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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 30, 2018
• Docket: A-0206-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0206-15T1

BERGEN RIDGE HOMEOWNERS ASSOCIATION, INC.,

Plaintiff-Appellant,

v.

TOWNSHIP OF NORTH BERGEN PLANNING BOARD, RIVERVIEW DEVELOPMENT, LLC and TOWNSHIP OF NORTH BERGEN,

Defendants-Respondents. _____________________________

Argued March 1, 2018 – Decided August 30, 2018

Before Judges Simonelli, Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1791-14.

Ira E. Weiner argued the cause for appellant (Beattie Padovano, LLC, attorneys; Ira E. Weiner and John J. Lamb, of counsel and on the brief; Daniel L. Steinhagen, on the brief). John R. Dineen argued the cause for respondent North Bergen Planning Board (Netchert, Dineen & Hillmann, attorneys; John R. Dineen, on the brief).

Jeffrey A. Zenn argued the cause for respondent Riverview Development, LLC (Cullen & Dykman LLP, attorneys; Jeffrey A. Zenn, on the brief).

Cindy Nan Vogelman argued the cause for respondent Township of North Bergen (Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy Nan Vogelman, of counsel and on the brief; Qing H. Guo, on the brief).

PER CURIAM

In this prerogative writs matter, plaintiff Bergen Ridge

Homeowners Association, Inc. appeals from the July 27, 2015 Law

Division order for judgment, which affirmed the decision of

defendant Township of North Bergen Planning Board (Board) to grant

the application of defendant Riverview Development, LLC

(Riverview) to build a multi-family apartment building with

underground parking on a site bordering the Hudson River. For the

following reasons, we affirm.

I.

In May 2005, Riverview acquired Block 438, Lots 4A and 4B,

and part of Lot 1 in the township (the property), a vacant lot at

8200 River Road bordering the Hudson River.1 Because of the

1 Plaintiff does not challenge Riverview's title to Lot 1.

2 A-0206-15T1 shoreline, the 26.37-acre site was irregularly shaped and

contained 19.7 under-water acres and only 6.07 uplands.2 The

property changed depths at multiple points; for example, its widest

part ranged from ninety to 420 feet with a midpoint depth of 260

feet. It was located in the P-1 (river front) zone. When Riverview

purchased the property, it contracted with defendant Township of

North Bergen (Township) to provide fifty parking spaces for use

by nearby residents at a monthly rental fee.

In 2006, Riverview filed a site plan application3 to construct

a single building with three nine-story towers containing 2334

residential units. The project included a three-story structure

less than fifty feet in height, with two floors of enclosed parking

with 537 spaces built underneath a common area with lobbies, a

fitness room, a lounge, and offices. The three residential towers

would be built on top of this three-story structure.

The project also included a .6 acre park area with a sixteen-

foot wide public walkway bordering the river. The total building

footprint was 2.83 acres. The project had three driveways

2 The property also contained land designated to become part of a county roadway. 3 The Township rejected an earlier application because Riverview failed to apply for a building coverage variance. 4 The original application requested 256 units, but twenty-three townhouses were ultimately removed from the plan.

3 A-0206-15T1 including one bordering an undeveloped tract in the neighboring

Borough of Edgewater.

Township of North Bergen Zoning Ordinance (NBZO) 11.2(d)(1)

required residential and office buildings along the waterfront to

have their longest dimension in an east-west orientation, or

perpendicular to the water, in order to maximize views of the

river and the New York skyline. The project's three-story

structure was oriented with its longest dimension in a north-south

direction, in violation of the ordinance. However, the residential

towers built on top of the three-story structure were oriented

with their longest dimension in an east-west direction, in

compliance with the ordinance.

To further protect views of the river, NBZO 11.4 required

"view corridors" of at least fifty feet in width positioned at the

ends of streets perpendicular to the river. Within the view

corridors, no building could exceed five stories or fifty feet in

height. Riverview's project included view corridors that were 250

feet wide.

NBZO 11.3(a)(3) and Table 3.10.a, supplementing NBZO 3.10(a),

provided that in the P-1 zone, the maximum permitted building

coverage was 35% of the lot, excluding lands under water. Building

coverage is the percentage of the area of a lot covered by a

building or any part of a building. Riverview's proposed building

4 A-0206-15T1 coverage was 46.6%, including the parking garage. Table 3.10.a

permitted seventy-five dwelling units per acre but Riverview

proposed only forty-three per acre. Table 3.10.a required a ten-

foot landscaped buffer at the side edge of the property. At the

northern property line, the project included only a three-foot

landscaped buffer.5

NBZO 7.1(b)(4)(d) provides that aggregate lighting in parking

areas should be no more than two "foot-candles"6 and should not

shine on adjacent properties. At the property line, lighting

intensity at ground level should be less than .1 foot-candle.

NBZO 10.4(a) required the Board to make timely decisions on

site plan applications. NBZO 10 required the Board to make

findings about compliance with Township ordinances and the

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

adequacy of open space, provisions for public services, vehicular

and pedestrian traffic, light and air, recreation and physical

enjoyment, and the development's impact on the area.

In the P-1 zone, the Township permitted planned unit

residential developments (PURD) defined as:

[a]n area . . . with a minimum contiguous acreage of five (5) acres, to be developed

5 Ultimately, Riverview's landscaped buffer on the northern border was omitted entirely. 6 Defined as a "unit of illuminance or light intensity."

5 A-0206-15T1 according to a plan as a single entity containing one or more residential clusters, which may include appropriate commercial or public or quasi-public uses, all primarily for the benefit of the residential development . . . .

Off-street parking was a permitted accessory use in the P-1 zone

if it served residents of the planned development.

In June 2006, the Board held its first hearing. On October

23, 2006, the New Jersey Department of Environmental Protection

(DEP) granted Riverview a permit to engage in waterfront

development but later, apparently, withdrew it. See In Re

Riverview Dev., LLC, Waterfront Dev. Permit No. 0908-05-0004.3 WFD

060001, 411 N.J. Super. 409, 418-23 (App. Div. 2010) (discussing

the DEP permit).

On December 20, 2006, the Township adopted Ordinance 1085-06

(O-1085-06), which provided that an applicant for site plan

approval could request a "special meeting" devoted exclusively to

its application, to be scheduled at the Board's discretion. The

fee for a special meeting was $2000. Riverview requested special

meetings, and the Board agreed because extensive testimony was

required.

