NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0937-23
JD JAMESTOWNE, LLC,
Plaintiff-Appellant,
v.
TOMS RIVER TOWNSHIP ZONING BOARD OF ADJUSTMENT,
Defendant-Respondent. _________________________
Argued November 18, 2024 – Decided May 14, 2025
Before Judges Gummer, Berdote Byrne, and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1309-22.
Ryan M. Amberger argued the cause for appellant (Montenegro, Thompson, Montenegro & Genz, PC, attorneys; Ben A. Montenegro and Ryan M. Amberger, on the briefs).
Robin La Bue argued the cause for respondent (Rothstein, Mandell, Strohm, Halm & Cipriani, attorneys; Robin La Bue, on the brief). PER CURIAM
Plaintiff, JD Jamestowne, LLC ("JD"), appeals from the trial court's order,
dismissing the complaint with prejudice. The court dismissed the complaint
because it found the amended resolution of the Toms River Township Zoning
Board of Adjustment ("Board"), denying plaintiff's development application,
was not arbitrary, capricious, or unreasonable. We agree with the trial court that
the Board's decision was not arbitrary, capricious, or unreasonable because the
denial of plaintiff's application was based on numerous factors supported by
sufficient credible evidence in the record. Accordingly, we affirm.
I.
Plaintiff is the owner of the Jamestowne Village Apartment complex in
Toms River, identified on the tax map as Block 610, Lots 1, 2, 3, 5, 11, 30, 31,
and 33. The property is comprised of 17.9 acres in total and is primarily located
in the Existing Multi Family Zone with some portions located in the Multi
Family Zone, although the existing structures on the property were built prior to
those zoning determinations. The parties on appeal claim1 the property is
currently improved with eighteen apartment buildings containing 266 units. The
1 Although the parties stipulate to a certain number of units, the record reveals significant discrepancies regarding the current number of units on the property, which we discuss later in this opinion. A-0937-23 2 current zoning ordinance allows for eighteen units per acre. The parties stipulate
the property may contain up to 319 total units, entitling plaintiff to build fifty-
three more units without a density variance. However, in its development-
project application, plaintiff sought to build 100 new units, resulting in a total
of 366 units on the property. Thus, with the additional forty-seven units,
plaintiff's application required a density variance.
Plaintiff sought approval of a site plan, lot consolidation, a density
variance pursuant to N.J.S.A. 40:55D-70(d)(5) ("d(5)"), nine bulk variances and
ten design exceptions. The specific relief requested in each variance category
is as follows:
• One d(5) density variance for twenty units per acre (366 units total) whereas
the maximum permitted density was eighteen units per acre (319 units total).
• Nine c(1) or c(2) bulk variances consisting of:
o A bulk variance for a 9.6-foot buffer area width, whereas a minimum
buffer width of 20 feet was permitted;
o A variance for noncompliance with an ordinance prohibiting any
structure, activity, storage of materials, or parking of vehicles within
the buffer area;
o A bulk variance for 26 feet between buildings with windows, whereas
A-0937-23 3 a minimum of 60 feet was required;
o A bulk variance for a principal building length of 256 feet, whereas a
maximum length for a principal building of 175 feet was required;
o A bulk variance for a multifamily dwelling setback from accessory
drive and internal roadways of 25.9 feet, whereas a minimum of 35 feet
was required;
o A bulk variance for a principal building setback from parking area of
10 feet, whereas a minimum of 20 feet was required;
o A bulk variance to the requirement that a "[b]uilding must have no more
than two dwelling units in a line without setbacks and/or breaks in
building elevation of at least [5] feet" whereas none were allowed;
o A bulk variance to the requirement that "[p]arking is not permitted in
front yard setback in residential zones for other than single and two
family uses," whereas on plaintiff's application parking was proposed
in the front yard for multifamily uses; and
o A bulk variance for 573 on-site parking spaces, whereas the minimum
required on-site parking spaces was 671.
