LAKEWOOD REALTY ASSOCIATES v. LAKEWOOD TOWNSHIP PLANNING BOARD

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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3750-16T4
LAKEWOOD REALTY
ASSOCIATES,

          Plaintiff-Appellant,

v.

LAKEWOOD TOWNSHIP
PLANNING BOARD and RD
LAKEWOOD, LLC,

     Defendants-Respondents.
_____________________________

                   Argued January 14, 2019 – Decided February 5, 2019

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Ocean County, Docket No. L-2094-15.

                   R.S. Gasiorowski argued the cause for appellant
                   (Gasiorowski & Holobinko, and Sills Cummis & Gross,
                   PC, attorneys; R.S. Gasiorowski, on the briefs).

                   Kelsey A. McGuckin-Anthony argued the cause for
                   respondent Lakewood Township Planning Board
                   (Dasti, Murphy, McGuckin, Ulaky, Koutsouris &
                   Connors, attorneys; Jerry J. Dasti, of counsel; Martin J.
                   Buckley, on the brief).
            Robert C. Shea argued the cause for respondent RD
            Lakewood, LLC (R.C. Shea & Associates, attorneys;
            Robert C. Shea, of counsel; Dina M. Vicari, on the
            brief).

PER CURIAM

      This matter arises from the development of a commercial park in

Lakewood, New Jersey. Respondent RD Lakewood, LLC ("RD Lakewood")

purchased property within the project site from the initial developer,
                                                                                   1
Cedarbridge Development Urban Renewal Corporation ("Cedarbridge").

Cedarbridge developed the property for the Township of Lakewood. After the

project site was subdivided with municipal approval, three development

companies, including RD Lakewood, purchased some of the subdivided lots.

The companies sought land-use approvals for various structures and uses within

the project, anticipating their structures would share a water retention basin.

      RD Lakewood applied to the Township Planning Board for site plan

approval and certain minor variances for its portion of the project.            RD

Lakewood presented factual and expert testimony at the Board hearing in

support of its application. One objector participated in the hearing before the

Board: appellant Lakewood Realty Associates ("LRA").             Represented by


1
  Cedarbridge Development Urban Renewal Corporation was succeeded by
Cedarbridge Development, LLC.
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counsel, LRA presented arguments to the Board and cross-examined the

applicant's witnesses.   LRA also presented its own competing expert, who

testified why, in his opinion, the Board should deny the application.

      The Board approved the application in a resolution in June 2015. LRA

then filed an action in lieu of prerogative writs in the Law Division, seeking to

set aside the approval on various grounds, including alleged flaws in the public

notice that had been issued before the Board hearing. The trial court rejected

those contentions. This appeal by LRA ensued. In the meantime, RD Lakewood

has refrained from starting construction, due to the pendency of the litigation

and appeal.

      Although we disagree with most of LRA's claims of error, we reverse in

part the trial court's decision upholding the Board's approval. As amplified in

this opinion, we do so for two important reasons.

      First, we reverse the court's finding that the public notice issued for the

Board hearing was adequate. We instead conclude the notice was materially

deficient under controlling case law, including Perlmart of Lacey, Inc. v. Lacey

Township Planning Board,  295 N.J. Super. 234 (App. Div. 1996), and Pond Run

Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment,  397 N.J. Super. 335 (App. Div. 2008). Most significantly, the notice did not disclose


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to the public and neighboring property owners that the proposed uses, which

were tersely described as a "hotel" and a "bank," would include such components

within the hotel as a restaurant with a liquor license and banquet facilities.

      Second, we must reverse the trial court's decision on procedural grounds,

because RD Lakewood impermissibly provided to the court an expert

submission and other materials that had not been part of the record presented to

the Board before it approved the application. In all other respects, we reject

appellant's contentions.

                                        I.

      We summarize the facts and procedural history necessary for context.

