NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0278-24
AMERICAN OUTDOOR ADVERTISING, LLC,
Plaintiff-Appellant,
v.
EDISON TOWNSHIP ZONING BOARD OF ADJUSTMENT,
Defendant-Respondent.
___________________________
Argued June 4, 2026 ‒ Decided August 17, 2026 Before Judges Marczyk and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-
5750-23.
Keith A. Loughlin argued the cause for appellant (Inglesino Taylor, attorneys; John P. Inglesino, of counsel and on the briefs; Keith A. Loughlin, on the briefs).
Scott D. Salmon argued the cause for respondent (Jardim Meisner Salmon Sprague & Susser PC,
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attorneys; Scott D. Salmon, of counsel and on the briefs; Bhavini Tara Shah, on the briefs).
PER CURIAM In this prerogative writs matter, plaintiff American Outdoor Advertising, LLC (AOA) appeals from the September 10, 2024 order affirming defendant Edison Township Zoning Board of Adjustment's (Board) denial of its variance application and dismissing its complaint in lieu of prerogative writs with prejudice. Having considered the arguments, the record, and the applicable legal principles, we reverse and remand for a new determination by the Board.
I.
AOA is a limited liability company that builds and operates billboards throughout the United States. On March 29, 2022, AOA applied to the Board requesting preliminary and final site plan approval to install a double-sided, 100 foot high, 672-square-foot (fourteen feet by forty-eight feet) digital billboard with LED lighting on the northeast side of a leased industrial site at 740 Old Post Road in Edison. The 6.4-acre site contains several one-story self- storage buildings. The property is located within the L-I Light Industrial Zone District (L-I Zone) and both fronts and adjoins the northbound side of the New Jersey Turnpike (I-95), a twelve-lane interstate highway.
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The application also sought a "(d)(6)" height variance to permit a 100-
foot height where the maximum building height is fifteen feet. In addition, several bulk or "(c)" variances were sought: approval for a two-sided sign where only one sign face is permitted; an increase in maximum sign area from 250 square feet to the proposed 672 square feet; a reduction in the required front yard setback from the street line to ten feet from I-95; and a reduction in the required rear or side yard setback from forty feet to fifteen feet.
The proposed billboard measured 672 square feet, which is the standard size approved by the New Jersey Department of Transportation (NJDOT). An outdoor advertising permit was issued by the NJDOT, valid from May 16, 2022, through May 15, 2023. The permit, however, expressly stated it did not relieve AOA from obtaining local approvals.
The Edison Township Zoning Ordinance § 37-62.11 governs signs in the L-I Zone. Edison, N.J., Code § 37-62.11 (1999). Specifically, section (b)(3)(a), Freestanding Signs in L[-]I Zone (1999)1 stated:
1 The ordinance was amended on May 8, 2024, and subsection (b)(3)(a) was modified to address signs in commercial districts. Subsection (b)(3)(b) addresses freestanding sign and now reads:
(b). Freestanding signs shall be permitted as follows:
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Freestanding or billboard signs advertising products or services not sold on the premises, freestanding or billboard signs advertising or directing your attention to another premises, and any other sign unrelated to the premises on which the sign is erected, shall only be permitted in the L[-]I [Z]one. No such sign shall exceed fifteen . . . feet in height; such signs shall be only one-sided; and such signs shall not exceed two hundred fifty . . . square feet in area, and no sign permitted by this subsection shall be erected within two thousand five hundred . . . feet of any other sign permitted in this subsection.
While subsection (b)(3)(b), "[n]o signs permitted by [(b)(1)] shall encroach upon the required front yard, rear yard[,] or side yard setbacks."
1. No freestanding sign shall exceed fifteen . . . feet in height; the maximum width of any one . . . side of the sign shall not exceed twenty . . . feet and the total square footage of any such sign shall not exceed . . .
[]200[] square feet in area or one . . . square foot for each five . . . feet of street frontage, whichever is less. The total area of all signs on the subject property shall not exceed []500[] square feet in area in the aggregate, and the signs shall not be closer to one another than . . . []1,600[] feet.