In addition, the proposal sought ten design exceptions, summarized as
follows:
A-0937-23 4 • Allowing sidewalks to be constructed on only one side of internal streets,
whereas sidewalks had to be constructed on both sides of all internal streets;
• Permitting four drives on Walnut Street and three drives on James Street,
whereas not more than one two-way access drive were permitted on any street;
• Providing dead-end parking circulation, whereas dead-end parking circulation
aisles was prohibited;
• Permitting no space provided for islands separating parking stalls from
circulation and entrances or exit drives, whereas parking lots having fifty or
less spaces currently required 10-foot-wide islands separating parking stalls
from circulation and entrances or exit drives;
• Permitting four entrances proposed for Walnut Street with 1,191.81 feet of
frontage and three exits proposed for James Street with 567.63 feet of
frontage, whereas parking lots with a capacity of more than fifty vehicles and
a frontage in excess of 500 feet on any one street were permitted two-way and
one-way access drives for not more than two entrance and two exit movements
on the street;
• An exception to the requirement that all entrance drives extend a minimum
distance of 100 feet back from the street curb line or to an access aisle;
• An exception to the requirement that all exit drives extend a minimum
A-0937-23 5 distance of 60 feet back from the street curb or to a major access aisle;
• An exception to the requirement that no parking stalls utilize the required
entrance and exit drives or major circulation drives as access aisles;
• An exception to the requirement that a 5-foot minimum width landscaping
area must be provided along the fence or wall enclosing the refuse storage
area; and
• An exception from the requirement that all areas of the site not occupied by
buildings, pavement, sidewalks, required screening, required parking area
landscaping, required safety islands or other required improvements be
landscaped by the planting of grass or other ground cover, and a minimum of
two shrubs and one tree for each 250 square feet of open space.
These requested bulk and design non-conformities would be added to fourteen
other non-conformities already existing at the site.
The Board held public hearings on the application over the course of four
days, where plaintiff presented expert testimony, lay witness testimony, and
other evidence in support of the application. The Board unanimously denied
plaintiff's application, concluding plaintiff had not demonstrated entitlement to
the requested major site plan approval, the d(5) density variance, or the
associated c(1) or c(2) bulk variances pursuant to N.J.S.A. 40:55D-70.
A-0937-23 6 Plaintiff challenged the denial by filing a complaint in lieu of prerogative
writs, claiming the Board had not analyzed the d(5) density variance by
evaluating positive and negative criteria as required by statute and had instead
furnished a "net opinion" with respect to the requested variances.
At trial, the Board argued the application was not merely for density, bulk,
and design-element variances with respect to an additional forty-seven units, but
also for lot consolidation and major site plan approval of 100 new units. It
argued plaintiff had failed to consider the existing site in its request for major
site plan approval and had focused only on the additional units that would
require a density variance. For example, plaintiff sought to create enough new
parking for 100 new apartment units but did not take into consideration the
existing 266 units, which were not in compliance with respect to parking, to
bring the entire complex into conformity. Likewise, it argued plaintiff was
allocating affordable housing units for the new 100 units but was not considering
the existing 266 units. It asserted if the density of the proposed project could
not comply with the township's master plan and be consistent with the
surrounding neighborhood, then all other variance and design requests were
moot. Plaintiff countered that while its application would not bring the site into
compliance with parking, open-space, affordable housing and other existing
A-0937-23 7 ordinances, those non-conformities would either remain static or become
slightly improved.
The trial court remanded the matter to the Board after determining the
resolution was legally insufficient in failing to specify the Board's reasons for
denying plaintiff's application and because the Board's "net" reasoning denying
the d(5) variance was insufficient. The court retained jurisdiction.
On remand, the Board issued an amended resolution, again denying
plaintiff's major site plan application but with detailed findings and reasoning.