On July 9, 2007, plaintiff's counsel discovered the Township

was using Riverview's escrow account to pay Board members for

attending special meetings. On July 17 and 24, 2007, plaintiff's

6 A-0206-15T1 counsel protested the payments, asserting they created a conflict

of interest and an appearance of impropriety.

On September 12, 2007, the Township adopted Ordinance 1106-

07 (O-1106-07), which increased special meeting attendance fees

for Board members from $100 to $150. Payment would be made from

the applicant's escrow fund using the $2000 special meeting fee.

Board members were also entitled to payment if the applicant gave

a less than seventy-two-hours cancellation notice of a special

meeting. As of September 2007, Board members were paid for

attending twelve special meetings in this matter, including three

that were cancelled.

On February 14, 2008, plaintiff's counsel argued the Board

lacked jurisdiction to grant a variance for the parking spaces

designated for the Township because Township residents who did not

reside at Riverview would be charged a fee to use the spaces, but

parking garages were not permitted in the P-1 zone. Plaintiff's

counsel asserted that a use variance was necessary, which could

only be granted by the Zoning Board of Adjustment.

At the hearings on Riverview's application, Adam Remick,

Riverview's engineer, testified the project complied with most

Township requirements, including lot dimensions, impervious area

coverage, side yard setback, density, building height, landscaped

areas, open space and parking, and the project's landscaping and

7 A-0206-15T1 open space exceeded Township requirements. Remick opined the

project only required variances for lighting and building

coverage.

At a special meeting, Remick testified that while the lighting

would generally comply with the .1-foot-candle requirement at the

property line, for safety reasons lighting would be increased to

2.2 foot-candles at three driveway locations, and cutoff shields

would be provided to limit light spillage onto adjacent property.

The Board's engineer, Derek McGrath, agreed with Remick that

light spillage at those locations would be de minimis. However,

he opined that Riverview should rectify future lighting problems

that might arise when the neighboring property in Edgewater was

developed.

Riverview's professional planner, Daniel McSweeney, testified

that each tower would have its widest portion oriented east-west

in compliance with the Township ordinance, but the parking garage

would not be oriented east-west. However, he did not believe a

building orientation variance (BOV) was necessary because within

the view corridor area, Riverview was meeting the intent and spirit

of the ordinance. He opined that a hardship variance was

appropriate because of the irregularly shaped property and the

fact that nineteen acres were underwater. He also opined the

project met the negative criteria and all Township requirements

8 A-0206-15T1 for impervious coverage and open space, and only a variance for

building coverage was necessary.

McSweeney also discussed the landscaped buffer on the

northern edge of the property, which was three-feet wide instead

of the ten-feet required by Table 3.10.a. The full buffer was not

possible because space was needed for daily garbage removal in

that area. Also, the landscaped buffer was not crucial because

the project exceeded the Township's open air requirements.

A professional engineer, Robert Foley, agreed with McSweeney

that there was no room for the ten-foot landscaped buffer on the

northern border of the property; however, in that location, the

project would instead include an eight-foot wide sidewalk leading

to the river walkway. The landscaped buffer at the northern border

was ultimately eliminated completely from the project and replaced

with a wide sidewalk leading to the river.

A real estate appraiser, Donald Helmstter, prepared a report

that calculated the value of plaintiff's townhouses before and

after the development. Helmstetter testified that before the

development, plaintiff's townhouses, with unobstructed views, were

valued at approximately $825,000 for a two-family unit and $1

million for a three-family unit. After the development, with

obstructed views, he calculated the price of a two-family unit at

only $625,000 and a three-family unit at $725,000, an average loss

9 A-0206-15T1 of $200,000 per unit.

Plaintiff's planner, Peter Steck, clarified that preserving

views of the Hudson River and the New York skyline was a goal of

the Township's master plan, the 2003 master plan reexamination

report, and Township zoning ordinances. Steck cited the master

plan's statement that the waterfront is a "significant and unique

resource" which should be developed in a manner which "benefits

the entire community" and efforts should be made "to ensure visual

and physical access" to it.

An architect, Robert Siegel, testified that the project was

designed with any eye toward protecting views of the river. In

addition, cars and garbage removal would not be visible because

of where the parking garage was located.

Traffic and parking experts included: Michael Maris, Nicholas

Verderese, Ronald Reinersten, Brian Collins, and Denis Molner.

Other experts included Adrian Figueroa, an architect, Mike

Cotreau, a view corridor expert, Stephen Borghi, a landscape

architect, John Thonet, a civil engineer, and Gordon Hamm, a valet

parking expert.

In its March 4, 2014 resolution, the Board made the following

findings: the project complied with Township ordinances concerning

the view corridor; the positives outweighed any detriment to the

Township's master plan; the building orientation ordinance was

10 A-0206-15T1 meant to protect the view of the New York skyline; an eye-level

view of the river would be available from the river walkway; a BOV

was not necessary; if a BOV was necessary, it should be granted

pursuant to N.J.S.A. 40:55D-70(c)1 and 2; a lighting variance was

appropriate under N.J.S.A. 40:55D-70(c)2; variances were

appropriate for the number and size of parking spaces; lighting

intensity of 2.2 foot-candles was necessary for security reasons;

Riverview would cooperate with Township's professionals to reduce

light spillover to the neighboring property; the purpose of the

P-1 zone was "to enhance the waterfront of the Township and to

ensure visual and physical access to [it];" the MLUL permits

granting of variances when specific conditions have been met; the

project represented no substantial detriment to the master plan;

the towers would affect the views of the New York skyline even

though they were oriented in the proper direction and in compliance

with Township ordinances; the ten-foot landscaped buffer at the

northern border was not necessary because instead, a better

planning alternative was an eight-foot sidewalk accessing the

riverfront.

In a lengthy document of more than 120 pages, the Board

summarized all the evidence it relied on, including expert

opinions, the examination and cross-examination of witnesses, and

the documents presented.

11 A-0206-15T1 II.

By 2014, Riverview paid a total of $35,750 for Board members'

attendance at thirty-nine special meetings. In count fourteen of

its amended complaint, plaintiff alleged that payment of special

meeting fees constituted a conflict of interest and/or appearance

of impropriety and a violation of the MLUL. In count fifteen,

plaintiff alleged, in part, that O-1106-07 is unconstitutional as

applied based on the required payment for attendance at special

meetings.

