AMIR SHAKED v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4634-15T2
AMIR SHAKED, EFRAT SHAKED,
KATARZYNA KRICKOVIC, NENAD
KRICKOVIC and GURJEET TANEJA,
Plaintiffs-Appellants,
v.
BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF NORTH BERGEN
and CHR PARTNERS, LLC,
Defendants-Respondents.
Argued December 14, 2017 – Decided May 23, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2484-15.
Malcolm J. McPherson, Jr., argued the cause
for appellants.
John R. Dineen argued the cause for respondent
Board of Adjustment of the Township of North
Bergen (Netchert, Dineen & Hillmann,
attorneys; Christine S. Diana, on the brief).
Joseph L. Basralian argued the cause for
respondent CHR Partners, LLC (Winne, Banta,
Basralian & Kahn, PC, attorneys; Joseph L.
Basralian, of counsel and on the brief; R.N.
Tendai Richards, on the brief).
PER CURIAM
In this action in lieu of prerogative writs, plaintiffs Amir
Shaked, Efrat Shaked, Katarzyna Krickovic, Nenad Krickovic, and
Gurjeet Taneja appeal from the May 23, 2016 Law Division order,
which affirmed the decision of defendant Board of Adjustment,
Township of North Bergen (Board) to approve the amended application
of defendant CHR Partners, LLC (CHR) to construct a seventy-unit
high-rise building in North Bergen. We affirm.
I.
The subject property is known as 8701 and 8703-8719 Church
Hill Road, and designated on the Township of North Bergen
(Township) tax map as Block 435, Lots 39 and 40 (previously Lots
30 to 40). The property is located in the R-1 Low Density
Residential/Townhouse District, which permits one- and two-family
attached dwelling units and includes a townhouse overlay (the R-1
District).
In 2006, CHR applied for preliminary and final site plan
approval to develop a fifty-four unit multi-family high-rise
building with nine floors of residences above four floors of
parking comprised of nine one-bedroom units, thirty-six two-
bedroom units, and nine three-bedroom townhouse units on a 1.67
2 A-4634-15T2
acre site (the 2006 application). CHR applied for a use variance
because a high-rise apartment building was not a permitted use in
the R-1 District.
CHR also applied for a density variance for 41.6 units per
acre, whereas twenty-five units per acre was allowed in the R-1
District; a height variance for 114.17 feet, whereas forty-five
feet was allowed; a rear yard setback variance of eleven feet,
whereas thirty feet was required; a lot coverage variance for
ninety-three percent, whereas ninety percent was allowed; a front
yard setback variance for twenty-one feet and eight feet, whereas
ten feet was allowed; and a side yard setback variance for nineteen
feet and eight feet, whereas fifteen feet and fifty feet was
allowed. On July 20, 2006, the Board issued a resolution approving
the site plan and granting all variances CHR requested (the
Original Approval).
CHR subsequently applied for an amendment to the site plan
approved in the Original Approval to permit it to subdivide the
townhouses on Lots 39 and 40 from the high-rise building on Lots
30 to 38, and install an interior electronic elevator parking
system in the high-rise building to eliminate two levels of
parking. Under the amended plan, CHR would proceed with the
project in two phases, with the townhouses constructed in phase
one and the high-rise building constructed in phase two. On July
3 A-4634-15T2
11, 2007, the Board issued a resolution approving the application
(the 2007 Approval).
In 2009, CHR constructed the nine townhouses. CHR also
rebuilt Church Hill Road to the Township's road standards, and
installed underground utilities along the entire length of the
property and beyond to neighboring properties, thirteen on-street
parking spaces on Church Hill Road, and a conforming intersection
of Church Hill Road with River Road. By August 24, 2010, CHR sold
all nine townhouses and conveyed title by separate deeds.
Prior to the sale of the first townhouse, the Township's tax
assessor combined Lots 39 and 40, on which the townhouses were
located, into a new tax Lot 40 with a numerical designation for
each townhouse of one through nine. The tax assessor also combined
Lots 30 to 38, on which CHR would construct the high-rise apartment
building, into a new tax Lot 39. However, the subdivision of the
townhouse Lots 39 and 40 from high-rise building Lots 30 to 38
never occurred because CHR withdrew its application for a
subdivision.
On April 11, 2011, CHR applied for an amendment to the site
plan approved in the Original Approval to permit construction of
eighty units in the high-rise building and four floors of parking
containing 138 parking spaces (the 2011 application). The eighty
4 A-4634-15T2
units would comprise thirty one-bedroom units, forty two-bedroom
units, and ten three-bedroom units.
On November 21, 2011, the North Bergen Fire Department advised
the North Bergen Director of Public Safety that the building plan
posed possible fire hazards, as "[t]here [was] no designated area
for emergency vehicles to exit Church Hill Road" and "[t]here
[was] no access to the rear of the structure for firefighter
operations and rescue if needed." Prior thereto, on November 16,
2012, CHR withdrew the 2011 application and decided to proceed
with the fifty-four-unit project approved in the Original
Approval.
On June 26, 2014, CHR applied for an amendment to the site
plan approval in the Original Approval to increase the number of
units from fifty-four to eighty (the 2014 application). The units
would be smaller in size and would comprise thirty one-bedroom
units, forty two-bedroom units, and ten three-bedroom units. The
building would have the same number of stories, footprint, and
height as the originally approved fifty-four unit building.
CHR incorporated into its application and relied on the use,
height, and other variances granted in the Original Approval, and
requested a further density variance to increase the number of
units per acre. Although the proposed building would be in the
same location as the previously approved building, CHR requested
5 A-4634-15T2
a front yard variance of 2.78 feet because of the deduction of a
right-of-way granted to the Township for the improvements to Church
Hill Road, and for 0.3 feet because of the high-rise windows
beginning at the fourth floor. CHR also requested a waiver to
permit parking spaces of eight feet, six inches by eighteen feet
instead of the nine feet by eighteen feet required by the State
Residential Site Improvement Standards.
The Board held hearings on October 16, 2014, December 16,
2014, and March 12, 2015. During the December 16, 2014 hearing,
CHR amended the 2014 application to reduce the number of units
from eighty to seventy with ten floors of residences above four
floors of parking.
CHR's engineer, Calisto Bertin, testified about the
modifications to the site plan relating to the exterior of the
proposed building. He also testified about the reconstruction of
River Road, and the building's location and height.
CHR's architect, Conrad Roncati, testified about the
building's height, the distance between the building and the curb,
changed market conditions creating a need for a building with
smaller units, and the residential square footage added to the
proposed building between the 2006 Resolution and the 2014
application.