2. Such signs shall be set back at least fifteen . . .
feet from the street line and no such sign shall encroach upon the required side yard or rear yard setback.
[Edison, N.J., Code § 37-62.11 (1999) (amended 2024).]
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The Board held four public hearings on AOA's application: September 20 and November 22, 2022; January 17 and February 21, 2023. During the September hearing, AOA presented its application through Tiago Duarte, a professional engineer. As Duarte provided testimony about the billboard face, the message, or compliance with NJDOT standards, Chair Rosemary Feterik interjected, announcing the Board would not approve the application as submitted with respect to the proposed flip time for changing messages on the digital billboard, stating:
I can stop you right there. This [B]oard does not – we don't have to go – because the [NJ]DOT says every [two] seconds, this [B]oard has never given [two]
seconds. The least amount of time this [B]oard has given has been [five] minutes.
So[,] if we're not on the same page, it doesn't pay to carry – to keep going . . . forward. But if you think you're going to get [two] seconds, this [B]oard is not going to give you [two] seconds . . . .
AOA objected to Feterik's statements and requested her recusal at the November hearing; however, she declined to recuse herself.
Duarte testified the proposed height of the billboard was necessary because the site sits approximately twenty-five feet lower than I-95, and mature trees—ranging from thirty to forty feet tall—surround the area. As a result, the billboard needs to be positioned above the tree line to ensure A-0278-24
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visibility. He noted the nearest residential properties were 650 to 900 feet away. Duarte presented a lighting exhibit demonstrating that beyond a 500 - foot radius from the billboard, there would be no appreciable change in ambient light levels, and at 300 feet, the impact would be minimal. He concluded the proposed billboard would not impact existing site operations, impervious surface, drainage, or traffic conditions.
Justin Taylor, a professional traffic operations engineer, testified concerning the traffic safety assessment for the project. He explained that studies by the Federal Highway Administration (FHWA) and NJDOT found digital billboards do not negatively impact traffic safety, and the proposed eight-second flip time would be both safe and efficient. Taylor presented a site visibility study, concluding the billboard would be visible to northbound and southbound motorists at optimal distances, but would not be legible until approximately 500 feet away. He testified the average driver views a billboard for one second, with an average fixation time of 0.4 seconds—both below the threshold for distraction. Taylor also testified the eight-second flip time is standard, and the billboard's location and design would not create any safety concerns for traffic.
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Taylor testified regarding the "cone of vision," explaining as the driver approached the billboard at about 500 feet, they receive the information depending on the text size, among other items. He stated the eight-second flip time is standard within New Jersey and recommended by the FHWA. Taylor also testified at the January 17 hearing.
At the November and January hearings, John McDonough, a licensed professional planner, testified the proposed billboard was an appropriate land use for the site, given its location in the L-I Zone. He explained the billboard would be optimally placed in the corner of the lot, away from residential properties, and the "V" configuration of the sign faces would be intentionally angled toward the highway. McDonough stated the height variance was necessary due to the elevation difference and existing vegetation, noting the nearest residence was more than "two football fields away."
McDonough also addressed both positive and negative criteria, stating the billboard would promote communication and free speech without causing substantial detriment to the public good or the zone plan. He testified the sign would not create an obtrusive visual impact, emphasizing "visibility alone is not a consideration in the negative criteria" and concluded the benefits of the application outweighed any detriments.
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After the Board's reorganization at the January 17 hearing, the newly appointed Chair, Michael Comba, presided over the final two hearings and the vote. At that hearing, the Board accepted expert testimony from Craig A. Bernecker, Ph.D., a professor of lighting. Dr. Bernecker was hired as an independent consultant by Watchfire Signs, LLC, to evaluate its LED module technology as it relates to the site. He reviewed a report prepared by Watchfire, which concluded the surrounding area up to 300 feet from the proposed billboard location "will see an almost undetectable difference in ambient light after installation of the digital LED billboards."