The trial judge granted summary judgment to defendants and

dismissed counts fourteen and fifteen. On appeal, plaintiff

contends the judge erred in granting summary judgment because the

special meeting payments tainted the proceedings with the

appearance of impropriety and a conflict of interest, and O-1106-

07 was ultra vires and illegal.

Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court. Conley v.

Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the

trial judge did, "'whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.'"

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436,

445-46 (2007) (quoting Brill v. Guardian Life Ins. Co., 142 N.J.

12 A-0206-15T1 520, 536 (1995)). Summary judgment must be granted "'if the

pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law.'" Templo Fuente De Vida Corp. v. National Union Fire Ins.

Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).

"To defeat a motion for summary judgment, the opponent must

'come forward with evidence that creates a genuine issue of

material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605

(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.

v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory

and self-serving assertions by one of the parties are insufficient

to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41

(2005) (citations omitted).

If there is no genuine issue of material fact, we must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We

review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013). "[F]or mixed questions of law and fact, [an appellate

court] give[s] deference . . . to the supported factual findings

13 A-0206-15T1 of the trial court, but review[s] de novo the lower court's

application of any legal rules to such factual findings." State

v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).

Applying the above standards, we discern no reason to reverse the

grant of summary judgment.

The judge found that the payment of special meeting fees did

not create a conflict of interest or an appearance of impropriety,

and O-1106-07 was consistent with N.J.S.A. 40:55D-8, which

provides, in pertinent part:

a. Every municipal agency shall adopt and may amend reasonable rules and regulations, . . . for the administration of its functions, powers and duties . . . .

b. Fees to be charged (1) an applicant for review of an application for development by a municipal agency, and (2) an applicant pursuant to section 8 of this act shall be reasonable and shall be established by ordinance.

The judge found no nexus between paying of special meeting fees

and the Board's grant of the application.

The judge cited to Galaxy Towers Condominium Ass'n v. Township

of North Bergen Planning Board, No. L-2952-13, where he addressed

the identical issue. The judge found the payment of special

meeting fees to Board members was acceptable according to N.J.S.A.

40:55D-8(b) and necessary to address the backlog of applications,

given that the Board only met once per month. We affirmed, quoting

14 A-0206-15T1 the judge as follows:

The special meetings in this case were necessary to elicit additional testimony from witnesses following remand . . . . Indeed, the complexity of the instant application should not be overlooked. The stipend is necessary to encourage attendance and to hear applications that may otherwise be impracticable to consider with the regularly scheduled Board meetings alone.

[Galaxy Towers Condo. Ass'n v. Twp. of N. Bergen Planning Bd., Nos. A-3583-13, A-0184- 14, A-0519-14 (App. Div. Aug. 8, 2016) (slip op. at 27).]

Accordingly, the payment of special meeting fees was proper in

this case and did not create a conflict of interest or appearance

of impropriety.

Nevertheless, plaintiff contends that O-1106-07, which

authorized the payment, was ultra vires and illegal because the

MLUL does not authorize payments to Board members for attending

special meetings. Plaintiff argues that N.J.S.A. 40:55D-53.2

specifically prohibits payments to Board members because the

statute provides that no municipal expense may be charged to a

developer's escrow account except what is paid to professionals.

Plaintiff relies on Cerebral Palsy Center, Bergen County, Inc. v.

Mayor & Counsel, 374 N.J. Super. 437 (App. Div. 2005) to argue

that N.J.S.A. 40:55D-53.2 only permitted payment of fees to the

Board's professional consultants, not to the Board members for

15 A-0206-15T1 attendance at special meetings.

N.J.S.A. 40:55D-53.2 provides in pertinent part:

a. The chief financial officer of a municipality shall make all of the payments to professionals for services rendered to the municipality or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes . . . . Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. . . . The municipality or approving authority shall not bill the applicant, or charge any escrow account or deposit authorized under subsection b. of this section, for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for in this section, nor shall a municipal professional add any such charges to his bill.

[(Emphasis added).]

The purpose of N.J.S.A. 40:55D-53.2 is to limit and control the

costs of applying for land-use approvals. Cerebral Palsy Ctr.,

374 N.J. Super. at 447.

Plaintiff's argument is partially correct because N.J.S.A.

40:55D-53.2 addresses fees for the Board's professional

consultants. However, plaintiff is incorrect inasmuch as the

16 A-0206-15T1 statute does not address whether Board members may be paid for

attendance at special meetings. In fact, here, the judge correctly

stated that a fair reading of the language of N.J.S.A. 40:55D-53.2

is that its purpose is to control professional fees, rather than

define the entire universe of charges imposed on an applicant for

special meetings.

However, because N.J.S.A. 40:55D-53.2 only addresses

professional fees and does not address payments to Board members

for attending special meetings, it does not govern whether the

special meeting fees were permissible in this case. In addition,

Cerebral Palsy Center is easily distinguished because there, the

municipality required applicants for site plan approval to pay for

the services of a public advocate who would "review and comment

upon" the application. 374 N.J. Super. at 446. Here, applicants

could voluntarily undertake the expense of special meetings but

were not required to do so. Further, the payment in Cerebral

Palsy Center was for the "professional" services of a public

advocate pursuant to N.J.S.A. 40:55D-53.2. There is no

professional service here, but rather payments to Board members

for attending special meetings.

Plaintiff argues that N.J.S.A. 40:55D-8(b) permits filing

fees to be used only for administrative costs and not for

compensation of Board members. However, N.J.S.A. 40:55D-8(b)

17 A-0206-15T1 provides that fees charged to an applicant must be reasonable and

established by ordinance. The statute does not limit how a

municipality may use the fees, or exclude payments to Board members

for attending special meetings. In fact, given that the Board

meets only once per month, if Board members were unwilling to

attend special meetings, it would be impossible to timely decide

complex applications that require extensive testimony.

Encouraging Board members to attend special meetings to ensure

timely decisions is in accord with the municipality's

responsibility under the MLUL and NBZO 10.4(a), which requires

timely decisions on applications. Notably, even with the payment

of attendance fees, it still took nearly seven years to resolve

Riverview's application.

Citing Nunziato v. Planning Board of Edgewater, 225 N.J.

Super. 124, 132-34 (App. Div. 1988), plaintiff argues that the

payments tainted the proceedings. There, the planning board

approved a site plan in exchange for the developer's promise to

contribute $203,000 to affordable housing in the municipality.