6 A-4634-15T2
CHR's licensed traffic engineer, Charles Olivio, testified
that the amended plan provided parking in excess of the required
amount of spaces, the seventy-unit project would not significantly
impact the traffic volume on the River Road intersection, and the
proposal of a seventy-unit building would reduce any increased
traffic volume arising from the project. He also testified that
the installation of the sidewalk and increase in road width during
phase one of the project would improve traffic flow in the area.
CHR's planner, Gabriel Bailer, testified as to the positive
and negative criteria with respect to the requested variances. He
testified as to both the enhanced criteria under Medici v. BPR
Co.,
107 N.J. 551 (1988), justifying the use variance to increase
the overall number of units, and with respect to the density
variance to justify the increase in the number of units from fifty-
four to seventy set forth in the relaxed standards under Coventry
Square, Inc. v. Westwood Zoning Board of Adjustment,
138 N.J. 285
(1994).
On April 16, 2015, the Board issued a resolution approving
the 2014 application (the 2015 Resolution), which stated:
on December 16, 2014, [CHR] . . . reduced the
requested number of residential apartment
units to [seventy] units from [eighty] units;
and
. . . the Board . . . previously granted Site
Plan Approval, a use variance, a height
7 A-4634-15T2
variance and other related variances to
construct a [fifty-four]-unit multifamily
complex and to construct nine (9) townhouses
. . . to . . . [CHR] pursuant to its Resolution
memorialized on July 20, 2006 as amended[.]
The 2015 Resolution specified the evidence the Board considered,
and noted the following:
The subject site is located in the R-1 Low
Density Residential/Townhouse District of the
Township. The subject site, which is
approximately 26,200 square feet of vacant
land, is part of Block 435, Lots 39 and 40 and
aggregates 1.68 acres. This Application is
for Amended Preliminary and Final Site Plan
of the previously approved site plan pursuant
to the Original Approval, use variance, height
variance, density variance, and other
incidental variances related to the site plan.
[] The allowable height in the R-1 Zone is a
maximum height of [thirty] feet and [forty-
five] feet in the Townhouse Overlay. [CHR's]
. . . proposed height is 114.17 feet for which
a d(6) height variance was previously granted
to . . . [CHR] pursuant to the Original
Approval. The height of 114.17 feet is the
same as proposed in the [2014] Application and
Amended and Preliminary and Final Site Plan.
The permitted maximum building coverage is
[thirty-five] percent. [CHR's] . . . proposed
building coverage is 29.3 percent. The
maximum impervious surface coverage is [sixty-
five] percent. [CHR's] . . . proposed
impervious surface coverage is 41.33 percent.
The front yard setback required is [ten] feet.
[CHR] . . . proposed a front yard setback of
0.3 feet, and therefore, requires a variance,
but it is acknowledged that the proposed
building is in the same location as approved
in the Original Approval; however, due to
onsite engineering changes when Church Hill
8 A-4634-15T2
Road was constructed, the road was moved
closer to the proposed building thereby
necessitating the setback variance for a
portion of the building even though the
building was not moved from its location as
approved by the Board in the Original
Approval. The rear yard setback required is
[thirty] feet and [CHR] proposed . . . a rear
yard setback of 10.38 feet versus the [eleven]
feet provided for in the Original Approval,
and therefore, requires a variance. The side
yard setback required is [fifteen] feet and
[fifteen] feet and [CHR] . . . proposed
[fifteen] feet and 4.9 feet; the side yard
measuring 4.9 feet requires a variance.
A total of [ninety-two] parking spaces are
required and [CHR] . . . provided 109 parking
spaces. The parking spaces measure [nine]
feet in width and [eighteen] feet in length.
Regarding use, a d(1) use variance is required
because high rise apartments are not a
permitted use in the R-1 district but such
variance was heretofore granted pursuant to
the Original Approval. Regarding density, a
d(5) density variance is required because
[CHR] has proposed 41.6 units per acre.
The 2015 Resolution stated the Board was fully satisfied that
CHR demonstrated the proof required by the Municipal Land Use Law
(MLUL),
N.J.S.A. 40:55D-1 to -112, Medici, and the Township's
Master Plan, and the record amply showed the proposed seventy-unit
high-rise building was not an inconsistent use within the R-1
District. The Board made the following findings:
1. There is no detriment to the surrounding
area by allowing for the construction of the
[seventy]-unit residence;
9 A-4634-15T2
2. There is no harm to the master plan or
zoning ordinance because the proposed
[seventy]-unit residence is permitted and
consistent with the surrounding uses of the
area;
3. [CHR] . . . has sustained [its] burden
of establishing the enhanced proofs and
further finds that there will be no
detrimental impact to the master plan and the
surrounding area;
4. The front yard setback of 0.3 feet is a
result of field conduction at the time of the
construction of [Church Hill] Road and that
the building itself is located in the same
place as was approved by the Board in the
Original Approval;
5. The height of the building is the same
as approved by the Board in the Original
Approval;
6. The slight difference in the one side
yard and the rear side yard from the Original
Approval is de minimis and resulted from a
miniscule shift of the building;
7. The infrastructure improvements
heretofore made to [Church Hill] Road will
eliminate any road construction during the
construction of the building;
8. The proposed [seventy]-unit apartment
building will have a de minimis impact on
[Church Hill] Road and surrounding roadways
and intersections;
9. The proposed density variance to permit
41.6 units per acre can be accommodated by the
subject property; and
[10.] There is adequate turnaround for the
delivery and refuse vehicles.
10 A-4634-15T2
On June 8, 2015, plaintiffs filed a complaint in lieu of
prerogative writs, seeking to overturn the Board's decision.
Plaintiffs contended the 2015 Resolution was void ab initio because
the Board was illegally constituted with municipal elected or
appointed officials in violation of
N.J.S.A. 40:55D-69, and
therefore, incapable of granting approval of the 2014 application.
Plaintiffs argued that Board Chairman Anthony Vainieri was
appointed as the Mayor's Chief of Staff with the official title
of confidential aide and appointed as a Commissioner for the North
Bergen Housing Authority. Vanieri was also elected as a Hudson
County Freeholder, a Committeeperson for his District in North
Bergen, and Chairman of the Hudson County Democratic Organization
(HCDO).