Dr. Bernecker focused on the nearby residential properties, rather than the adjoining property or the easterly condominium complex 600 feet from the proposed location of the sign. He performed calculations of the billboard illumination from at least 200 feet from the sign. Based on the calculations, Dr. Bernecker determined the billboard would not "contribut[e] appreciably" beyond the existing lighting conditions or pose any issues for residents because the sign faces would be equipped with horizontal and vertical louvers to block light emissions, preventing light pollution.
Dr. Bernecker also stated the billboard would not create a significant visual impact because the existing light sources near the residences would be
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far brighter than the proposed sign, the images on the sign would be static for a full eight seconds, not flashing, and the eight-second flip time is the industry standard. He ultimately concluded the billboard was compliant, as there would be no issue of light trespass.
Joseph Sparone, a civil engineer, oversaw the creation of the site plan.
Working with Duarte, he created visual simulations by superimposing the outline of the proposed billboard onto photos taken from various vantage points near residential properties, which were presented to the Board. Sparone explained the red box in the center of each photograph represented the approximate size and location of the fourteen by forty-eight-foot billboard and its structure. Each image showed the field of view the billboard would occupy without any tree screening, although the actual billboard would be located behind a screen of trees. The size and placement of the red boxes were determined based on survey data and the lines of sight from each photographic location.
The Board also heard from Timothy Stauning, the managing member of AOA, at the January and February hearings. He confirmed AOA is not a contract purchaser; instead, it leases the property where the proposed billboard would be located, and the property is not being subdivided. Stauning stated
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he was familiar with the zoning application submitted to the Board and confirmed the property owner, Edison Lock-Up LP, had consented to the application by completing the required owner's consent form.
Peter Steck, a licensed professional planner and consultant, testified in opposition to the application on behalf of a nearby resident.2 He conducted his own study and questioned the adequacy of AOA's studies, the accuracy of the height and location representations, and the impact of the billboard's lighting on nearby properties. Steck also noted the lack of analysis for Edison Glen Condominiums and Avenue C apartments. He argued the billboard would be visible to nearby homeowners, AOA had not justified the need for its height and dual faces, and the flip time would create a flashing effect. Steck further questioned whether the use was permitted by right and asserted the application did not meet the negative criteria.
Steck analyzed both the 2003 master plan and the 2011 re-examination report. Under the master plan, the L-I Zone was recommended for light industrial use, but under § 37-33.1 a billboard is not one of the permitted uses. He noted under § 37-62.11 freestanding signs and billboards are permitted but
2 The February 21, 2023 hearing transcript notes Steck represented a single nearby resident. However, the Board's resolution stated Steck represented the objectors.
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the ordinance essentially sets forth conditions and not permitted uses in the zone. Steck further argued the digital billboard was a prohibited sign under § 37-62.6, which prohibits signs with flashing lights, exposed high-intensity illumination, exposed neon tubes, or reflective material.
The Board's planner, Hank Bignell, disagreed with Steck's contention the master plan had not been re-examined within ten years. He testified that the master plan was re-examined and adopted in December 2021, and the resolution was passed in February 2022.
The Board also heard from six nearby residents, all living within 200 feet of the proposed billboard location. Each resident expressed opposition to the billboard, citing concerns about its location, visibility, and proximity to nearby homes.
The Board requested several conditions from AOA, including a reduction in height, turning off the billboard at night, a change from a flip display to a static image, and modification from a dual-faced to a single-faced sign. AOA declined.
At the conclusion of the February hearing, the Board unanimously voted to deny the application for preliminary and final site approval with the requested bulk and use variances. It concluded "[AOA] ha[d] not met all the
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negative and positive criteria to grant variances requested for the zone including faces, height, sign area, and setback requirements."
At its public meeting on August 29, 2023, the Board adopted a resolution memorializing its decision. The resolution noted the documents presented and the factual findings in the summarized testimonies of Duarte, Sparone, Taylor, McDonough, Stauning, Dr. Bernecker, and Steck.