Id. at 132-34. We held the proceedings were irremediably tainted

because the developer and board bargained for the $203,000, a

material factor in granting site plan approval. Id. at 133. We

determined that such bargaining, was "inimical" to the goals of

land use regulation. Id. at 134.

18 A-0206-15T1 Here, unlike in Nunziato, there was no bargaining, and Board

members were not paid to grant the approval. To the contrary, the

payments were solely made to encourage their attendance at special

meetings, with no requirement that the Board members who received

payments should vote a particular way.

Plaintiff argues the fees were improper because N.J.S.A.

40A:9-22.5 prohibits officials from acting in a matter in which

they have financial involvement that might impair their

objectivity. N.J.S.A. 40A:9-22.5(d) provides:

No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment[.]

We disagree with plaintiff that payment of a $150 fee for

attending a special meeting should be considered direct or indirect

financial or personal involvement that might reasonably be

expected to impair a Board member's objectivity or independence

of judgment. Riverview paid $35,750 for Board members' attendance

at special meetings over the course of seven years. This amounts

to less than $5000 per year divided among several Board members.

These relatively minor payments were not sufficient to impair

their judgment.

19 A-0206-15T1 Citing Aldom v. Roseland, 42 N.J. Super. 495, 502 (App. Div.

1956), plaintiff argues that special meetings were not necessary

and created an appearance of impropriety. There, a zoning

ordinance was invalidated because a board member voted on matters

that impacted his employer who owned significant land in the

community. Id. at 502. We stated that even when the financial

interest of a board member is small or "indirect" the board must

avoid the appearance of impropriety. Ibid. Here, no Board member,

employer or family member of a Board member had a financial stake

in Riverview's application.

Citing Shapiro v. Mertz, 368 N.J. Super. 46 (App. Div. 2004),

plaintiff argues the payments created a conflict of interest.

There, a town council member voted to appoint her spouse to the

planning board. Id. at 51-53. We held there was a clear conflict

of interest when a person votes to appoint a family member to a

position in a government agency. Id. at 51-54. Here, no board

member's family member received any significant benefit because

of the payment of special meeting fees.

Plaintiff also cites to Randolph v. City of Brigantine

Planning Board, 405 N.J. Super. 215, 220 (App. Div. 2009), where

a planning board chairperson who resided with her boyfriend voted

to hire her boyfriend's employee. The chairwoman stood to gain

financially from the hiring of her boyfriend's employee. Id. at

20 A-0206-15T1 231-32. Here, any financial gain to Board members was minimal and

they did not have to vote a particular way to receive payments.

Plaintiff argues the special meeting fees were invalid

because they were paid prior to the adoption of O-1106-07. The

trial judge determined the payments made prior to adoption of the

ordinance were technical errors subject to ratification pursuant

to Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19

N.J. 493, 504-05 (1955) (holding that where an act is "irregular

exercise of a basic power under the legislative grant,"

ratification is permissible, so long as "relaxation of the

conditions laid down in the grant of the power" does not "defeat

the public policy intended to be served").

The Township passed O-1106-07 shortly after it began paying

special meeting fees to Board members. The relaxation of MLUL

conditions, i.e., that the payments should be made pursuant to an

ordinance, did not defeat any public policy intended to be served.

We agree with the judge that the payments prior to adoption of O-

1106-07 were technical errors that could be ratified. For all of

these reasons, we affirm the grant of summary judgment to

defendants.

III.

Plaintiff contends the judge erred by affirming the Board's

grant of the BOV. We disagree.

21 A-0206-15T1 Riverview maintained it did not need a BOV because the towers

were oriented correctly although the parking garage was not. The

Board agreed a BOV was not required because the dominant portion

of the project was the residential towers, which were oriented

correctly in an east-west direction. The Board determined the

ordinance only required residential buildings to be oriented in

the correct direction, but not the parking garage.

In addition, the Board found the building orientation and

view corridor ordinances should be read in conjunction and the

improper orientation of the parking garage did not affect the view

and was acceptable because it was less than fifty-feet high. The

Board noted the zoning ordinances provide that structures under

five stories or fifty-feet high do not interfere with the view.

The Board also found, however, that if a BOV were necessary

it should be granted under N.J.S.A. 40:55D-70(c)(1) because of the

property's unique shape and topography, and under N.J.S.A. 40:55D-

70(c)(2) because the parking garage was more visually appealing

than surface blacktop.

The judge determined the Board erred in interpreting the

ordinance because the orientation requirement applied to the whole

building and not a portion of it; thus, because the parking garage

was oriented in the wrong direction, Riverview required a BOV.

Nevertheless, the judge affirmed the Board's determination that

22 A-0206-15T1 if a BOV was necessary, it should be granted pursuant to N.J.S.A.

40:55D-70(c)(1) and (c)(2) because the evidence supported this

conclusion.

The decision of a municipal board is entitled to substantial

deference. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing

Kramer v. Bd. of Adustment, 45 N.J. 268, 296 (1965)). The court

may not substitute its judgment for that of the board. Burbridge

v. Mine Hill Twp., 117 N.J. 376, 385 (1990). Courts reviewing a

municipal board action on zoning applications are limited to

determining whether the board's decision was arbitrary,

unreasonable, or capricious. Med. Ctr. at Princeton v. Twp. of

Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App.

Div. 2001). Review of decisions of local land use agencies begins

with the recognition that the board's decision is presumptively

valid. Sica v. Bd. of Adjustment, 127 N.J. 152, 166-167 (1992).

"[B]oards possess special knowledge of local conditions and must

be accorded wide latitude in the exercise of their discretion."

Ibid. (citing Kramer, 45 N.J. at 296-97).

The burden is on a challenger to show that the board's

decision was incorrect. S & S Auto Sales, Inc. v. Zoning Bd. of

Adjustment, 373 N.J. Super. 603, 615-616 (App. Div. 2004) (citing

N.Y. SMSA Ltd. P'ship v. Bd. of Adustment, 324 N.J. Super. 149,

163 (App. Div. 1999)). A determination predicated on unsupported

23 A-0206-15T1 findings is the essence of arbitrariness and caprice. Witt v.

Borough of Maywood, 328 N.J. Super. 432, 442 (Law Div. 1998),

aff'd, 328 N.J. Super. 343 (App. Div. 2000). The same standard

of review that governs the trial court applies to an appellate

court. Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, 202

N.J. Super. 312, 321 (App. Div. 1985).