This case involves a proposed development within the Cedarbridge Corporate

Campus ("the Campus"), which is a corporate park located in the DA-1

Cedarbridge Redevelopment Area in Lakewood. The Campus resulted from a

redevelopment project spearheaded by Cedarbridge. The Township passed a

resolution permitting the Mayor to execute an option agreement with

Cedarbridge. On June 1, 2000, the Township and Cedarbridge executed the

option agreement.2


 2 In 2010, residents of the Township challenged the Township's actions of
selecting and contracting with Cedarbridge. See Shain v. Twp. of Lakewood,
No. A-0824-13 (App. Div. Jan. 18, 2017). In Shain, this court affirmed in an
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      In 2002, Cedarbridge filed an application for general development

approval and preliminary major subdivision approval for the Campus. The

Department of Environmental Protection issued a Coastal Area Facilities Renew

Act ("CAFRA") permit in August 2002, granting Cedarbridge permission under

CAFRA to construct an office complex.

      The project site at contention in this litigation is a portion of this Campus,

namely Block 961.01, Lots 2.02 and 2.03.          These lots resulted from two

subdivisions of Block 961.01. In August 2005, the Board granted a resolution

authorizing a final major subdivision for Lots 1.02 and 2 in Block 961.01. The

resolution subdivided Lots 1.02 and 2 into four new lots: Lot 2.01, 2.02, 2.03,

and 2.04. Pursuant to the Board's approval of a subsequent resolution in 2012,

Lots 1.02 and 2.01 were further subdivided into two new lots: Lot 2.05 and 2.06.

      Development Applications for the Related Lots

      In 2014, defendant RD Lakewood filed a development application with

the Board for the proposed construction of a bank and a hotel on Lot 2.02 with




unpublished opinion the trial court's grant of defendant's motion for involuntary
dismissal of the case under Rule 4:37-2(b), thus upholding the validity of the
option agreement between the Township and Cedarbridge.
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a stormwater basin on Lot 2.03.3 RD Lakewood accordingly entered into an

agreement with Cedarbridge for the purchase of Lot 2.02 in July 2014.

      The Township engineer, Terrence Vogt, reviewed RD Lakewood's

submission in support of its development application and issued an engineering

review letter in February 2015.       The review letter confirmed the storm

management for the project – a basin on Lot 2.03 – would be built under another

company's Board-approved application.         The review letter further noted a

variance was requested for the rear-parking setback, proposing a setback for Lot

2.02 of five feet where twenty is required.

      Furthermore, Vogt recommended RD Lakewood provide the following to

the Board: a traffic analysis, a vehicular circulation plan, testimony to justify

reducing the number of off-street parking spaces, an architectural rendering for

the bank, testimony regarding the hotel building height, testimony regarding

HVAC equipment location and proposed screening for both buildings, testimony

regarding proposed loading activities at the facilities, testimony regarding if

trash and recycling collection will be provided by the Township Department of




3
   This stormwater management basin was initially proposed for Lot 2.02, but
later moved to Lot 2.03.


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Public Works or by private contractor, and testimony regarding ownership and

maintenance of the proposed wet well, pump station, and generator.

      The Public Notice

      Before the public hearings on RD Lakewood's application, the developer

prepared a public notice, which was both published and duly mailed to all

property owners within 200 feet of the site. The notice indicated that RD

Lakewood had "applied to the Lakewood Township Planning Board for amended

preliminary and final major site plan of Lots 2.02 & 2.03 in Block 961.01 on

[sic] located on the corner of New Hampshire Avenue and Pine Street, in the

DA-1 zoning district to construct a hotel as well as a bank[.]" (Emphasis added).

The notice listed the parking setback and parking space variances requested,

indicated the hearing had been scheduled for March 3, 2015 at the Lakewood

Township Municipal Building at 6:00 p.m., and directed the reader to where and

when maps and supporting documents could be accessed.

      The Public Hearings

      After being adjourned twice, the hearing on RD Lakewood's application

went forward before the Board on April 14. RD Lakewood applied for a

submission waiver and requested variances for a rear-parking setback and a

small variance for the number of parking spaces. Counsel representing LRA, an


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interested party and objector, was present at the hearing. 4 LRA's counsel asked

whether, in compliance with the engineer's report, a traffic study had been

submitted, and the Board's attorney acknowledged that a traffic study had not

been submitted.

