lower.
Moreover, the building coverage variance became necessary,
in part, because of the parking garage. If parking was located
on the surface, less of the lot would have been covered by a
building. However, as Riverview noted, the parking garage was
beneficial to the community because it hid cars and garbage pickup
from view. Lastly, the variance required a relatively small
adjustment given that NBZO 3.10 permitted building coverage of 35%
and Riverview's application proposed building coverage of 46%.
For these reasons, it was not arbitrary, capricious, or
unreasonable for the Board to grant the building coverage variance.
Plaintiff argues that Riverview never demonstrated it could
not design a building that complied with the requirements for
building coverage. However, despite the property's odd shape, the
project met most Township requirements. It was only because of
the unusual topography that the variance was necessary. Further,
Riverview satisfied the positive and negative criteria.
Given the evidence of the unusual shape and topography of the
site, we conclude the Board's grant of the building coverage
variance was not arbitrary, capricious, or unreasonable and was
supported by the record. The project largely met Township
35 A-0206-15T1
requirements, and building coverage limitations were challenging
because of the unusual shape of the property. Accordingly, the
judge correctly affirmed the Board's grant of the building coverage
variance.
VI.
Plaintiff contends the Board's grant of the lighting variance
and omission of the ten-foot landscaped buffer was erroneous
because these deviations demonstrated the property was being
overdeveloped. This contention lacks merit.
The Board granted the lighting variance because it was
necessary for security reasons. It also permitted Riverview to
omit the ten-foot landscaped buffer on the northern property border
because, instead, the project would provide an eight-foot wide
sidewalk leading to the river walkway. The judge correctly found
the Board's decisions on lighting and the landscaped buffer were
supported by credible evidence.
Plaintiff argues the lighting variance and the absence of the
landscaped buffer only became necessary because Riverview designed
an oversized building. However, the landscaped buffer was omitted
not because of the building, but because the project provided a
wide sidewalk leading to the river. The extra lighting was
necessary for safety reasons. These accommodations were not
because the building was oversized, but because of logistical and
36 A-0206-15T1
security concerns.
Plaintiff argues that the testimony about the need for more
intense lighting was a net opinion not substantiated with evidence.
Plaintiff asserts that nothing in the record supports the need for
more intense lighting and therefore, the grant of the lighting
variance was arbitrary and capricious. Plaintiff is wrong.
Experts must base their opinions on facts, but bare
conclusions unsupported by factual evidence are inadmissible "net
opinions." State v. Townsend, 186 N.J. 473, 494 (2006). Remick,
a licensed engineer, opined that more intense lighting was
necessary to promote vehicular safety at driveway intersections
and in parking areas. McGrath, the board's engineer, agreed,
stating his only concern was the possibility of too much light
spillage onto the neighboring property. Remick's opinion,
therefore, was not a net opinion. Remick was a licensed
professional engineer and his opinion was based on the fact that
the driveway areas would not have sufficient lighting.
Plaintiff argues the Board attempted to rezone the area by
granting variances. In support, plaintiff cites Ten Stary Dom
Partnership, 216 N.J. at 20-26, which involved a variance to build
a single-family home on a lot zoned for residential use which had
insufficient frontage. The Court explained that different
variances implicate different aspects of a zoning plan. Id. at
37 A-0206-15T1
32. For example, a variance for setback requirements might trigger
a concern with light, air and open space, while a variance for
building coverage would trigger a concern for drainage. Ibid.
Here, the Board considered the effect of each variance on the
zoning plan and found they would not negatively impact the plan.
Moreover, the project largely complied with bulk requirements and
variances were needed for only minor issues that promoted safety
and were aimed at satisfying the positive and negative criteria,
given the odd shape of the property. Further, other than the
absence of the ten-foot landscaped buffer, the requirements for
landscaping, open air and population density were amply satisfied.
Accordingly, the judge did not err in affirming the Board's grant
of the lighting variance and the omission of the ten-foot
landscaped buffer.
VII.
The judge found the evidence supported the Board's finding
that Riverview satisfied the negative criteria. The judge
determined the Board correctly relied on McSweeney's expert
opinion that the project did not violate the master plan or
undermine the zoning intent.