Plaintiffs argued that Board Vice-Chairman Frank Pestana was
the Executive Director of the North Bergen Municipal Utilities
Authority (MUA). Plaintiffs posited under
N.J.S.A. 40:14B-4, the
MUA is an instrumentality of the Township, the Township exercises
complete control over the appointment of MUA members, the Township
appoints five persons as members of the MUA board, and the MUA
board elects the Executive Director. Plaintiffs also argued that
Board member Emil Fuda was a supervisor in the Township's
11 A-4634-15T2
Department of Public Works and appointed to a position with the
North Bergen Parks Department.1
Plaintiffs contended the Board violated
N.J.S.A. 40:55D-70.1,
which required it to "at least once a year, review its decisions
on applications and appeals for variances and prepare and adopt
by resolution a report on its findings on zoning ordinance
provisions which were the subject of variance requests and its
recommendations for zoning ordinance amendment or revision, if
any."
Plaintiffs contended the Board's decision to grant the use
variance was arbitrary, capricious, and unreasonable because CHR
did not support the 2014 application by substantial credible
evidence. Plaintiffs argued that the reduction of the number of
three-bedroom units and addition of more one- and two-bedroom
units in response to the downturn in the economy and housing market
and to increase CHR's financial return did not constitute "special
reasons" to satisfy the positive criteria.
1
Although plaintiffs also argued Board members Ann Barattin and
John Bender were prohibited from serving on the Board, plaintiffs
did not address these individuals in their merits brief on appeal.
Thus, any issue relating to these individuals is deemed waived.
See Sklodowsky v. Lushis,
417 N.J. Super. 648, 657 (App. Div.
2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2018).
12 A-4634-15T2
Plaintiffs also argued that "CHR failed to meet the required
standard to address the general welfare or present a hardship,"
and failed to establish "special reasons" to satisfy the negative
criteria and prove the benefit of the project outweighed the
detriment.
Plaintiffs contended the Board's decision to grant the
density variance was arbitrary, capricious and unreasonable
because the 2014 application added 20,100 square feet of
residential floor space, which was a substantial change to the
project requiring notice to property owners within 200 feet of the
property. Plaintiffs also argued that CHR improperly included in
its density calculation the acreage of the land on which the
townhouses were located, which CHR did not own at the time of the
2014 application. Plaintiffs posited the proper calculation
excluding the townhouse acreage only permitted CHR to construct
fifteen units in the building under the permissible density of
twenty-five units per acre, and the difference between the fifteen
units and the proposed eighty units was approximately 400% and
resulted in a detriment to the surrounding properties.
Plaintiffs also argued the Board erred in relying on Bailer's
analysis comparing the density of the proposed seventy-unit high-
rise building to high-rise buildings in high-rise zones located
outside the R-1 District and Township. Plaintiffs alleged the
13 A-4634-15T2
Board refused to accept an exhibit reflecting the density
calculations prepared by a professional engineer, Nenad Krickovic,
and presented though the testimony of an objector, Katarzyna
Krickovic, and the Township's planner. Plaintiffs averred that
CHR provided no evidence that the density increase would not result
in a detriment to the surrounding properties.
Plaintiffs contended the Board's decision to grant the front-
yard setback variance was arbitrary, capricious and unreasonable
because CHR only proposed 0.28 feet, whereas eight feet was
required, and the Board erred in granting the variance based on
the reconstruction of Church Hill Road. Plaintiffs also argued
that CHR should have applied for a new height variance because the
height of the building increased by 11.67 feet.
Plaintiffs further argued the Board failed to address the
public safety issue raised by the North Bergen Fire Department,
which plaintiffs alleged led to CHR withdrawing the 2011
application, and the Board failed to inquire or demand that CHR
produce evidence to show the 2014 application complied with a
zoning ordinance that required the Township to promote public
safety by providing protection against fire.
Plaintiffs also contended that because there were substantial
changes between the Original Approval and the 2014 application the
14 A-4634-15T2
Board should have considered the 2014 application a new application
requiring CHR to include proper height and density calculations.
Plaintiffs cited several reasons why the 2015 Resolution was
inadequate. They alleged the Board only summarized testimony and
failed to recite certain testimony, including ordinances,
conditions in the 2007 Approval's subdivision approval and setback
provisions, minor discrepancies between the applications, certain
reports, and the absence of testimony on certain issues.
Plaintiffs also argued the Board failed to accept submissions from
the public, such as photographs of traffic congestion without a
correlating traffic study and CHR's unit advertising prices,
failed to require certain revised submissions from CHR's experts,
and made legal conclusions contrary to plaintiffs' position.
Following a hearing, the trial judge held the Board was not
illegally constituted pursuant to
N.J.S.A. 40:55D-69 because
Vainieri, Pestana, and Fudo did not hold any "elected office or
position under the municipality." The judge also found there was
no evidence of a conflict of interest, concluding as follows:
The court cannot abrogate the Board's decision
without more than speculation, suspicion, or
nebulous accusations [of a conflict of
interest]. The record before the court does
not reveal that any Board member had "an
interest not shared in common with the other
members of the public." Wyzykowski [v. Rizas,
132 N.J. 509, 524 (1993)].
15 A-4634-15T2
There is conjecture without proof that
the Board members had a direct interest in the
decision. There is no indication that any
Board member's relative or employer had a
financial interest in [the] outcome of the
decision; no indication that any Board member
held a personal interest in the decision, i.e.
an altruistic desire to see to it that a
relative or friend succeed[ed] in getting an
approval; or that any Board member's
"judgment" may have been "affected because of
membership in some organization and a desire
to help that organization further its
policies." Paruszewski [v. Twp. of Elsinboro,
154 N.J. 45, 59 (1998)].
The judge found that although the Board had not filed an
annual report since 2006, as required by
N.J.S.A. 40:55D-70.1,
plaintiffs cited no authority that this violation voided the 2015
Resolution.
The judge found the record supported the Board's decision to
reaffirm the use variance, and did not disclose the Board relied
on CHR's desire to increase the marketability of the units to
grant the variance. The judge determined that Bailer's testimony
supported the Board's finding that CHR satisfied the requisite
proofs for the positive criteria as required by the MLUL, Medici,
and the Township's Master Plan. The judge noted that the Board
specifically found Bailer demonstrated the proposed use would be
compatible with surrounding residential and commercial uses along
River Road; the downturn in the economy resulted in a demand for
smaller units; the design of the project accounted for the natural
16 A-4634-15T2
topography of the areas; and there was ample nearby public
transportation.