      Brian Flannery, a licensed engineer and professional planner, appeared

before the Board with RD Lakewood's counsel, Adam Pfeffer, to answer

technical questions. Another expert, Scott Kennel, conducted a traffic analysis

for the site and testified at the hearing about this analysis.

      Flannery's testimony addressed a number of issues, including testimony

requested in Vogt's review letter. Among other things, Flannery identified some

differences between the approved CAFRA plan and the application, explaining

those differences were to accommodate the engineering features, including

shifting the basin to Lot 2.03. Flannery also testified about the parking variance,

consenting to the Board's request to add two parking spots in order to eliminate

the need for the variance.

      LRA's counsel questioned Flannery about an easement on Lot 2.03 and

about the restaurant and banquet facilities in the proposed hotel. LRA's counsel



4
 At the hearing, counsel for LRA at one point described his client as "Hotels
Unlimited," which we gather might be a predecessor or affiliate of LRA.
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asked Flannery about whether or not the parking calculation took into account

the people coming to the restaurant and banquet facilities. Flannery answered

that the parking calculations used are typical for hotels of this type and he felt

the number of parking spaces was more than sufficient and complied with the

ordinance.

      Before the Board voted on the application, LRA's counsel called his own

witness, Gordon Gemma, a licensed professional planner. Gemma testified to

numerous plan deficiencies, such as the plan's interference with an access road

on Lot 2.03 and that the plan is detrimental to the purpose of a 2013 smart growth

plan. In addition, Gemma testified that, while the C1 standard for granting a

variance, undue hardship, see  N.J.S.A. 40:55D-70(c)(1), did not apply, neither

did the C2 standard, which balances the benefits and burdens of variance relief,

 N.J.S.A. 40:55D-70(c)(2); Gemma posited there were no real benefits to the

variances and there were detriments. When asked to elaborate, Gemma claimed

having a parking lot within five feet of the adjacent property would increase the

amount of fumes, headlights, and wind-blown trash in the area, as well as be a

detriment to the purposes of the redevelopment plan set forth in the 2013 smart

growth study. Gemma concluded his expert testimony by asserting that RD




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Lakewood could develop the property in modified form without seeking the

requested variances.

      LRA's counsel raised a number of issues at the hearing, such as the lack

of a copy of the traffic study and that an agreement about the construction and

maintenance of the basin was not submitted to the Board prior to the hearing.

Other proofs were presented to the Board by RD Lakewood that are not

significant to this appeal.

      The Board's Approval

      After hearing closing arguments, the Board voted to approve the

application. The application was granted with conditions, which included: the

basin shall be landscaped along Pine Street, the easement on Lot 2.03 will be

vacated, RD Lakewood will provide the Board's engineer and attorney with an

agreement concerning proposed construction and maintenance, as well as a

proposed maintenance plan for the basin for their review and comment, two

additional parking spaces will be added to eliminate the need for a parking

variance, and the traffic in the rear of the hotel will be one way.

      The Board approved the application by a unanimous vote. On June 23,

2015, the Board adopted a resolution memorializing its corresponding findings

of facts and conclusions.


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      The Action in Lieu of Prerogative Writs

      In July 2015, LRA filed in the Law Division a timely complaint in lieu of

prerogative writs seeking the reversal of the resolution approving RD

Lakewood's application. RD Lakewood and the Board filed answers opposing

the lawsuit.

      The parties appeared before the trial court on September 7, 2016. LRA's

counsel began the proceeding by noting "numerous exhibits which were made a

part of appendices" and that he "thought that many of the exhibits that were

attached to [respondents'] briefs as exhibits were not before the Planning Board,

were not part of the record and should not be considered."

      Among other things, LRA's counsel argued that, although some type of

agreement existed as to the basin's construction and maintenance, that

documentation had not been submitted at the Board hearings and no stormwater

management plan was submitted before the hearing.            Counsel argued this

deprived the public of the right to consider, discuss, and raise objections to the

Board.

      LRA further argued the public notice was deficient because it identified

RD Lakewood's application as being for an "amended site plan."           Counsel




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argued the application constituted a "new" application, noting the proposed bank

and hotel had never previously been approved.