Relevant to this appeal, the resolution included the following legal conclusions:
16. The Board concluded on February 21, 2023[,] that [AOA] had failed to justify the relief sought pursuant to N.J.S.A. 40:55D-70. [AOA] failed to meet all the negative and positive criteria to grant the requested variances for zoning including the dual face, height, [and] sign setback requirements. [AOA] had not demonstrated that the requested relief could be granted without substantial detriment to the zone plan, zoning ordinance, and the surrounding area for that particular site.
17. The proposal is a 672-square-foot digital advertising sign on each side with unconvincing [and]
conflicted testimony as to the height and visual impacts that would, if approved, operate [twentyfour ] hours a day with an [eight-]second flip time with no restrictions or amelioratory considerations to reduce impact upon neighboring lots. The Board asked for visual aids, none of which convinced the Board as to the lack of visual impacts. Board members questioned and asked [AOA] to clarify the line of sight for a 100-f[oo]t structure and remained
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unconvinced with the simulations as to the negative and detrimental impacts. The Board concluded that there are three existing billboards within 2,500 feet adding to the intensity and lack of need for this particular billboard. The Board found the lighting reports were insufficient for [AOA] to meet their burden as such reports failed to include Edison Glen Condominiums and Avenue C for the Board to determine if there would be an impact to those neighboring lots. During the course of the [a]pplication, the Board requested that [AOA]
consider and agree to changes that may have made the Board look at this application differently. Such changes included asking [AOA] to consider that the billboard should become static, its height should be reduced, opt for a single-sided billboard, and turn off the digital component at night. [AOA] decline . . .
any such possible conditions if an approval were to be granted.
AOA filed a complaint in lieu of prerogative writs on October 11, 2023, challenging the Board's denial as arbitrary, capricious, and unreasonable. The Board filed an answer and separate defenses.
The court conducted a one-day trial and affirmed the Board's denial on September 10, 2024. In its oral opinion, the court addressed AOA's argument regarding Feterik's recusal and whether her continued presence during two hearing dates prejudiced the proceedings and denied AOA a fair hearing. The court acknowledged Feterik's comment was "[c]learly . . . inappropriate and should have never been stated" and she "fell far short" of her quasi-judicial
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duty to be a fair and impartial decision maker. However, because Feterik participated in only two hearings, her impact was "mitigated." The court ultimately found her comment did not affect the overall hearing or deprive AOA of a fair process.
As to AOA's application, the court explained for a (d)(6) height variance, AOA must demonstrate the positive criteria by showing undue hardship—that is, the property cannot reasonably accommodate a structure that conforms to, or only slightly exceeds, the ordinance's height limit. The court noted AOA's planner testified the application promotes communication and free speech, but found there was no contractual obligation between Edison and AOA that would promote this municipal purpose. It recognized a special reason to support the variance, but rejected McDonough's testimony there was inadequate surface space and AOA required setback standard variance relief. The court also did not find the digital billboard contributed to development and civic design, considering these arguments more relevant to minimizing the negative impact of the billboard's use. It regarded the proposed billboard as an effort to maximize land use, rather than as an efficient use of the property.
II.
On appeal, AOA raises the following points for our consideration:
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POINT I. PREJUDICIAL COMMENTS BY THE BOARD CHAIR AT THE START OF THE FIRST HEARING ON THE APPLICATION THAT THE BOARD WOULD NOT APPROVE THE APPLICATION AS PRESENTED TAINTED THE ENTIRE PROCEEDINGS AND REQUIRES A REVERSAL OF THE TRIAL COURT'S ORDER OF DISMISSAL.
POINT II. THE TRIAL COURT ERRED IN SUSTAINING THE BOARD'S DENIAL OF [AOA]'S APPLICATION, A DECISION THAT WAS ARBITRARY, CAPRICIOUS[,] AND UNREASONABLE.