The MLUL requires municipalities to develop lands in a manner

which promotes the general welfare. 388 Route 22 Readington Realty

Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 346 (2015). An

application for a bulk variance often implicates several purposes

of the MLUL, including: to encourage municipalities to develop

land in a manner that promotes health, safety and welfare, to

minimize threats to public safety, to provide adequate light, air

and open space, to promote a desirable visual environment, and to

establish appropriate population densities. Ten Stary Dom P'ship

v. Mauro, 216 N.J. 16, 30-31 (2013).

A variance may be granted for "special reasons" so long as

it will not cause "substantial detriment" to the public good and

it will not "substantially impair the intent and the purpose of

the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). The

statute requires proof of both positive and negative criteria.

Sica, 127 N.J. at 156. "Under the positive criteria, the applicant

must establish 'special reasons' for the grant of the variance."

24 A-0206-15T1 Ibid. To satisfy the negative criteria, the applicant must

establish that the variance "can be granted without substantial

detriment to the public good" and that it will not "substantially

impair the intent and the purpose of the zone plan and zoning

ordinance." Ibid.

N.J.S.A. 40:55D-70(c)(1) provides:

Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to . . . this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship[.]

N.J.S.A. 40:55D-70(c)(2) provides:

where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act; . . . .

The board must "take cognizance when bulk variances are

required" especially when evidence has been presented of

25 A-0206-15T1 "potential bulk restriction violations." O'Donnell v. Koch, 197

N.J. Super. 134, 143 (App. Div. 1984). For a N.J.S.A. 40:55D-70

(c)(2) variance, approval should be based on the purposes of the

zoning ordinance and not on the advancement of the goals of the

property owner. Ten Stary Dom P'ship, 216 N.J. at 30.

Plaintiff argues the Board's action was arbitrary and

capricious because it granted the BOV in the absence of any

evidential support. Plaintiff posits the Board should not have

relied on N.J.S.A. 40:55D-70(c)(1) to grant the variance.

N.J.S.A. 40:55D-70(c)(1) permits granting a variance if there

is a hardship caused by the property's exceptional narrowness,

shallowness or shape or for exceptional topographic conditions or

physical features uniquely affecting the property. The record

amply supported the Board's finding that a hardship existed

pursuant to N.J.S.A. 40:55D-70(c)(1) because the property was

long, narrow, and mostly under water. The unusual shape and

topography of the property was emphasized throughout the special

In addition, the Board correctly found that the building

orientation ordinance was intended to protect public views, and

the project complied with the view corridor ordinance and

sufficiently protect public views. In fact, the only aspect of

the building that was not oriented correctly was the parking garage

26 A-0206-15T1 which would not affect public views. It is clear from the language

of the ordinances that a building of less than five stories or

fifty feet in height, such as the building here, was not considered

an impediment to the views. Thus, we agree that the Board's grant

of the BOV for the improperly oriented parking garage did not

unreasonably obstruct the public views.

Plaintiff argues the sole reason for the hardship was because

Riverview designed an oversized building, and Riverview would not

need a variance had it designed a smaller building. However, more

than nineteen of the site's twenty-six acres were under water. In

order to maximize use of the unusually shaped parcel of land and

its relatively small acreage that was above water, Riverview

required a variance for only the parking garage. The towers

complied with Township requirements for orientation, view

corridor, and height, as well as front, side and back yard setback.

Further, as the Board noted, if the BOV was not granted, the

parking garage would be moved to the exterior surface, which would

be visually unappealing. Given the constraints of the oddly shaped

and mostly submerged property, we are satisfied the evidence

supported granting the BOV pursuant to N.J.S.A. 40:55D-70(c)(1).

Plaintiff also argues the court erred by permitting the Board

to grant a BOV pursuant to N.J.S.A. 40:55D-70(c)(2) because the

benefits of the project did not substantially outweigh the

27 A-0206-15T1 detriments. Plaintiff posits the site plan does not benefit the

community, and N.J.S.A. 40:55D-70(c)(2) is only meant to be invoked

when the granting of a variance would improve upon zoning rules,

but here, the zoning ordinances were intended to preserve the view

and the Riverview project destroyed it.

We disagree with plaintiff. Riverview complied with Township

ordinances that protected the view, and the record does not support

plaintiff's assertion that granting the BOV destroyed the view.

As previously noted, the three-story structure that included the

parking garage was less than fifty feet high and not tall enough

to obstruct the view. The only part of the project that was

oriented in the wrong direction was the parking garage, which did

not affect exterior views.

In addition, Riverview's view corridor was 250-feet wide,

exceeding what the ordinance required. Moreover, the evidence

supported the Board's finding that above-ground parking would be

less beneficial to the community because it would require visually

unappealing black-top. Accordingly, granting the BOV pursuant to

N.J.S.A. 40:55D-70(c)(2) was appropriate.

Plaintiff argues that Riverview did not present an

alternative plan, so it is impossible to weigh the positive and

negative impacts. However, the record supports the Board's finding

that an alternative to the parking garage was surface parking,

28 A-0206-15T1 which was less desirable because it entailed more blacktop and

less landscaping. Thus, the Board correctly determined that

outdoor parking would create a negative impact and the BOV should

be granted pursuant to N.J.S.A. 40:55D-70(c)(2). Accordingly, the

judge was correct to uphold the Board's determination that if a

BOV was necessary, it should be granted pursuant to N.J.S.A.

40:55D-70(c)(1) and (c)(2).

IV.

Plaintiff argues the Board lacked jurisdiction to approve the

fifty parking spaces for use by nearby residents. The fifty

parking spaces, known as "contract" spaces, were separately

designated on the architectural plans and located inside the

parking garage. The judge determined a use variance was not ripe

for adjudication given that until the parking lot was constructed

it was unclear how the Township intended to use the spaces.

We have held that:

An incidental use is one that relates to a business, trade, profession or occupation in general and not specifically to the use which is peculiar to the applicant. . . .

The use must be . . . commonly, habitually and by long practice . . . established as reasonably associated with the primary use.

[Charlie Brown, 202 N.J. Super. at 324.]

Plaintiff first argues Riverview planned to use the fifty

29 A-0206-15T1 spaces as a paid parking garage, which is not permitted in the P-

1 zone, and thus, required a use variance pursuant to N.J.S.A.