      Moreover, LRA argued the notice was deficient because the public was

never fairly apprised of what uses would be conducted on the property. All the

notice says in this regard is that the property is going to be the site for a "hotel"

and "bank." The notice did not mention the other uses that were anticipated with

the hotel, namely, a restaurant, bar, and banquet facilities. RDI's counsel argued

that, even though these accessory uses sometimes do accompany a hotel, a hotel

does not necessarily include a restaurant or bar under the Township's ordinances.

      Furthermore, LRA's counsel maintained the Board's approval should be

reversed because the notice failed to explain that an easement was being vacated.

Lastly, LRA's counsel noted numerous conditions still had to be satisfied after

the application was approved.

      The Trial Court's Decision

      On April 3, 2017, the trial court upheld the Board's approval and dismissed

plaintiff's complaint with prejudice.        In its accompanying detailed written

statement of reasons, the court determined, among other things:

                    RD Lakewood had included architectural plans
             that disclosed the proposed hotel as a Courtyard [by]
             Marriott, which depicted meeting rooms, food prep
             area, lounge, bar are[a] and dining area on page A-1 of

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              the plans. These are common amenities in a hotel of
              this size associated with a national brand.[5]

              [(Emphasis added).]

        The court determined the "conditions [on the Board's approval of the

application] were reasonable, consistent with the recommendations of it[s]

professional staff, and do not form a basis for vacation or reversal of the

resolution of approval."     The court ruled that the Board had appropriately

accepted the applicant's experts' testimony as being more credible than the

opinion of the expert offered by the objector. The court added that nothing in

the record indicated the Board's discretion in weighing the positive and negative

criteria of the plan was arbitrary, capricious, or unreasonable. According to the

trial court, the Board was properly afforded the opportunity to consider the

issues of traffic circulation and stormwater management and acted within its

discretion in deferring this consideration to its professionals.

        This appeal by LRA followed.




5
    The materials indicate the proposed hotel will be a Courtyard [by] Marriott.
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                                       II.

                                       A.

      Although LRA raises a host of other points on appeal, a pivotal issue

before us is the legal sufficiency of the public notice that RD Lakewood posted

in the newspaper and served on nearby property owners to alert interested parties

to its pending application before the Board.       Because this is a legal and

jurisdictional issue, we review it de novo. "A board's decision regarding a

question of law, such as whether it has jurisdiction over a matter, is subject to

de novo review by the courts and thus is afforded no deference."      Pond Run,

 397 N.J. Super. at 350 (citing TWC Realty P'ship v. Zoning Bd. of Adjustment

of Twp. of Edison,  315 N.J. Super. 205, 211 (Law Div. 1998), aff'd,  321 N.J.

Super. 216 (App. Div. 1999)).

      The Municipal Land Use Law ("MLUL"),  N.J.S.A. 40:55D-1 to -163,

requires an applicant to give public notice of an application for development at

least ten days prior to the public hearing on that application.  N.J.S.A. 40:55D- -

12. The MLUL requires the notice include "the date, time, and place of the

hearing"; "the nature of the matters to be considered"; "an identification of the

property proposed for development by street address, if any, or by reference to




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lot and block numbers"; and "the location and times at which any maps or

documents for which approval is sought are available[.]"  N.J.S.A. 40:55D-11.

     "Failure to provide proper notice deprives a municipal planning board of

jurisdiction and renders null any subsequent action." Shakoor Supermarkets,

Inc. v. Old Bridge Twp. Planning Bd.,  420 N.J. Super. 193, 201 (App. Div.

2011). "Proper notice requires, among other things, that public notices of

applications before a zoning board state 'the nature of the matters to be

considered.'" Ibid. (quoting  N.J.S.A. 40:55D-11).

     The full text of the public notice issued by RD Lakewood read as follows:

                  PLEASE        TAKE        NOTICE       that     RD
           LAKEWOOD, LLC contract purchaser, has applied to
           the Lakewood Township Planning Board for amended
           preliminary and final major site plan Lots 2.02 & 2.03
           in Block 961.01 on [sic] located on the corner of New
           Hampshire Avenue and Pine Street, in the DA-1 zoning
           district to construct a hotel as well as a bank which are
           both permitted uses within said zone. Lots [sic] 2.02 is
           seeking a rear parking set back variance where 20 feet
           is required and 5 feet is proposed. Applicant is seeking
           a variance for parking where 153 spaces are required
           for the hotel site and 11 spaces are required for the bank
           site for a total of 164 spaces and a total of 162 spaces
           are being provided.