POINT III. THE TRIAL COURT ERRED IN PERMITTING THE BOARD TO DISREGARD ITS OWN PRECEDENT AND THE CONTROLLING STATE STANDARDS FOR DIGITAL BILLBOARDS.
After oral argument, we granted the Board's motion to file supplemental briefing to address the sufficiency and adequacy of the resolution concerning the positive and negative criteria of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -171. It argued: the second "whereas" clause identifies the ordinance and the five variances sought; the legal conclusion in paragraph sixteen "explicitly invokes N.J.S.A. 40:55D-70 and applies both the positive and negative criteria"; the factual findings were made regarding each expert and weight was given to each; and the factual findings in paragraph seventeen
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address both the positive and negative criteria justifying denial of the application.
In opposition, AOA reasserted the resolution did not contain sufficient findings of fact and conclusions of law justifying denial. And the Board attempts to improperly cure the deficient resolution through supplemental briefing.
III.
"When reviewing a trial court's decision regarding the validity of a local board's determination, 'we are bound by the same standards as . . . the trial court.'" Jacoby v. Zoning Bd. of Adj., 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "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, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)).
Thus, we defer to the actions and factual findings of local boards.
Jacoby, 442 N.J. Super. at 462. "A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR
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of N.Y., Inc. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj., 127 N.J. 152, 166-67 (1992)). "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., 172 N.J. 75, 82 (2002). The applicant bears the "heavy burden" to show the evidence so overwhelmingly favored the application that the board's decision was arbitrary, capricious, or unreasonable. Med. Realty Assocs. v. Bd. of Adj. of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).
However, we review de novo a board's conclusions of law. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Thus, we exercise plenary review of a board's interpretation of the MLUL. See Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).
A. Comments of Then-Board Chair Feterik We address whether Feterik's statement made at the start of the September hearing prejudiced the first two hearing dates, rendering the proceedings unfair. Relying on Kane Properties, LLC v. City of Hoboken, AOA argues actual prejudice need not be shown; rather, "an objectively reasonable belief that the proceedings were unfair is sufficient" to invalidate municipal action. 214 N.J. 199, 222 (2013) (quoting DeNike v. Cupo, 196 N.J.
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502, 517 (2008)) (internal quotation marks omitted). It contends Feterik's prejudgment and refusal to recuse herself denied AOA a fair hearing, and her influence as chair tainted the entire proceeding, irrespective of whether she ultimately voted.
Additionally, "[t]he law presumes that boards of adjustment and municipal governing bodies will act fairly and with proper motives and for valid reasons." Kramer, 45 N.J. at 296. "Suffice it to state that a hearing cannot be fair if the hearing body prejudges the matter before the hearing begins." Nanavati v. Burdette Tomlin Mem'l Hosp., 107 N.J. 240, 246-47 (1987).
Guided by these legal principles, we are persuaded by AOA's argument.
Both the trial court and the Board acknowledged Feterik's comments were inappropriate. We add her comments reflected an attempt to prejudge the outcome. Specifically, Feterik emphatically stated: "But if you think you're going to get [two] seconds, this [B]oard is not going to give you [two] seconds as the [NJ]DOT." When AOA's counsel sought clarification, Feterik further responded: "[T]his [B]oard basically gives [five] minutes, and not [two] seconds as a change." Despite these remarks, the Board's attorney did not issue a cautionary instruction reminding the Board to consider only the testimony
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and evidence presented at the hearing and apply the law and facts as required by the MLUL.
The record does not show the Board as a whole prejudged the hearing, as eight board members participated in the September hearing. Of the nine Board members present at the February hearing, five also attended the September and November hearings. We are not persuaded Feterik's absence from the Board at the time of the vote mitigated the impact of her earlier comment. The flip time of the digital billboard remained a recurring issue throughout the proceedings and ultimately served as one of the bases for the denial of AOA's application. We conclude AOA had an objectively reasonable belief that Feterik's prejudicial comment was "something more than a fanciful possibility" and there was "some reasonable basis" to believe the hearing was tainted. Kane, 214 N.J. at 222.