In the amended resolution the Board explained: (1) the site was non-conforming
as the density is already over the permissible density for that zone, and the
intensified proposed nonconformity provided no benefit to the public; (2) the
parking on plaintiff's property was nonconforming, and additional need for
parking resulting from plaintiff's application would aggravate, not ameliorate,
this issue; (3) the parking issue would require utilizing existing recreational
open space and the placement of cars closer to the building, whereas plaintiff's
land was noncompliant with the minimum required area for recreational open
space; (4) the increased density on plaintiff's property would exacerbate an
already-existing traffic issue; and (5) plaintiff's application would exacerbate an
already-existing issue as to solid-waste storage on plaintiff's land. The Board
A-0937-23 8 also found plaintiff's expert was not credible in certain, detailed respects. It
articulated the proposal would impair the overall zoning plan.
The trial court then heard renewed arguments and found the Board in the
amended resolution had properly analyzed the necessary criteria and had given
sufficient reasons for the Board's decision denying the application. It ruled,
"[t]he resolution is no longer based on conclusory findings and, instead,
provides explanations of the standards applied." These standards, the trial court
held, "evidenced [the Board's] denial of the application thoroughly[,] . . .
conclud[ing] that the requested relief only intensified the nonconformity of the
site and with no benefit to the public." The trial court highlighted the Board's
comments as to the application's impact on open space and traffic, and that
plaintiff already was noncompliant as to density. In an October 27, 2023 order,
the court dismissed plaintiff's complaint with prejudice for the reasons set forth
on the record that day. This appeal followed.
II.
Land use decisions made by a zoning board carry a presumption of
validity, and they will not be reversed unless they are proven to be arbitrary,
capricious, or unreasonable, Dunbar Homes, Inc. v. Zoning Bd. of Adj. of Twp.
of Franklin, 233 N.J. 546, 558 (2018), or demonstrate a clear abuse of discretion,
A-0937-23 9 Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). "The role of a court in
reviewing the decision of a local board's land use decision is very narrowly
circumscribed." Scully-Bozarth Post #1817 of the VFW v. Planning Bd. of City
of Burlington, 362 N.J. Super. 296, 314 (App. Div. 2003). "Courts must give
substantial deference to such decisions, recognizing that because of the
knowledge possessed by local board members of local conditions and interests,
they are best equipped to determine the merits of variance applications." Ibid.
"Fundamentally, a reviewing court may not substitute its judgment for that of
local officials," as "[i]t is not the role of a reviewing court to determine whether
the decision of a local board was wise or unwise." Ibid.
In the local land use context, "[a] board acts arbitrarily, capriciously, or
unreasonably if its findings of fact in support of a grant or denial of a variance
are not supported by the record, or if it usurps power reserved to the municipal
governing body or another duly authorized municipal official." Ten Stary Dom
P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citation omitted). And "[b]ecause
variances should be granted sparingly and with great caution," greater deference
is accorded to a variance's denial than to its grant. Kinderkamack Rd. Ass'n,
LLC v. Mayor & Council of Borough of Oradell, 421 N.J. Super. 8, 21 (App.
Div. 2011) (alteration in original) (quoting N.Y. SMSA, L.P. v. Bd. of
A-0937-23 10 Adjustment, 370 N.J. Super. 319, 331 (App. Div. 2004)); see also CBS Outdoor,
Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 578 (App. Div.
2010).
The same deferential standard of review applies when reviewing a trial
court's decision of an appeal from a zoning board resolution. CBS Outdoor, 414
N.J. Super. at 577. However, we review questions of law de novo, Dunbar
Homes, 233 N.J. at 559, and afford no special deference to the trial court's
interpretations of law or legal conclusions stemming from such interpretations,
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The term density is defined as "the permitted number of dwelling units
per gross area of land that is the subject of an application for development . . .
if authorized by municipal ordinance or by a planned development." N.J.S.A.
40:55D-4. When a zoning ordinance limits density for multi-family dwelling
units to a certain number of units per acre and a developer wishes to exceed this
limitation, the developer must apply to the zoning board for a variance. See
Grubbs v. Slothower, 389 N.J. Super. 377, 384 (App. Div. 2007). N.J.S.A.