The judge determined that Bailer's testimony also supported
the Board's finding that CHR satisfied the negative criteria -
that there would be no substantial detriment to the public good,
and the building would not contravene, but would advance, the
intent and purpose of the Township's Master Plan and zoning
ordinances, and promote the purpose of the MLUL. The judge
concluded that plaintiffs failed to show the Board's re-affirmance
of the use variance was arbitrary, capricious or unreasonable.
Addressing the density variance, the judge found no new notice
was required because "[t]he increased residential space [was]
implicit in the request to exchange indoor parking levels for
residential units and in the request to increase the number of
residential units." The judge found the Board correctly determined
that CHR fully demonstrated the requisite proofs required by the
MLUL, Coventry Square, and Master Plan for the density variance,
and made substantial findings of fact supporting the approval of
that variance. The judge concluded as follows:
There were substantial findings of facts
supporting the Board's approval of the density
variance. The Board expressly referenced
Coventry Square. [Plaintiffs] . . . did not
prove that a different calculation for density
would mitigate any "detriment" to the public
because there was no proven detriment to
17 A-4634-15T2
mitigate. Price [v. Himeji, LLC,
214 N.J.
263, 284 (2013)]. The court cannot conclude
that the Board's determination was arbitrary,
capricious, or unreasonable.
The judge determined a new height variance was not required
because the approved height for the building in the 2015 Resolution
was the 114.17 feet incorporated from the Original Approval. The
judge found that any discrepancies in the testimony and CHR's
proofs were immaterial because the approved 114.17 feet was the
same as the proposed building in the 2014 application, and the
record did not reveal that CHR planned to construct the building
in excess of or below the approved height or otherwise deviate
from the approved plans.
The judge found the evidence supported the Board's finding
that CHR's proofs satisfied the required criteria for the bulk
variances. The judge also determined that CHR's withdrawal of the
2011 application was based on its review of a prior hearing, and
CHR did not specifically cite the fire official's letter as the
reason for the withdrawal. The judge found the Board properly
accepted Roncati's testimony that the 2014 application's plan did
not require the previously proposed turnaround cited in the 2011
application, and the fire official did not object to the 2014
application.
18 A-4634-15T2
Addressing the alleged inadequacy of the 2015 Resolution, the
judge found the Board was not required to state its findings from
each and every submission, accept cumulative submissions, or
incorporate all testimony and evidence. Rather, the Board was
only required to consider all the evidence, "but not cite every
single finding from every single piece of evidence." The judge
denied plaintiffs' application to invalidate and void the 2015
Resolution and dismissed their complaint with prejudice. This
appeal followed.
On appeal, plaintiffs reiterate that the Board was illegally
constituted, and thus, incapable of granting the approval; the
Board's decision was arbitrary, capricious, and unreasonable
because CHR's application was not supported by substantial
credible evidence; the Board's decision was not supported by
substantial credible evidence; and the 2015 Resolution was
inadequate.
We review a planning board's decision using the same standard
as the trial court. Cohen v. Bd. of Adjustment of the Borough of
Rumson,
396 N.J. Super. 608, 614-15 (App. Div. 2007) (citation
omitted). Like the trial court, our review of a planning board's
decision is limited. Smart SMR of N.Y., Inc. v. Borough of Fair
Lawn Bd. of Adjustment,
152 N.J. 309, 327 (1998). We give
deference to a planning board's decision and will only reverse if
19 A-4634-15T2
the decision was arbitrary, capricious, or unreasonable. Kane
Properties, LLC v. City of Hoboken,
214 N.J. 199, 229 (2013).
Where the issue on appeal involves a purely legal question, we
afford no special deference to the trial court's or the planning
board's decision, and must determine if the board understood and
applied the law correctly. D. Lobi Enters., Inc. v.
Planning/Zoning Bd. of the Borough of Sea Bright,
408 N.J. Super.
345, 351-52 (App. Div. 2009). Applying the above standards, we
discern no reason to disturb the Board's decision.
II.
At common law, a "public official is disqualified from
participating in judicial or quasi[-]judicial proceedings in which
the official has a conflicting interest that may interfere with
the impartial performance of his duties as a member of the public
body." Wyzykowski,
132 N.J. at 522 (citation omitted).
N.J.S.A.
40:55D-69 codifies this prohibition by providing that "[n]o member
[of a board of adjustment] may hold any elective office or position
under the municipality. No member of the board of adjustment
shall be permitted to act on any matter in which he has, either
directly or indirectly, any personal or financial interest."
"The Legislature's intent is the paramount goal when
interpreting a statute and, generally, the best indicator of that
intent is the statutory language." DiProspero v. Penn, 183 N.J.
20 A-4634-15T2
477, 492 (2005). Thus, "[t]he plain language of the statute is
our starting point." Patel v. N.J. Motor Vehicle Comm'n,
200 N.J.
413, 418 (2009). In considering a statute's language, we are
guided by the legislative directive that
words and phrases shall be read and construed
with their context, and shall, unless
inconsistent with the manifest intent of the
legislature or unless another or different
meaning is expressly indicated, be given their
generally accepted meaning, according to the
approved usage of the language.
[N.J.S.A. 1:1-1.]
Courts "will only resort to extrinsic aids, such as legislative
history, if the plain language of the statute yields 'more than
one plausible interpretation.'" State v. Williams,
218 N.J. 576,
586 (2014) (quoting DiProspero,
183 N.J. at 492). "If the plain
language yields the meaning of the statute, then our task is
complete." Ibid.
The plain language of
N.J.S.A. 40:55D-69 specifies that Board
members may not hold any "elective office or position under the
municipality." (Emphasis added). The statute qualifies the words
"office or position" with the words "elective" and "under the
municipality," narrowing the prohibition to elected municipal
officials. The statute does not, expressly or impliedly, prohibit
Board members from holding positions or offices that are
appointive, salaried, or under the municipality.
21 A-4634-15T2
Further, courts must make a fact-sensitive inquiry in each
case to determine whether a personal or financial interest warrants
disqualification. Paruszewski,
154 N.J. at 58. "[T]hey must also
be mindful that to abrogate a municipal action at the suggestion
that some remote and nebulous interest is present, would be to
unjustifiably deprive a municipality in many important instances
of the services of its duly elected or appointed officials."
Wyzykowski,
132 N.J. at 523-24 (citation omitted). The relevant
inquiry is whether there is a potential for conflict, not whether
there is an actual conflict of interest, and "where there do not
exist, realistically, contradictory desires tugging the official
in opposite directions," there is no potential for conflict.