Plaintiff contends that Riverview did not satisfy the
negative criteria. Citing Medici v. BPR Co., 107 N.J. 1, 21-22
(1987) (requiring enhanced proofs that negative criteria were met
38 A-0206-15T1
when granting use variance), plaintiff argues the Board merely
recited language about satisfying the negative criteria, but did
not actually insure that the negative criteria were met. Medici
involved the grant of a use variance and not a bulk variance.
Ibid. In any event, plaintiff posits the Board did not actually
analyze the facts in the record, mentioned the master plan but did
not discuss what it actually required, and did not address the
substantial negative impact on the intent and purpose of the zone
plan. Also, plaintiff argues that Riverview experts gave net
opinions because they did not provide the "whys and wherefores"
to support their views.
To satisfy the negative criteria, the applicant must
establish that the variance "can be granted without substantial
detriment to the public good" and that it will not "substantially
impair the intent and the purpose of the zone plan and zoning
ordinance." Sica, 127 N.J. at 156. Here, the Board carefully
considered the evidence presented over the course of seven years,
including extensive testimony regarding the public good, the
intent and purpose of the zone plan and zoning ordinances, views,
landscaping, traffic, parking, the river walkway, and preservation
of open space, air, and light. The resolution discussed the
positive and negative criteria. We disagree that the Board merely
recited language. Rather, the Board analyzed, discussed, and
39 A-0206-15T1
considered the positive and negative criteria.
Plaintiff argues the Board ignored the policy behind the
building orientation requirement that the longest dimension of the
building should be oriented east-west to preserve the views of the
river and the New York skyline. Plaintiff posits the improperly
oriented building does not protect visual access to the area,
which the master plan and the zoning ordinances sought to protect.
Plaintiff's argument is without merit, as the building
towers, which affected the views, were oriented correctly in
accordance with Township ordinances. Moreover, as the Board
stated, the building orientation and view corridor requirements
should be read in conjunction, and here, the view corridor provided
by Riverview was significantly wider than what was required. Any
type of development of the property would have affected the river
views and some level of obstruction was permissible so long as
Township ordinances were respected. The project complied with
Township ordinances aimed at protecting the view and did not
negatively affect the view.
We reject plaintiff's argument that the Board ignored
evidence from Steck that view of the river was a significant part
of the Township's zoning ordinances and master plan. The Board's
summary of evidence included Steck's statement and discussion of
the master plan. In addition, in its resolution, the Board
40 A-0206-15T1
specifically found the master plan and Township ordinances were
aimed at preserving the view, and quoted the same section of the
master plan that Steck cited.
Plaintiff also argues the Board ignored evidence presented
by Helmstetter that the value of plaintiff's townhouses would
diminish by $5 million (collectively) or $200,000 per townhouse.
However, the Board included Helmstetter's findings in its summary
of the evidence considered and was not required to rely on
Helmstetter.
Moreover, even though plaintiff's properties would decline
in value, the bulk requirements were largely met by the project.
Further, as the judge correctly noted, In Re Riverview Development,
411 N.J. Super. at 434-35, holds that a plaintiff may not prevent
a zoning-compliant structure just because it would block the
plaintiff's view. In addition, "collateral economic impacts [on]
surrounding properties" because of "an otherwise-lawful building
are part and parcel of the social compact." Id. at 435.
Plaintiff complains about McSweeney's statement that the
project satisfied the negative criteria because it was a permitted
use in the P-1 zone. Plaintiff argues this statement incorrectly
implies that any permitted use satisfies the negative criteria.
However, notwithstanding McSweeney's statement, the record
confirms that Riverview satisfied the negative criteria.
41 A-0206-15T1
Plaintiff also complains about McSweeney's concession that
he had not read the master plan. However, McSweeney stated that
he looked at the master plan and the master plan 2003 reexamination
report. He was also well-versed in Township ordinances and
understood the Township's priority of preserving the view. Thus,
he was familiar with the master plan and Township ordinances. His
statement was correct that the project complied with the goal of
the Township ordinances and master plan that views of and access
to the river should be protected.
Plaintiff also complains about the judge's reliance on
Chirichello v. Zoning Board of Adjustment, 78 N.J. 544, 557 (1979).
The judge cited Chirichello for the proposition that "the
compliance with the permitted use and other bulk requirements of
the ordinance requires 'some indicia that the zone plan and zoning
ordinance may not have been substantially impaired by granting the
variance.'" We agree with the judge that general compliance with
the zone plan indicates the ordinance and master plan were not
substantially impaired by the granting of the variance.
