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Jackson Township's Planning and Zoning Boards have their own professional traffic expert.

Lakewood Township's Planning and Zoning Boards do not.

A recent decision by the New Jersey Appellate Division highlights why Lakewood's boards would benefit from getting their own professional traffic expert - as they would be better equipped to protect themselves from litigation that threatens to overturn their decisions.

The instant matter involves the Township of East Brunswick's Zoning Board of Adjustment. The Board denied Ferris Farm Inc. of East Brunswick, LLC's use and density variance application.

Ferris Farm filed a complaint in lieu of prerogative writs in New Jersey Superior Court in Middlesex County, challenging the Board's denial as arbitrary, capricious, and unreasonable.

The trial court judge agreed and vacated the Board's denial, and directed the Board to adopt a resolution approving plaintiff's application, granting the use and density variances.

The Board appealed this decision.

In a written ruling just released, Appellate Division Judges Gilson, Berdote Byrne, and Bishop-Thompson agreed with most of the trial court's ruling.

"We have long recognized that zoning boards, 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, quoting Kramer v. Bd. of Adj., Sea Girt.

We give deference to the actions and factual findings of local boards. Jacoby.

"A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Bor. of Fair Lawn Bd. of Adj., quoting Sica v. Bd. of Adj. of Wall; see also Kane Props., LLC v. City of Hoboken. 

"We do not review the wisdom of [a planning board's] decision, rather . . . we merely 'determine whether the board could reasonably have reached its decision.'" Pullen v. Twp. of S. Plainfield Plan. Bd., quoting Davis Enters, v. Karpf.

"Accordingly, we will not disturb a board's decision unless we find a clear abuse of discretion." Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp.

In this case, the Appellate Division found that the Board abused its discretion - in large part because they did not have the benefit of independent experts when they denied the application.

The MLUL (N.J.S.A. 40:55D-70(d) governs land use and development planning generally and specifically authorizes zoning boards to grant variances under circumstances defined in the statute. The statute requires a finding of "special reasons" or positive criteria, and "a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance" or negative criteria.

Looking at the negative criteria, the trial court concluded that the record before the Board was devoid of substantial credible evidence to support the Board’s findings and conclusions concerning a substantial impairment to the public good. The court concluded the Board's "denial was rendered in spite of preponderating, uncontroverted and substantial, credible evidence adduced by the [p]laintiff in the record that supported – and proved – its satisfaction of both the positive and negative criteria." Thus, the court found that the record "warranted the Board’s grant of the use variance and attendant density variance," and approval of the bifurcated application.

A board's resolution "must contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." N.Y. SMSA.

We have rejected as deficient memorializing resolutions that summarized, in a very cursory fashion, the testimony presented by the applicant's witnesses, and reiterated selected comments by Board members and the public.

"Statements of individual Planning Board members, 'represent informal verbalizations of the speaker's transitory thoughts, they cannot be equated to deliberative findings of fact . . . . '" Rocky Hill Citizens for Responsible Growth v. Plan. Bd. of Rocky Hill, quoting N.Y. SMSA v. Bd. of Adj. of Twp. of Weehawken.

Although a zoning board may reject an applicant's expert testimony, it must do so on an identified basis, such as reliance on contrary expert testimony, and should not rely on "bare allegations or unsubstantiated beliefs." N.Y. SMSA, citing Cell S. of N.J., Inc. A resolution relying on comments and concerns from board members or residents will not satisfy a board's obligation to ground its decision on evidence presented during a hearing. Cell S. of N.J., Inc. holding a board's decision must be "rooted . . . in substantiated proofs rather than unsupported allegations."). A board's reliance upon non-expert testimony from its members or concerns voiced by residents rather than qualified expert testimony to prove the adverse effects associated with a requested variance renders a board's decision arbitrary, capricious, and unreasonable.

Here, the trial court relied on N.Y. SMSA and found the Board's resolution contained a "mere recital of testimony" and "conclusory statements couched in statutory language" contrary to the requirements of applicable law. The court explained the Board's findings in the resolution were in "clear conflict" with the "uncontroverted testimony" provided by plaintiff's expert witnesses. Moreover, the "conclusions reached and recited in the resolution lacked substantial, credible evidence in the record to support" the Board's action. 

Having reviewed the record, we conclude the Board's resolution was deficient because it simply identified the applicant, described the proposed development, provided a cursory summary of the expert witness testimony, and reiterated select comments by board members as a basis for the denial of the application. In sum, the Board's resolution failed to meet the requirements of N.J.S.A. 40:55D-10(g). See Medici.

The only issue which the Appellate Division disagreed with the trial court's ruling was with the trial court directing the Board to adopt a resolution approving the application, granting the use and density variances. The Appellate panel reversed that portion of the trial court's order and directed that the matter be remanded to the Board. The Board is to reconsider the application on the existing record and take a new vote on the application. If the Board votes to deny the application, its resolution must expressly explain how it has overcome the errors identified by the trial court. If it cannot explain how it can overcome those errors, the Board should vote to approve the application. Either way, the Board shall issue a new resolution, setting forth specific findings of fact to support its decision.

Ferris Farm was represented by Attorneys Craig M. Gianetti and Amanda M. Kronemeyer Esq. of Day Pitney LLP.

The Board was represented by Attorney Jay A. Weiner Esq. of Weiner & Weiner, PC.

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Anonymous said...

Our committee-men clearly could care less about fixing this glaring problem. They care more about their developer buddies, who will have a much harder time sneaking through their ridiculous plans and manipulating the process. Let's face it; the residents of this town are on the very bottom of their priority list.

Anonymous said...

Meir & Menashe are not giving their time, etc for the benefit of the Tzibur, and they are entitled to make a comfortable living, they have kids in private schools, kids to mary off, etc.