Paruszewski,
154 N.J. at 59 (quoting LaRue v. Twp. of E. Brunswick,
68 N.J. Super. 435, 435-448 (App. Div. 1961)). A conflict of
interest occurs in the following four situations:
(1) "Direct pecuniary interests," when an
official votes on a matter benefitting the
official's own property or affording a direct
financial gain; (2) "Indirect pecuniary
interests," when an official votes on a matter
that financially benefits one closely tied to
the official, such as an employer, or family
member; (3) "Direct personal interest," when
an official votes on a matter that benefits a
blood relative or close friend in a non-
financial way, but a matter of great
importance . . .; and (4) "Indirect Personal
Interest," when an official votes on a matter
in which an individual's judgment may be
affected because of membership in some
22 A-4634-15T2
organization and a desire to help that
organization further its policies.
[Wyzykowski,
132 N.J. at 525-26.]
N.J.S.A. 40:55D-69 does not bar Vainieri from serving on the
Board, as he held no "elective office or position under the
municipality" and plaintiffs provided no evidence his positions
posed a potential conflict of interest. Vainieri was appointed,
not elected, as the Mayor's Chief of Staff/Confidential Aide and
as a Commissioner for the North Bergen Housing Authority. He was
an elected Hudson County Freeholder and Committeeperson for his
District in North Bergen, which also encompasses portions of Jersey
City and Secaucus; however, these are elective offices or positions
under Bergen County, not the Township.
Likewise, Vainieri's position as an elected Chairperson of
the HCDO does not fall within the bar in
N.J.S.A. 40:55D-69.
According to the New Jersey Democratic State Committee By-Laws,
"[t]he Council of County Chairpersons shall consist of all
Democratic County Chairpersons, as elected at the organizational
meetings of the County Committees." See New Jersey Democratic
State Committee, By-Laws, The Democratic Party Of The State of New
Jersey (June 13, 2013),
http://d3n8a8pro7vhmx.cloudfront.net/themes/52408ad68d57d9759600
0002/attachments/original/1380300629/BYLawNJDSC2013.pdf?13803006
23 A-4634-15T2
29. Thus, while it is an elected position, Vainieri was not
elected as part of the Hudson County Democratic State Committee,
a private political organization, by North Bergen citizens, but
by members of the New Jersey Democratic State Committee.
N.J.S.A. 40:55D-69 also does not bar Pestana from serving on
the Board, as he holds no elective office or position under the
municipality. In addition, plaintiffs provided no evidence that
holding the MUA Executive Director's position results in a
potential conflict of interest.
N.J.S.A. 40:14B-4 authorizes
municipalities to create municipal utilities authority as a
separate, legal entity. See
N.J.S.A. 40:14B-4; Wanaque Borough
Sewerage Auth. v. Twp. of W. Milford,
144 N.J. 564, 569 (1996).
Thus, Pestana was appointed by the governing body of the
municipality, not elected.
N.J.S.A. 40:55D-69 expressly prohibits
Board members from holding an elective office, not an appointive
office, and as such, does not bar Pestana from serving on the
Board.
N.J.S.A. 40:55D-69 does not bar Fuda serving on the Board.
Although his positions with the North Bergen Parks Department and
as a supervisor in the Township's Department of Public Works are
under the Township, they are not elective positions or offices.
Moreover, plaintiffs provided no evidence of any real or
potential conflict of interest arising from the elected or
24 A-4634-15T2
appointed positions of these Board members or that these Board
members or anyone closely related to them received a direct
financial or property benefit, or a nonfinancial, but valuable
benefit from approving the 2014 application. Plaintiffs also
provided no evidence that the 2104 application affected their
judgment because of their positions or desire to further the
policies of those other organizations. While Vainieri occupied a
position that required him to assist in implementing the Mayor's
policies and received financial compensation for his services,
plaintiffs did not specify how those policies or the financial
compensation related to the 2014 application.
Further, with respect to the Board's alleged noncompliance
with
N.J.S.A. 40:55D-70.1, plaintiffs provided no authority that
the Board's failure to file a report of its findings and
recommendations based on a review of contested ordinance
provisions warranted voiding the Board's approval of the 2014
application. Because the Board was not illegally constituted with
municipal elected or appointed officials in violation of
N.J.S.A.
40:55D-69, the 2015 Resolution is not void ab initio.
III.
The MLUL gives zoning boards the power to grant or deny use,
density, and height variances.
N.J.S.A. 40:55D-70(d). The MLUL
provides, in pertinent part, that the Board may grant a variance
25 A-4634-15T2
"[i]n particular cases for special reasons" for a use prohibited
in the district, an increase in density permitted pursuant to
N.J.S.A. 40:55D-4, and an increase in height of a building
exceeding ten feet or ten percent of the maximum height allowed
in the district.
N.J.S.A. 40:55D-70(d).
N.J.S.A. 40:55D-70
requires a finding of positive criteria or "special reasons," and
negative criteria "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. Sica v. Bd. of Adjustment,
127 N.J. 152, 156 (1992). To satisfy the "special reasons," or
positive criteria, as a predicate to a grant of a use variance
under (d)(1), an applicant must prove: (1) the use "inherently
serves the public good"; (2) "the use promotes the general welfare
because the proposed site is particularly suitable for the proposed
use"; or (3) the applicant would experience "undue hardship,"
because "the property cannot reasonably be developed with a
conforming use." Medici,
107 N.J. at 4; Grubbs v. Slothower,
389 N.J. Super. 377, 381, 386-87 (App. Div. 2007).
We conclude there was sufficient credible evidence supporting
the Board's finding that CHR satisfied the positive criteria for
the use variance, demonstrating that "the use promotes the general
welfare because the proposed site is particularly suitable for the
26 A-4634-15T2
proposed use." The Board specifically relied on Bailer's testimony
in finding that CHR had demonstrated "special reasons" for the use
variance. Bailer, in explaining the positive criteria, testified
that the proposed building
is consistent with the hi[gh]-rise character
for residential uses along River Road and
Boulevard East[,] . . . is more consistent
with the zone patterns of the surrounding area
[and] the footprint of the proposal building
is smaller than the footprint of townhouses
if they had been built on the site.
He noted that the "increase in the number of units is derived by
the demand for smaller one- and two-bedroom units from commuters
from New York City," and this site is suitable to meet that demand
because "there are several commuter bus lines along River Road to
provide transportation to New York City." He also testified that
the building would "provide[] optimal views of the Hudson River"
with minimal impact to the surrounding cliff face. Thus, the
change in the housing market was only one of many reasons CHR
advanced to support its request for a use variance.