B. The Denial of AOA's Application AOA argues the Board disregarded its own precedent and controlling state and federal standards for digital billboards. It contends the Board previously approved similar billboards and failed to consider the Federal Highway Beautification Act, 23 U.S.C. § 131; the New Jersey Roadside Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -33; and NJDOT
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regulations, N.J.A.C. 16:41C-1.1, to establish overarching requirements for billboards and generally preserve municipal zoning authority unless state requirements preempt local regulation due to a direct conflict. See E & J Equities, LLC v. Bd. of Adj., 226 N.J. 549, 567-68 (2016). It maintains these regulations allow larger, taller, and double-sided billboards with eight-second flip times. AOA maintains the Board's reliance on outdated and overly restrictive local ordinances, and its failure to follow its own prior approvals, was arbitrary and capricious, especially given the lack of a recent master plan re-examination as required by N.J.S.A. 40:55D-89.
A bulk variance under N.J.S.A. 40:55D-70(c)(2) requires balancing the benefits of deviation against any zoning detriment without the enhanced special reasons showing. See Medici v. BPR Co., 107 N.J. 1, 4 (1987); Kaufmann v. Plan. Bd. for Warren, 110 N.J. 551, 553 (1988). Under N.J.S.A. 40:55D-70(d)(6), the MLUL gives zoning boards the power to grant or deny use and height variances. Both provisions require an applicant to satisfy both the positive and the negative criteria. See Price, 214 N.J. at 285; Jacoby, 442 N.J. Super. at 463.
Applying these standards, we reject the Board's argument its resolution contained adequate findings of fact and conclusions of law sufficient to permit
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judicial review. Absent from the resolution is any analysis of the four-part procedure for considering the positive and negative criteria. See Sica, 127 N.J. at 165-66. Instead, the Board issued a general denial, stating AOA had not satisfied all the negative and positive criteria required to grant the requested variances for the zone related to faces, height, sign area, and setback. The Board did not distinguish between the (d)(6) and (c) variances in paragraphs sixteen and seventeen of the resolution. Although the second prefatory "whereas" clause identifies the ordinances and the five variances requested, we do not interpret these as factual findings.
Here, the Board rejected the testimony and reports of AOA's experts.
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 v. Bd. of Adj., 370 N.J. Super. 319, 338 (App. Div. 2004) (citing Cell S. of N.J., Inc., 172 N.J. at 87). 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., 172 N.J. at 88 (holding a board's decision must be "root[ed] . . . in substantiated proofs rather than unsupported allegations."). The resolution relies primarily
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on the concerns expressed by its members and objector, rather than qualified expert testimony to prove the adverse effects associated with the requested variances. Such reliance renders the Board's denial arbitrary, capricious, and unreasonable. Ibid.
The record demonstrates the trial court reviewed the application and the testimony presented at the Board's hearings and made its own factual findings on the record. However, its legal conclusions made minimal references to the MLUL. We note it is not the court's province to do the analysis required of the Board. Where the Board's resolution failed to comply with the requirements of N.J.S.A. 40:55D-10(g) because it did not sufficiently demonstrate, with reference to established facts and testimony presented, th e court erred in affirming the dismissal of the application. Where findings of fact are inadequate, the remedy is for the court to remand for adequate fact finding. Smith v. Fair Haven Zoning Bd., 335 N.J. Super. 111, 123 (App. Div. 2000).
For these reasons, we reverse the trial court's order and remand this matter to the Board to reconsider the application on the existing record and take a new vote on the application. We direct the Board to comply with N.J.S.A. 40:55D-10(g), setting forth specific findings of fact to support its
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decision. See Smith, 335 N.J. Super. at 123. Lastly, in light of the trial court's expression of an opinion on AOA's application, we are constrained to direct that a different trial court be assigned to hear the matter in the event a second resolution is challenged by a complaint in lieu of prerogative writs proceeding.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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