40:55-70(d)(1), which may only be granted by the Zoning Board of

Adjustment. In support, plaintiff cites Najduch v. Township of

Independence Planning Board, 411 N.J. Super. 268, 279 (App. Div.

2009) (holding that planning board may only consider applications

for permitted use).

Plaintiff also argues there was no evidence supporting the

judge's conclusion that the Township, and not Riverview, had

discretion to determine how to use the spaces. Plaintiff's sole

evidence that Riverview intended to construct a paid parking garage

is the 2005 contract of sale, which required Riverview to provide

spaces for nearby residents at a monthly fee.

Riverview counters that despite the language in the 2005

contract, it does not intend to charge a fee for parking and the

Township will have discretion as to how to use the spaces. In

support, Riverview points to a statement by the Board's attorney,

John Dineen, made at a special meeting:

The parking spaces that are at issue here are [fifty] parking spaces proposed in fact by the municipality of North Bergen. North Bergen is going to be responsible as to how it permits or uses it or however [it] charges for it but it has nothing to do with the development.

30 A-0206-15T1 At another point, Dineen stated "[a]s a condition of the purchase

[in 2005] . . . there was a requirement that [Riverview] give or

transfer to the borough [fifty] parking spaces." Dineen's

statements are evidence the Township had discretion as to how to

use the spaces.

Moreover, according to Riverview, the fifty spaces are a

"quasi-public" use permitted by the Township's master plan as part

of a PURD, which "may include appropriate commercial or public or

quasi-public uses, all primarily for the benefit of the residential

development." Thus, presumably, public parking, if used to benefit

the residential development, would be permitted as part of a PURD.

Plaintiff also argues that a parking garage was not an

accessory use permitted in the P-1 zone because it was not

subordinate to the principal use of the building. Plaintiff posits

that parking for residents would be an accessory use, but paid

parking for non-residents would not. Plaintiff emphasizes that a

parking garage is not accessory to the primary use of Riverview's

project because it had no real relationship to or interdependence

with the project.

In support, plaintiff cites Nuckel v. Borough of Little Ferry

Planning Board, 208 N.J. 95, 104 (2011) (finding that constructing

a driveway on neighboring lot was not an accessory use); Wyzykowski

v. Rizas, 132 N.J. 509, 518-21 (1993) (holding that apartments

31 A-0206-15T1 were not an accessory use in a commercial zone because they bore

no relationship to principal commercial use and were not permitted

by ordinance); Charlie Brown, 202 N.J. Super. at 325 (providing

that employees' sleeping quarters on the premises of a restaurant

is not reasonably related or incidental to operation of restaurant

under present day standards); and Zahn v. Board of Adjustment of

Newark, 45 N.J. Super. 516, 520-22 (App. Div. 1957) (finding that

designating room in multi-family residence as garment-cleaning

depot was business not incidental to operation of apartment

building).

However, those cases all involved accessory uses that the

courts determined were not subordinate to the principal uses.

Here, the judge determined the issue was not ripe for adjudication

because it was unclear how the Township intended to use the spaces.

In addition, public parking is an accessory use to a high-rise

residential building regardless of who owns the spaces.

We agree that parking would be an accessory use in the P-1

zone because a PURD "may include appropriate commercial or public

or quasi-public uses." Parking would certainly be an accessory

use to a commercial, public or quasi-public use. Further, paid

parking for guests of residents would benefit residents of the

building. Nevertheless, as the judge correctly determined, until

the parking spaces are constructed, it is impossible to know how

32 A-0206-15T1 the Township intends to use them. This issue clearly was not ripe

for adjudication.

Plaintiff contends the Board's grant of a building coverage

variance was not supported by the record and is arbitrary,

capricious, and unreasonable. The record shows otherwise.

Personal hardship is irrelevant to whether to grant a variance

under N.J.S.A. 40:55D-70(c)(1). Lang v. Zoning Bd. of Adjustment,

160 N.J. 41, 53 (1999). The correct focus is whether "strict

enforcement of the ordinance would cause undue hardship because

of the unique or exceptional conditions" of the property. Ibid.

As noted, Table 3.10.a, supplementing NBZO 3.10(a) and NBZO

11.3(a)(3), permitted building coverage of no more than 35%, not

including lands under water. Riverview requested a variance for

building coverage of 46.6%. The Board granted the variance because

of the unusual shape of the property and the fact that significant

acreage was underwater. The judge affirmed because the Board's

determination was supported by credible evidence.

Plaintiff argues that all property in the P-1 zone included

lands under water and, therefore, the judge should not have made

an exception for Riverview. Plaintiff asserts that NBZO 11.3(a)(3)

expressly excluded lands under water for purposes of calculating

building coverage. Plaintiff cites Isko v. Planning Board of

33 A-0206-15T1 Township of Livingston, 51 N.J. 162, 174 (1968), overruled in part

by Lang, 160 N.J. 41, for the proposition that when a property is

similar to other properties in the zone, it should not be given a

hardship exception pursuant to N.J.S.A. 40:55D-70(c)(1).

Plaintiff argues the property is similar to others in the P-

1 zone. However, the record is devoid of evidence of the shape

or percentage of underwater acreage for other parcels of land in

the P-1 zone, making it impossible to determine similarity. Even

if there was evidence of other parcels in the P-1 zone that

contained underwater acreage, here, approximately nineteen of the

twenty-six acres were under water, leaving only about six acres

available for construction. There is no evidence of a similar

property in the record.

In addition, the property was shaped unusually with its width

ranging from ninety to 420 feet with a midpoint depth of 260 feet.

Because the majority of the property was submerged, and because

the property was long and narrow with widely varying depths, it

is impossible to ascertain to what extent it was similar or

dissimilar to other P-1 zone properties.

Moreover, the project complied with most Township bulk

requirements. For example, it met the requirements for front

setback; side and rear yards; maximum impervious lot coverage;

height; landscaping; open air and space; and the number of parking

34 A-0206-15T1 spaces. Further, Table 3.10.a permitted up to seventy-five

dwelling units per acre but Riverview's proposal was significantly

lower.

Moreover, the building coverage variance became necessary,

in part, because of the parking garage. If parking was located

on the surface, less of the lot would have been covered by a

building. However, as Riverview noted, the parking garage was

beneficial to the community because it hid cars and garbage pickup

from view. Lastly, the variance required a relatively small

adjustment given that NBZO 3.10 permitted building coverage of 35%

and Riverview's application proposed building coverage of 46%.