There also was sufficient credible evidence supporting the
Board's finding that CHR satisfied the negative criteria for the
use variance, demonstrating that the variance could be granted
without substantial detriment to public good and would not
substantially impair the intent and purposes of the Master Plan
and zoning ordinances. With respect to any possible detriment to
27 A-4634-15T2
the public good, Olivio testified the seventy-unit project would
not significantly impact the traffic volume on the River Road
intersection and the reduced proposal of a seventy-unit building
would reduce any increased traffic volume arising from the project.
He testified that the motorists generated by the proposed building
"would account for less than one percent of the total intersection
volume at [Church Hill] Road and River Road," and "[t]hose vehicles
and their ability to enter onto the roadway system and then also
their ability to come from River Road into [Church Hill] Road
would not be encumbered by the development project." He also
testified that the installation of the sidewalk and increase in
road width as a result of the project added significant
infrastructure to the area.
Bailer testified that because "the footprint for the high-
rise building will be smaller than the permitted townhouses use
in the zone, [there] will [be] a reduction in impact[] to the
surrounding environmental features." He explained that the
increase from fifty-four units to seventy units would not create
any new detriments because the proposed building fits in with the
land use and densities of the surrounding areas, does not
significantly impact traffic, provides for sufficient parking, and
fulfills a market demand in the area for one- and two-bedroom
residences.
28 A-4634-15T2
Also, the Township's Master Plan sought to "encourage the
further redevelopment of underutilized and outdated areas" and
"encourage higher density development where it is permitted or
complimentary to existing development patterns." Further, the
Master Plan also noted that "Church Hill Road offers a particular
planning challenge due to the site['s] topography and irregular
road configuration" and "any prospective zoning changes [to that
area] should be consistent with other development in the area in
terms of height and density."
In explaining how the proposed building would not
substantially impair the intent and purposes of the Master Plan,
Bailer testified that the proposed building would provide a variety
of housing types and densities, in conformance with goal four of
the Master Plan based upon the surrounding area and its land use
patterns. He also testified that the building would contribute
to another goal of the Master Plan by creating appropriate
population density to contribute to the welfare of the community
and preservation of the environment. He explained that if CHR
were to build only townhouses as permitted in the R-1 District,
"it would encumber the whole site" leaving a "negative
environmental impact," but "by building a hi[gh]-rise building
that [is] consistent with the area it reduces the footprint and
. . . helps the environment and the rock face of the Palisades."
29 A-4634-15T2
Thus, there was sufficient credible evidence for the Board to find
that CHR satisfied the positive and negative criteria for a use
variance.
The Board's decision to grant a further density variance was
not arbitrary, capricious or unreasonable. "Density," as defined
by the MLUL, "means the permitted number of dwelling units per
gross area of land that is the subject of an application for
development, including noncontiguous land, if authorized by
municipal ordinance or by a planned development."
N.J.S.A. 40:55D-
4; Grubbs,
389 N.J. Super. at 384. "The board of adjustment has
sole jurisdiction over applications that seek a variance from a
zone's density restrictions." Grubbs,
389 N.J. Super. at 384
(citing
N.J.S.A. 40:55D-70). Density variances "are subject
generally to the same weighing analysis that applies to other (d)
variances. However, . . . if variances of this type are requested
in connection with a permitted use, a lower threshold equivalent
to the standard applicable to conditional use variances is
appropriate." Price,
214 N.J. at 296 (citation omitted). A less
demanding standard "reflect[s] the significant differences between
prohibited uses, on the one hand," and permissible uses that
deviate from an ordinance, on the other hand. Coventry Square,
138 N.J. at 297.
30 A-4634-15T2
In Coventry Square, the Court explained the stringent special
circumstances test of Medici does not apply because:
[i]n the case of prohibited uses, the high
standard of proof required to establish
special reasons for a use variance is
necessary to vindicate the municipality's
determination that the use ordinarily should
not be allowed in the zoning district. In the
case of conditional uses, the underlying
municipal decision is quite different. The
municipality has determined that the use is
allowable in the zoning district but has
imposed conditions that must be satisfied. As
evidenced by this record, a conditional-use
applicant's inability to comply with some of
the ordinance's conditions need not materially
affect the appropriateness of the site for the
conditional use. . . . The use-variance proofs
attempt to justify the board of adjustment's
grant of permission for a use that the
municipality has prohibited. Proofs to
support a conditional-use variance need only
justify the municipality's continued
permission for a use notwithstanding a
deviation from one or more conditions of the
ordinance.
[Id. at 297-98.]
We have applied this reasoning to density variances under (d)(5),
stating:
Such requests need not demonstrate that
the property is "particularly suitable to more
intensive development" in order to prove
"special reasons" under the MLUL. Rather, in
considering such applications, zoning boards
of adjustment should focus their attention on
whether the applicant's proofs demonstrate
"that the site will accommodate the problems
associated with a proposed use with [a greater
density] than permitted by the ordinance."
31 A-4634-15T2
For example, it might be shown that the
project promoted a more desirable visual
environment through development of otherwise
underdeveloped or vacant property, or, a
successful applicant might demonstrate that
the project's construction with the requested
density variance better promotes the character
of the neighborhood or better preserves
property values in the adjacent community.
Likewise, in addressing the so-called
negative criteria, the applicant would need
to demonstrate that the increase in density
would not have a more detrimental affect on
the neighborhood than construction of the
project in a manner consistent with the zone's
restrictions. For example, the applicant
might demonstrate that the increased proposed
density was only minimally greater than the
permitted density in the zone or in adjacent
areas. The applicant might show that it was
unlikely that a minimal increase in density
would create a "substantial detriment" to
nearby properties.
[Grubbs,
389 N.J. Super. at 388-90 (alteration
in original) (quoting Randolph Town Ctr.
Assocs., LP v. Twp. of Randolph, 324 N.J.
Super. 412, 416-17 (1999)).]
Thus, although the Board must consider the positive and
negative criteria as set forth in Medici, because it had granted
the 2006 application requesting a use variance to build a multi-
family high-rise apartment building with one-, two-, and three-
bedroom units, it was through the relaxed standard set forth in
Coventry Square.
Further, there was no error in the density calculation. The
zoning ordinance permits a density of twenty-five dwelling units
32 A-4634-15T2
per acre in the R-1 District. CHR requested a density variance
of 41.6 units per acre. Plaintiffs argue the Board erred in
granting a density variance because it miscalculated the
permissible density by incorporating acreage of the land where the
townhouses were located, erroneously compared the proposed
building's density to high-rise buildings outside of North Bergen,
and provided no evidence that a density increase would not pose a
detriment to the neighborhood and adjacent properties. We
disagree.