                 Said application shall also include a request for
           any and all other variances and/or waivers that may be
           required by submission and discussion of the plan.



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                  The aforesaid has been scheduled for a public
            hearing before the Lakewood Township Planning
            Board on Tuesday, March 3, 2015 at the Lakewood
            Township Municipal Building, 231 Third Street,
            Lakewood, New Jersey, at 6:00 p.m. or as soon
            thereafter as possible.

                  The application maps and supporting documents
            are on file in the Lakewood Township Planning Board
            office in the Municipal Building, 231 Third Street,
            Lakewood, New Jersey, and are available for public
            inspection ten days prior to the date of the hearing
            during normal business hours.

            [(Emphasis added).]

      In Perlmart,  295 N.J. Super. 234, this court explained the importance of

the jurisdictional requirement that a developer's public notice adequately inform

the community of the nature of the proposed use for which the developer is

seeking a variance and other land use approvals. A properly crafted notice

serves to "ensure that members of the general public who may be affected by

the nature and character of the proposed development are fairly appraised

thereof." Id. at 237. This is "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. The notice

should provide "a common sense description of the nature of the application,

such that the ordinary layperson could understand its potential impact upon him


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or her[.]" Id. at 239. However, "[t]he notice need not be 'exhaustive' to satisfy

this standard." Shakoor Supermarkets, Inc.,  420 N.J. Super. at 201 (citing

Perlmart,  295 N.J. Super. at 239). Nor must the notice be couched in overly

technical terms. Perlmart,  295 N.J. Super. at 238-39.

      We applied these principles in Perlmart to invalidate a developer's

applications for site plan approvals, variances and a conditional use permit

where the public notice stated only that the applications were "for the creation

of commercial lots," and did not tell the public that lots were intended to be

developed as a shopping center. Id. at 237, 241. The defective notice failed to

"inform the public of the nature of the application in a common sense manner"

that would alert an ordinary layperson to consider obtaining further information

from the plans on file and possibly appear at the hearing to object. Id. at 239.

      Likewise, in Pond Run,  397 N.J. Super. 335, we applied these principles

in evaluating a public notice concerning a proposed project that required use

variances. We rejected in that case appellant's contention that a typographical

error in the notice specifying the parcel's lot and block number made the notice

jurisdictionally defective. Id. at 348-49. On that point, we concluded the

description of the property was sufficiently clear to vitiate the typographical

error. Ibid. However, we nullified the land use approval because of a different


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notice defect. Id. at 355. The notice merely described the proposed use – which

involved a 168-seat restaurant with a proposed liquor license – as a residential

mixed-use facility with "retail/office units." Id. at 346, 353-55. We found this

uninformative description was inadequate, and set aside the zoning board's

approval even though the project was already partially built. Ibid.

      The lesson of these cases is that appropriate public notice serves an

important "gatekeeping" function in land use matters. It is not sufficient for an

applicant to circulate and publish an uninformative and vague notice and expect

local residents to go down to municipal offices to inspect the plans in order to

ascertain the critical features of the proposal.

      Here, the public notice issued by RD Lakewood is likewise deficient with

respect to the material characteristics of the proposed uses. The notice states

that the project will include a "bank" and a "hotel." It does not describe the

activities that are contemplated within the hotel, specifically the plan to include

a restaurant, a banquet facility, and to obtain a liquor license so that alcohol will

be served on the premises. The Township's ordinances define a "hotel" as

follows:

             Hotel or Resort Hotel: A building having sleeping
             rooms for the temporary occupancy of guests and in
             which there is located a lobby or recreational area with
             interior hallway.

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This definition omits any mention of a restaurant, a bar, or a banquet hall. In

fact, the Township's ordinance contains a definition of a restaurant, as follows:

            A business establishment whose principal business is
            the selling of unpackaged food to the customer in a
            ready to consume state . . . and where the customer
            consumes these foods while seated at tables or counters
            located within the building.