For these reasons, it was not arbitrary, capricious, or

unreasonable for the Board to grant the building coverage variance.

Plaintiff argues that Riverview never demonstrated it could

not design a building that complied with the requirements for

building coverage. However, despite the property's odd shape, the

project met most Township requirements. It was only because of

the unusual topography that the variance was necessary. Further,

Riverview satisfied the positive and negative criteria.

Given the evidence of the unusual shape and topography of the

site, we conclude the Board's grant of the building coverage

variance was not arbitrary, capricious, or unreasonable and was

supported by the record. The project largely met Township

35 A-0206-15T1 requirements, and building coverage limitations were challenging

because of the unusual shape of the property. Accordingly, the

judge correctly affirmed the Board's grant of the building coverage

variance.

VI.

Plaintiff contends the Board's grant of the lighting variance

and omission of the ten-foot landscaped buffer was erroneous

because these deviations demonstrated the property was being

overdeveloped. This contention lacks merit.

The Board granted the lighting variance because it was

necessary for security reasons. It also permitted Riverview to

omit the ten-foot landscaped buffer on the northern property border

because, instead, the project would provide an eight-foot wide

sidewalk leading to the river walkway. The judge correctly found

the Board's decisions on lighting and the landscaped buffer were

supported by credible evidence.

Plaintiff argues the lighting variance and the absence of the

landscaped buffer only became necessary because Riverview designed

an oversized building. However, the landscaped buffer was omitted

not because of the building, but because the project provided a

wide sidewalk leading to the river. The extra lighting was

necessary for safety reasons. These accommodations were not

because the building was oversized, but because of logistical and

36 A-0206-15T1 security concerns.

Plaintiff argues that the testimony about the need for more

intense lighting was a net opinion not substantiated with evidence.

Plaintiff asserts that nothing in the record supports the need for

more intense lighting and therefore, the grant of the lighting

variance was arbitrary and capricious. Plaintiff is wrong.

Experts must base their opinions on facts, but bare

conclusions unsupported by factual evidence are inadmissible "net

opinions." State v. Townsend, 186 N.J. 473, 494 (2006). Remick,

a licensed engineer, opined that more intense lighting was

necessary to promote vehicular safety at driveway intersections

and in parking areas. McGrath, the board's engineer, agreed,

stating his only concern was the possibility of too much light

spillage onto the neighboring property. Remick's opinion,

therefore, was not a net opinion. Remick was a licensed

professional engineer and his opinion was based on the fact that

the driveway areas would not have sufficient lighting.

Plaintiff argues the Board attempted to rezone the area by

granting variances. In support, plaintiff cites Ten Stary Dom

Partnership, 216 N.J. at 20-26, which involved a variance to build

a single-family home on a lot zoned for residential use which had

insufficient frontage. The Court explained that different

variances implicate different aspects of a zoning plan. Id. at

37 A-0206-15T1 32. For example, a variance for setback requirements might trigger

a concern with light, air and open space, while a variance for

building coverage would trigger a concern for drainage. Ibid.

Here, the Board considered the effect of each variance on the

zoning plan and found they would not negatively impact the plan.

Moreover, the project largely complied with bulk requirements and

variances were needed for only minor issues that promoted safety

and were aimed at satisfying the positive and negative criteria,

given the odd shape of the property. Further, other than the

absence of the ten-foot landscaped buffer, the requirements for

landscaping, open air and population density were amply satisfied.

Accordingly, the judge did not err in affirming the Board's grant

of the lighting variance and the omission of the ten-foot

landscaped buffer.

VII.

The judge found the evidence supported the Board's finding

that Riverview satisfied the negative criteria. The judge

determined the Board correctly relied on McSweeney's expert

opinion that the project did not violate the master plan or

undermine the zoning intent.

Plaintiff contends that Riverview did not satisfy the

negative criteria. Citing Medici v. BPR Co., 107 N.J. 1, 21-22

(1987) (requiring enhanced proofs that negative criteria were met

38 A-0206-15T1 when granting use variance), plaintiff argues the Board merely

recited language about satisfying the negative criteria, but did

not actually insure that the negative criteria were met. Medici

involved the grant of a use variance and not a bulk variance.

Ibid. In any event, plaintiff posits the Board did not actually

analyze the facts in the record, mentioned the master plan but did

not discuss what it actually required, and did not address the

substantial negative impact on the intent and purpose of the zone

plan. Also, plaintiff argues that Riverview experts gave net

opinions because they did not provide the "whys and wherefores"

to support their views.

To satisfy the negative criteria, the applicant must

establish that the variance "can be granted without substantial

detriment to the public good" and that it will not "substantially

impair the intent and the purpose of the zone plan and zoning

ordinance." Sica, 127 N.J. at 156. Here, the Board carefully

considered the evidence presented over the course of seven years,

including extensive testimony regarding the public good, the

intent and purpose of the zone plan and zoning ordinances, views,

landscaping, traffic, parking, the river walkway, and preservation

of open space, air, and light. The resolution discussed the

positive and negative criteria. We disagree that the Board merely

recited language. Rather, the Board analyzed, discussed, and

39 A-0206-15T1 considered the positive and negative criteria.

Plaintiff argues the Board ignored the policy behind the

building orientation requirement that the longest dimension of the

building should be oriented east-west to preserve the views of the

river and the New York skyline. Plaintiff posits the improperly

oriented building does not protect visual access to the area,

which the master plan and the zoning ordinances sought to protect.

Plaintiff's argument is without merit, as the building

towers, which affected the views, were oriented correctly in

accordance with Township ordinances. Moreover, as the Board

stated, the building orientation and view corridor requirements

should be read in conjunction, and here, the view corridor provided

by Riverview was significantly wider than what was required. Any

type of development of the property would have affected the river

views and some level of obstruction was permissible so long as

Township ordinances were respected. The project complied with

Township ordinances aimed at protecting the view and did not

negatively affect the view.

We reject plaintiff's argument that the Board ignored

evidence from Steck that view of the river was a significant part

of the Township's zoning ordinances and master plan. The Board's

summary of evidence included Steck's statement and discussion of

the master plan. In addition, in its resolution, the Board

40 A-0206-15T1 specifically found the master plan and Township ordinances were

aimed at preserving the view, and quoted the same section of the

master plan that Steck cited.