N.J.S.A. 40:55D-70(d) vests the Board with the power to "grant
a variance to allow departure from" the zoning ordinance which,
in this case, permits only twenty-five dwelling units per acre.
Based upon Bailer's and Olivo's testimony, the Board found that
CHR satisfied the positive criteria, demonstrating "that the site
will accommodate the problems associated with a proposed use with
[a greater density] than permitted by the ordinance," and the
negative criteria, demonstrating that the variance will not result
in substantial detriment to public good or substantially impair
the intent and purposes of the zone. Grubbs,
389 N.J. Super. at
389 (alteration in original). Bailer explained that the proposed
building would not result in any detriments based upon a density
analysis he conducted using buildings surrounding the property in
North Bergen, as well as those in surrounding municipalities.
33 A-4634-15T2
Based on that analysis, the density increase would be consistent
with the Master Plan, which addressed a need for higher density
near public transportation, and the surrounding area, in which
eight buildings had a greater density than that of the proposed
building.
Even if the densities with respect to the Master Plan related
to within the Township's boundaries, Bailer provided other reasons
as to why the site can reasonably accommodate the density increase,
such as sufficient parking, minimal impact on traffic, and the
market demand for this type of housing. We conclude there was
substantial evidence supporting the Board's approval of the
density variance and plaintiffs failed to show that a different
calculation for density would mitigate any detriment to the public
because there was no proven detriment to mitigate.
Although CHR sold the townhouses prior to the 2014
application, CHR did not erroneously include the land on which the
townhouses were located in its density calculation. According to
the New Jersey Association of County Tax Boards database, the
representations of CHR's counsel, and Bertin's testimony, no
subdivision of that land occurred, and the land is treated as one
tract of land, even though different individuals own the townhouses
on the land. The Board granted the density variance based on
evidence that the tax map designated the land where the townhouses
34 A-4634-15T2
are located as one property and on CHR's representation that it
was seeking an amendment of the Original Approval, which took into
consideration Lots 39 and 40 in granting a density variance.
Even if CHR erroneously included Lot 40 in its density
calculation, the Board still properly approved a density variance,
since CHR satisfied the relaxed Coventry standard. The Board
found that CHR satisfied both the positive and negative criteria
and recognized that "no matter . . . which way you count, it
becomes more people and more density in the same footprint area."
Moreover, the townhouse association provided CHR with an easement
authorizing it to construct the tower for the building.
Without relying on Lot 40 or the townhouses specifically, the
Board found the site where the building would be located could
reasonably accommodate the increased density, the proposed
building was in conformance with the Township's zoning ordinance,
and no detriment would result from the project. For example,
Olivio testified as to the minimal impact the building would have
on traffic patterns, and Bailer testified as to the smaller
environmental footprint the building would have compared to the
townhouses, which are a permitted use in the R-1 District.
We are satisfied the Board did not need to require CHR to re-
notice the affected property owners because, based upon the
evidence presented at the hearings and CHR's counsel's
35 A-4634-15T2
representation, the 2014 application did not constitute a new
application. We disagree with plaintiffs' argument that because
the 2014 application included an additional 20,100 residential
square footage, it was a substantial change from the Original
Approval that required CHR to give notice of that change to
property owners within 200 feet of the site.
The MLUL requires notice to the public and affected property
owners.
N.J.S.A. 40:55D-12(a). "We have recognized the importance
of the public notice requirements of the . . . [MLUL] and the fact
that such notice is jurisdictional." Perlmart of Lacey, Inc. v.
Lacey Twp. Planning Bd.,
295 N.J. Super. 234, 237 (App. Div. 1996).
The failure to provide notice "is fatal to . . . [a board's]
approval[.]" Id. at 236. The purpose of notifying the public
is to ensure that members of the general
public who may be affected by the nature and
character of the proposed development are
fairly apprised thereof so that they may make
an informed determination as to whether they
should participate in the hearing or, at the
least, look more closely at the plans and
other documents on file.
[Id. at 237-38.]
Once an approval has been granted, additional notice is only
required if an application is amended to the point that it may be
deemed "a substantially new application[.]" Lake Shore Estates,
Inc. v. Denville Twp. Planning Bd.,
255 N.J. Super. 580, 592 (App.
36 A-4634-15T
2 Div. 1991), aff'd o.b.,
127 N.J. 394 (1992). Re-notice is not
required so long as the "central focus" of the matter has not
changed. Schmidhausler v. Planning Bd. of Lake Como,
408 N.J.
Super. 1, 11, (App. Div. 2009).
Here, notice based on the additional 20,100 square footage
was not required because it did not render the 2014 application a
"substantially new application" and the "central focus" remained
the same. The additional square footage did not render the 2014
application a new application because CHR "infilled [the] areas
on the [ninth floor duplex units]," as it "had that volume[, and]
. . . that height." CHR essentially split the originally proposed
ninth floor in half and inserted a floor so that there was no
longer "double height spaces and duplexes" but a "new residential
floor out of those spaces that were already there."
Moreover, the central focus remained the density variance,
or increase in units, and the setback variance, as the 2014
application noted no other changes from the Original Approval.
Accordingly, no notice was required, given that the 2014
application, compared to the Original Approval, was an amended
application and evidence revealed that the additional 20,100
residential square footage did not enlarge the proposed building
itself.
37 A-4634-15T2
We reject plaintiffs' argument that because the 2014
application contained other additional substantial changes, the
Board should have treated it as a new application and required CHR
to submit density calculations using only Lot 39. "Where an
amended application is very substantially different from the
original it may be treated by the board and any reviewing court
as a new application." Id. at 11 (citation omitted). In
Schmidhausler, we found that an application was not a
"substantially new application" because the central focus of the
case was the three-lot subdivision of a lot that did not change
throughout the matter. Ibid.
Likewise, here, the Board correctly classified the 2014
application as an amendment to the Original Approval because the
central focus throughout the matter remained the use of a multi-
family high-rise apartment building. The fact that CHR added a
tenth residential floor, the residential square footage increased,
or the ownership of the townhouses changed, did not render the
application substantially new. The evidence indicated that the
building already had the height and volume for the additional
floor and square footage, and that CHR simply turned the top floor
of duplex units into single story units. The height of the
building approved in the Original Approval and the height in the
2014 application has remained the same.