40:55D-70(d) provides in pertinent part:
The [Board] shall have the power to:
....
A-0937-23 11 In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: . . . (5) an increase in the permitted density as defined in [N.J.S.A. 40:55D-4] A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
[N.J.S.A. 40:55D-70(d) (emphasis added).]
The "special reasons" requirement of the statute is often referred to as
positive criteria for a variance, Grasso v. Borough of Spring Lake Heights, 375
N.J. Super. 41, 48 (App. Div. 2004), and it is the applicant's burden to
demonstrate the existence of that positive criteria. Ten Stary Dom P'ship, 216
N.J. at 30. Generally, sufficient "special reasons" for the grant of a variance
pursuant to N.J.S.A. 40:55D-70(d) exist in two broad circumstances: first, when
the denial of the project application would impose an undue hardship on the
applicant, Loscalzo v. Pini, 228 N.J. Super. 291, 300 (App. Div. 1988); and
A-0937-23 12 second, when a proposed project "promote[s] the purposes of zoning as set forth
in N.J.S.A. 40:55D-2," Grubbs, 389 N.J. Super. at 389.
However, the standard for establishing special reasons differs when
evaluating a density variance sought pursuant to N.J.S.A. 40:55D-70(d)(5) as
opposed to non-density variances. See Grasso, 375 N.J. Super. at 49 (citing Cell
South of N.J., Inc.v. Zoning Bd. of Adjustment, 172 N.J. 75, 83 (2002)). The
requirement for positive criteria promoting the general welfare is generally
satisfied on a finding the proposed site is particularly suitable for the proposed
use, Medici v. BPR Co., 107 N.J. 1, 4 (1987). Positive criteria for density
variances are present if "the applicant's proofs demonstrate 'that the site will
accommodate the problems associated with a proposed use with [a greater
density] than permitted by the ordinance'" and "that despite the proposed
increase in density . . . the project nonetheless serve[s] one or more of the
purposes of zoning and was consistent with the overall goals of the [Municipal
Land Use Law]." Grubbs, 389 N.J. Super. at 389 (quoting Randolph Town Ctr.
Assocs., L.P. v. Township of Randolph, 324 N.J. Super. 412, 417 (App. Div.
1999)).
In addition to the positive criteria, N.J.S.A. 40:55D-70 also requires
certain negative criteria be considered when reviewing a variance application.
A-0937-23 13 Grasso, 375 N.J. Super. at 48. The negative criteria consist of two elements.
No relief may be granted unless it can be done (1) "without substantial detriment
to the public good"; and (2) without "substantially impair[ing] the intent and
purpose of the zone plan and zoning ordinance." Ibid. (quoting N.J.S.A.
40:55D-70(d)).
Regarding the first prong of the negative criteria, the court in Medici
concluded the "statutory focus is on the variance's effect on surrounding
properties. The board of adjustment must evaluate. . . whether or not [the
variance] will cause such damage to the character of the neighborhood as to
constitute 'substantial detriment to the public good.'" Medici, 107 N.J. at 22-23
n.12 (citing Yahnel v. Bd. of Adjustment, 79 N.J. Super. 509, 519 (App. Div.
1963)). The Board must weigh "wherein the zoning benefits from the variance
are balanced against the zoning harms" and will grant the variance only if
"adequate proofs" lead the zoning board to conclude the variance's harms, if any,
are not "substantial." Ibid. (quoting Yahnel, 79 N.J. Super. at 519).
III.
We begin our analysis by noting a discrepancy in the record as to whether
plaintiff's property is currently non-conforming as to density. The record
contains contradictory information as to how many units are currently on
A-0937-23 14 plaintiff's land. When plaintiff first argued its application before the Board, 2 its
expert began by stating:
So, I'll start by briefly describe the existing conditions again. I think our counsel gave a general overview of the site and the site location . . . .