Plaintiff believes the Township ordinance contemplates a
smaller building oriented in the correct direction. However, as
noted, the project complied with side and rear yard setback and
height requirements. The only area where the project exceeded the
size requirement was building coverage, and even this aspect was
42 A-0206-15T1
relatively minor and a result of the parking garage. Given the
topography and unusual dimensions of the lot, we do not agree with
plaintiff's contention that the building was oversized or the
Township ordinances envisioned a smaller building. The project
largely complies with Township requirements.
VIII.
Lastly, plaintiff contends the Board's resolution failed to
include statutorily required findings for a planned development.
We disagree.
NBZO 10.8 required the Board to make findings about compliance
with Township ordinances and the MLUL, the adequacy of open space,
provisions for public services, vehicular and pedestrian traffic,
light and air, recreation and physical enjoyment, and the
development's impact on the area. In addition, N.J.S.A. 40:55D-
45 required the board to make the following findings:
a. That departures by the proposed
development from zoning regulations otherwise
applicable to the subject property conform to
the zoning ordinance standards . . . of this
act;
b. That the proposals for maintenance and
conservation of the common open space are
reliable, and the amount, location and purpose
of the common open space are adequate;
c. That provision through the physical
design of the proposed development for public
services, control over vehicular and
pedestrian traffic, and the amenities of light
43 A-0206-15T1
and air, recreation and visual enjoyment are
adequate;
d. That the proposed planned development
will not have an unreasonably adverse impact
upon the area in which it is proposed to be
established;
e. In the case of a proposed development
which contemplates construction over a period
of years, that the terms and conditions
intended to protect the interests of the
public and of the residents, occupants and
owners of the proposed development in the
total completion of the development are
adequate.
The Board's resolution included findings on the following
matters: preserving the view pursuant to Township ordinances and
the master plan; the positives outweighed the negatives; the odd
shape of the parcel; the lighting; the number and size of parking
spaces; security; the MLUL; the ten-foot landscaped buffer was not
necessary because of the eight-foot sidewalk accessing the
riverfront; public access to the river and open space; rear and
side setback; density; landscaping; vehicular security, deliveries
and visitors; and a safe traffic plan.
Plaintiff argues the resolution did not use terms such as
"adverse impact," "conservation" and "maintenance," and those
terms were used in N.J.S.A. 40:55D-45 to refer to the protection
of open space, light and air. Even though the resolution did not
include those exact terms, it repeatedly emphasized the
44 A-0206-15T1
preservation of space, light, and air. It was not necessary to
utilize that exact language. The contents of the resolution
satisfied the statute and ordinance.
Plaintiff argues that the Board's resolution did not make
specialized findings that the general welfare would be protected
by the high density residential development. It is true the
resolution did not make specialized findings about the protection
of the general welfare. Nevertheless, the resolution extensively
addressed views and public access to the river, which were
significant aspects of protecting the public welfare.
Plaintiff again argues the Board did not evaluate the
unrebutted testimony from Helmstetter and Steck that the variances
would adversely affect neighboring property values. As noted, the
Board mentioned this evidence but did not rely upon it. Also, the
project complied with most Township requirements notwithstanding
the adverse impact to plaintiff's property values.
Plaintiff takes issue with the court's reliance on In re
Riverview Development, 411 N.J. Super. at 435, because according
to plaintiff, the project is not zoning-compliant. However, the
project generally complies with bulk requirements, and only
required a relatively small number of variances for relatively
insignificant deviations from the ordinances.
45 A-0206-15T1
Plaintiff also argues that In re Riverview Development
addressed issues pertaining to the DEP's approval for waterfront
development and not whether the board should consider plaintiff's
losses of view and property value. Ibid. However, that case did
not address the merits of site plans or variance applications.
Ibid. Nevertheless, it stands for the proposition that "[a]bsent
an enforceable deed restriction or easement, [a plaintiff may not]
. . . prevent any party--whether it be a private or public
developer--from building a zoning-compliant structure" because it
will block views. Ibid.Finally, plaintiff argues that construction of the project
will have an adverse impact on the surrounding areas. However,
the Board considered extensive evidence about views, traffic, air
light and landscaping and correctly found the positive criteria
outweighed the negative.
We conclude that the judge correctly affirmed the Board's
decision. The Board's decision was not arbitrary, capricious, or
unreasonable, and was amply supported by the record.
Affirmed.
46 A-0206-15T1