38 A-4634-15T2
Further, change of ownership of the townhouses did not render
the 2014 application a substantially new application because the
focus of all of CHR's applications and all of the Board's
resolutions had always been the multi-family high-rise apartment
building and its use, density, and height. Contrary to plaintiffs'
assertion, at the very outset of the first hearing, CHR's counsel
specified that the 2014 application was "an amendment to a 2006
grant of approval, site plan approval and all requisite variances
in connection with a [fifty-four]-unit high-rise building" in
which CHR sought an increase in the previously granted density
variance and a setback variance due to existing site conditions.
The Board had sufficient credible evidence to consider the 2014
application as an amended, not a new application.
We find no merit in plaintiffs' argument that the Board erred
in granting the setback variance because CHR's engineer altered
the construction of the retaining wall, which resulted in
reconstruction of the road and a gross four feet front yard setback
variance.
N.J.S.A. 40:55D-70(c)(1) permits a variance from a
dimensional provision of a zoning ordinance, such as minimum front
yard setback when, due to exceptional conditions of the property,
strict application of a bulk or dimensional provision would present
"peculiar and exceptional practical difficulties" or exceptional
hardship to the applicant. Such exceptional conditions may include
39 A-4634-15T2
the dimensions of the property, topographic conditions, or another
extraordinary or exceptional feature unique to the property. Ibid.
"Undue hardship refers solely to the particular physical condition
of the property[.]" Jock v. Zoning Bd. of Adjustment of Wall,
184 N.J. 562, 590 (2005). The efforts made to bring the property into
compliance with an ordinance, such as attempts to acquire
additional land or reconfigure the improvements, are factors that
must be considered. See Ten Stary Dom P'ship v. Mauro,
216 N.J.
16, 29-30 (2013).
In addition, an applicant for a (c)(1) variance must satisfy
the negative criteria, proof that the variance will not result in
substantial detriment to the public good or substantially impair
the purpose of the zoning plan. Nash v. Bd. of Adjustment of
Morris Twp.,
96 N.J. 97, 102 (1984). The question of whether the
variance will cause substantial detriment to the public good
"focus[es] . . . on the impact of the variance on neighboring
properties." D. Lobi Enters., Inc.,
408 N.J. Super. at 358. With
respect to the statutory requirement that the variance not
substantially impair the intent and purpose of the zone plan and
zoning ordinance, the inquiry "focuses on whether the grant of the
variance can be reconciled with the zoning restriction from which
the applicant intends to deviate." Lang v. Zoning Bd. of
Adjustment of N. Caldwell,
160 N.J. 41, 57 (1999). This
40 A-4634-15T2
reconciliation "depends on whether the grounds offered to support
the variance . . . adequately justify the board's action in
granting an exception from the ordinance's requirements." Id. at
57-58.
Here, the required front yard setback was ten feet, but CHR
requested a front yard setback variance of 0.3 feet, which was
properly granted based on Olivio's testimony. In addition, Bertin
testified as to practical difficulties or exceptional
circumstances when he explained, "[d]uring the construction or
reconstruction of [Church Hill] Road there was some modifications
to the retaining wall design, the radius on the road map got
greater which forced the road to be pushed further away . . . and
into the site." According to both Olivio and Roncati, the road
moved closer to the building, but the building did not change
location. As such, because the building did not move locations,
there would be no impact on neighboring properties or substantial
detriment as a result of the variance or proposed building, thereby
satisfying the negative criteria. Plaintiffs failed to explain
how the changed method of construction for the retaining wall
leading to the expansion of the road created any substantial
detriment or did not constitute a practical difficulty for the
applicant. There was sufficient evidence supporting the Board's
finding that CHR satisfied the requirements for a setback variance.
41 A-4634-15T2
We are also satisfied there was no need for CHR to apply for
a new height variance. The Original Approval granted a height
variance of 114.63 feet and the evidence confirmed the height of
the proposed building in the 2014 application was 114.17 feet.
Lastly, we reject plaintiffs' argument that the Board failed
to consider public safety issues raised in the fire official's
November 21, 2011 letter to the Director of Public Safety. The
letter specified that the concerns were based on "the proposed
plans for Church Hill Estates [for] a [fourteen-]story [high-rise
building]" in 2011. The concerns were not based on the amended
plan in the 2014 application, and the fire official did not object
to the 2014 application.
Nevertheless, Bertin testified, "there is adequate area for
a truck to back in or go front in to the driveway at the north
side of the building." Roncati also testified that there is a
driveway on the north side of the building "that will be used and
designated for [a] loading area." Based on this testimony, the
Board properly found there was "adequate turnaround for the
delivery and refuse vehicles." Given that the Board's factual
findings are not overturned absent a "clear abuse of discretion,"
we are satisfied the Board addressed any concerns regarding
turnarounds and driveway space. Medici,
107 N.J. at 15.
42 A-4634-15T2
In sum, we conclude CHR provided ample evidence supporting
the 2014 application, and the Board's decision to approve it was
supported by substantial, credible evidence and was not arbitrary,
capricious, or unreasonable.
IV.
We have considered plaintiffs' contention that the 2015
Resolution was inadequate in light of the record and applicable
legal principle and concluded it is without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
However, we make the following comments.
In making factual findings, the board is
obligated to consider all the evidence in the
case rather than merely to accept as factual
every statement made by its own planning
consultant. Moreover, the board must explain
how its findings support its ultimate legal
conclusions.
[Morris Cty. Fair Hous. Council v. Boonton
Twp.,
228 N.J. Super. 635, 647 (Law Div.
1988).]
There is no requirement that the Board list every single piece of
evidence it reviewed and cite every single factual statement it
found in its decision. Rather, the standard of review is whether
there is sufficient credible evidence in the record to support the
Board's findings, and this court will not disturb a Board's factual
findings unless there is a clear abuse of discretion. Medici, 107
43 A-4634-15T
2 N.J. at 23; Fallone Props., LLC v. Bethlehem Twp. Planning Bd.,
369 N.J. Super. 552, 560-61 (App. Div. 2004).
The 2015 Resolution was adequate. It stated that the Board
reached its decision "after careful consideration of [the 2014]
[a]pplication and the testimony and exhibits presented by all
parties[.]" It specified that the Board considered all exhibits
from both CHR and the objectors and considered the testimony of
CHR's experts, the objectors, and the Board's planner and engineer.
It also specified which portions of testimony the Board relied
upon to make its factual findings, and set forth the factual
findings in detail. The Board made factual findings after
considering all the evidence presented, and explained how its
findings supported its ultimate legal conclusion.
Affirmed.
44 A-4634-15T2
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