The Township's zoning districts and regulations allows "hotels and/or

conference centers" as permitted uses in the zone. Yet, RD Lakewood's public

notice did not disclose that it envisioned this hotel to apparently function as a

conference center.

      Moreover, there is no mention in the notice of a bar or a liquor license. 6

As in Pond Run,  397 N.J. Super. at 354, a facility that is expected to be serving

alcohol, and thereby inviting patrons who will drive to the location in order to

consume intoxicating liquors, presents concerns of traffic and public safety that

would reasonably be of concern to surrounding residents and property owners.

      As we have noted, the trial court rejected this argument by LRA, reasoning

that "the plans on file sufficiently noticed any interested party that the hotel



6
  Counsel for the parties advised us at oral argument, and confirmed at our
request in post-argument submissions, that the proposed hotel would be eligible
for a liquor license under State alcoholic beverage laws because it would have
over 100 rooms.  N.J.S.A. 33:1-12.20(a).
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would include a restaurant/bar/banquet or meeting room amenity" and "[t]hese

are common amenities in a hotel of this size associated with a national brand."

We respectfully disagree.

      We take judicial notice that not all hotels contain a restaurant with such

amenities, including some brand-name establishments. Many hotels do not have

a bar and a liquor license. Many also do not operate a banquet facility or

conference center. Although the number of requested hotel parking spaces

disclosed in the notice suggests the hotel would accommodate many guests, an

average citizen would not likely interpret that to mean the hotel was expected to

serve alcohol or operate a banquet facility. While we agree the actual "brand

name" of the hotel can be omitted from the notice, Shakoor Supermarkets, Inc.,

 420 N.J. Super. at 201, that omission is not the source of the defect.

Furthermore, as case law instructs, the adequacy of the plans on file does not

cure a defective notice. See Perlmart,  295 N.J. Super. at 237-38.

      Viewing the totality of the circumstances, we conclude the public notice

issued by RD Lakewood was materially deficient in this respect. Given that

jurisdictional defect, the Board's approval must be set aside. 7


7
   We appreciate that LRA was aware of the application and extensively
participated in the Board hearing. But that participation does not cure the
insufficiency of the notice to the public at large.
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      That said, we reject the balance of appellant's criticisms of the notice.

None of those other criticisms is persuasive, and we adopt the trial court's sound

reasons for rejecting them.

                                       B.

      A separate basis for reversing the trial court's decision in this case stems

from the fact that respondents improperly supplemented the municipal record by

presenting to the court various reports and exhibits that were not presented to

the Board members before they voted to approve the application. These items

included partial documents related to litigation between different parties, an

unexecuted "partial agreement" for purchase of real estate, an option agreement,

and an "expert opinion" from Madison Title Agency, LLC. LRA timely objected

to those exhibits being considered by the trial court. The court did not address

this objection.

      A court's review of the Board's decision should be based solely on the

record before the Board. Kramer v. Bd. of Adjustment,  45 N.J. 268, 289 (1965).

Although the Board is not obligated to function in a vacuum, several of the

exhibits RD Lakewood presented to the trial court in defending the prerogative

writs action were prepared after the Board approved the application. One such




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exhibit is an expert opinion from Madison Title Agency, LLC, regarding a

roadway shown going through Lot 2.03.

      We disagree with respondents' characterization that these supplementary

exhibits were, in essence, all items of mere "resolution compliance" that did not

have to be presented to the Board members before they voted. Where, as here,

an objector represented by counsel actively participated in the hearing, it was

especially important that material exhibits supplied to bolster the applicant's

position not be supplied after-the-fact. Had those exhibits been submitted before

the trial court litigation, the objector might well have requested the Board

hearing be continued or reopened, and perhaps marshalled competing expert

proofs. The approval must be set aside on this independent basis.

      For these discrete reasons, we reverse the trial court's ruling and invalidate

the Board's decision, without prejudice to further proceedings before the Board

with proper notice.

      All other arguments raised on appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

      Reversed.




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