Plaintiff also argues the Board ignored evidence presented

by Helmstetter that the value of plaintiff's townhouses would

diminish by $5 million (collectively) or $200,000 per townhouse.

However, the Board included Helmstetter's findings in its summary

of the evidence considered and was not required to rely on

Helmstetter.

Moreover, even though plaintiff's properties would decline

in value, the bulk requirements were largely met by the project.

Further, as the judge correctly noted, In Re Riverview Development,

411 N.J. Super. at 434-35, holds that a plaintiff may not prevent

a zoning-compliant structure just because it would block the

plaintiff's view. In addition, "collateral economic impacts [on]

surrounding properties" because of "an otherwise-lawful building

are part and parcel of the social compact." Id. at 435.

Plaintiff complains about McSweeney's statement that the

project satisfied the negative criteria because it was a permitted

use in the P-1 zone. Plaintiff argues this statement incorrectly

implies that any permitted use satisfies the negative criteria.

However, notwithstanding McSweeney's statement, the record

confirms that Riverview satisfied the negative criteria.

41 A-0206-15T1 Plaintiff also complains about McSweeney's concession that

he had not read the master plan. However, McSweeney stated that

he looked at the master plan and the master plan 2003 reexamination

report. He was also well-versed in Township ordinances and

understood the Township's priority of preserving the view. Thus,

he was familiar with the master plan and Township ordinances. His

statement was correct that the project complied with the goal of

the Township ordinances and master plan that views of and access

to the river should be protected.

Plaintiff also complains about the judge's reliance on

Chirichello v. Zoning Board of Adjustment, 78 N.J. 544, 557 (1979).

The judge cited Chirichello for the proposition that "the

compliance with the permitted use and other bulk requirements of

the ordinance requires 'some indicia that the zone plan and zoning

ordinance may not have been substantially impaired by granting the

variance.'" We agree with the judge that general compliance with

the zone plan indicates the ordinance and master plan were not

substantially impaired by the granting of the variance.

Plaintiff believes the Township ordinance contemplates a

smaller building oriented in the correct direction. However, as

noted, the project complied with side and rear yard setback and

height requirements. The only area where the project exceeded the

size requirement was building coverage, and even this aspect was

42 A-0206-15T1 relatively minor and a result of the parking garage. Given the

topography and unusual dimensions of the lot, we do not agree with

plaintiff's contention that the building was oversized or the

Township ordinances envisioned a smaller building. The project

largely complies with Township requirements.

VIII.

Lastly, plaintiff contends the Board's resolution failed to

include statutorily required findings for a planned development.

We disagree.

NBZO 10.8 required the Board to make findings about compliance

with Township ordinances and the MLUL, the adequacy of open space,

provisions for public services, vehicular and pedestrian traffic,

light and air, recreation and physical enjoyment, and the

development's impact on the area. In addition, N.J.S.A. 40:55D-

45 required the board to make the following findings:

a. That departures by the proposed development from zoning regulations otherwise applicable to the subject property conform to the zoning ordinance standards . . . of this act;

b. That the proposals for maintenance and conservation of the common open space are reliable, and the amount, location and purpose of the common open space are adequate;

c. That provision through the physical design of the proposed development for public services, control over vehicular and pedestrian traffic, and the amenities of light

43 A-0206-15T1 and air, recreation and visual enjoyment are adequate;

d. That the proposed planned development will not have an unreasonably adverse impact upon the area in which it is proposed to be established;

e. In the case of a proposed development which contemplates construction over a period of years, that the terms and conditions intended to protect the interests of the public and of the residents, occupants and owners of the proposed development in the total completion of the development are adequate.

The Board's resolution included findings on the following

matters: preserving the view pursuant to Township ordinances and

the master plan; the positives outweighed the negatives; the odd

shape of the parcel; the lighting; the number and size of parking

spaces; security; the MLUL; the ten-foot landscaped buffer was not

necessary because of the eight-foot sidewalk accessing the

riverfront; public access to the river and open space; rear and

side setback; density; landscaping; vehicular security, deliveries

and visitors; and a safe traffic plan.

Plaintiff argues the resolution did not use terms such as

"adverse impact," "conservation" and "maintenance," and those

terms were used in N.J.S.A. 40:55D-45 to refer to the protection

of open space, light and air. Even though the resolution did not

include those exact terms, it repeatedly emphasized the

44 A-0206-15T1 preservation of space, light, and air. It was not necessary to

utilize that exact language. The contents of the resolution

satisfied the statute and ordinance.

Plaintiff argues that the Board's resolution did not make

specialized findings that the general welfare would be protected

by the high density residential development. It is true the

resolution did not make specialized findings about the protection

of the general welfare. Nevertheless, the resolution extensively

addressed views and public access to the river, which were

significant aspects of protecting the public welfare.

Plaintiff again argues the Board did not evaluate the

unrebutted testimony from Helmstetter and Steck that the variances

would adversely affect neighboring property values. As noted, the

Board mentioned this evidence but did not rely upon it. Also, the

project complied with most Township requirements notwithstanding

the adverse impact to plaintiff's property values.

Plaintiff takes issue with the court's reliance on In re

Riverview Development, 411 N.J. Super. at 435, because according

to plaintiff, the project is not zoning-compliant. However, the

project generally complies with bulk requirements, and only

required a relatively small number of variances for relatively

insignificant deviations from the ordinances.

45 A-0206-15T1 Plaintiff also argues that In re Riverview Development

addressed issues pertaining to the DEP's approval for waterfront

development and not whether the board should consider plaintiff's

losses of view and property value. Ibid. However, that case did

not address the merits of site plans or variance applications.

Ibid. Nevertheless, it stands for the proposition that "[a]bsent

an enforceable deed restriction or easement, [a plaintiff may not]

. . . prevent any party--whether it be a private or public

developer--from building a zoning-compliant structure" because it

will block views. Ibid.

Finally, plaintiff argues that construction of the project

will have an adverse impact on the surrounding areas. However,

the Board considered extensive evidence about views, traffic, air

light and landscaping and correctly found the positive criteria

outweighed the negative.

We conclude that the judge correctly affirmed the Board's

decision. The Board's decision was not arbitrary, capricious, or

unreasonable, and was amply supported by the record.

Affirmed.

46 A-0206-15T1