We do have the two lots, 2 and 5, which are the MF-8 Zone properties which will be acquisition. Those are the two single-family style housing on them as opposed to the remaining site. The remainder of the site was constructed, I believe post-World War II, but not soon after that likely again predates the existing zoning that you have which is why it's in the EMF zone the existing multi-family zone.
The vast majority of those units are one-bedroom units, 282 of the existing units are one-bedroom, 56 of them are two-bedrooms…
In addition, the site is I believe broken up between 16 individual buildings. So, you take those 338 units and split them up between 16 buildings.
2 We note that the parties' respective counsel throughout this litigation —from plaintiff's filing of a complaint in lieu of prerogative writs to this appeal —are different than their respective counsel during the application stage, when plaintiff initially presented the application to the Board to prior to the Board's initial denial. A-0937-23 15 This characterization is different than what the parties have stipulated
throughout this litigation, as the parties have agreed plaintiff's land currently has
266 units split between eighteen buildings. At oral argument, counsel was
unable to clarify this discrepancy. The discrepancy is relevant because the
Board and the trial court based their respective decisions, in part, on the
conclusion that plaintiff's land is currently noncompliant as to density, and any
variance would only serve to exacerbate non-compliance, a finding that plaintiff
challenges on appeal. Nevertheless, we conclude the Board's detailed litany of
other reasons to deny plaintiff's application is sufficient and dispels any
argument that the trial court's decision was arbitrary, capricious, or
unreasonable, regardless of whether the site is currently non-compliant as to
density. Moreover, considering either plaintiff's expert witness's number of
existing units or the parties' agreed-on number, plaintiff's proposed development
would still require a significant density variance.
Regarding the positive criteria of plaintiff's density variance application,
the Board found plaintiff's proposed site plan would exacerbate current
noncompliance as to parking and recreational open space, as well as aggravate
already-existing traffic and solid-waste storage issues.
The Board cited similar reasons in its analysis of the first prong of
A-0937-23 16 negative criteria, finding plaintiff had not shown the variance could be granted
without substantial detriment to the public good. Additionally, the Board
declined to accept plaintiff's expert's testimony as to the application's effect on
traffic and communicated concerns regarding the parking being closer to the
buildings than allowed by ordinance, finding it not credible.
Regarding the second prong of negative criteria, the Board found plaintiff
had failed to establish the increase in density would not have a more detrimental
effect on the neighborhood than if the project was constructed in a manner
consistent with the zone's restrictions due to the detrimental effects on already
non-compliant parking and recreational open space, as well as the already-
existing traffic and solid waste storage issues. The Board also diligently
concluded the increase in density could not be approved without also approving
substantial numerous bulk variances. To this point, we emphasize plaintiff's
density application is not merely seeking to build forty-seven additional units
but would require several other substantial bulk variances applied to its property,
which is already noncompliance in fourteen separate ways.
We disagree with plaintiff's contention the Board and trial court erred in
rejecting its expert's testimony because it was not rebutted. A Board has the
choice of accepting or rejecting the testimony of witnesses. Reinauer Realty
A-0937-23 17 Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div. 1960). Here, the Board
found plaintiff's expert not credible. Specifically, it found: (1) the expert failed
to establish the site would accommodate the problems associated with increased
density by adding 100 units; (2) his explanation as to the availability of other
suitable sites where apartments could be constructed in conformity with the
zoning ordinances was insufficient and unsatisfactory; (3) his testimony
regarding public transportation was unpersuasive; and (4) he could not provide
any testimony to support his position as to appropriate population densities and
concentrations that would contribute to the well-being of persons,
neighborhoods, communities and regions or preservation of the environment.
Nor did the expert show the proposal "encourage the location and design of
transportation routes which would promote the free flow of traffic while
discouraging location of such facilities and routes which result in congestion or
blight."
Despite the uncertainty as to whether plaintiff's land was already
noncompliant with respect to density, we conclude the trial court correctly found
the Board's decision to deny plaintiff's application was otherwise supported by
sufficient evidence in the record and was not arbitrary, capricious, or
unreasonable.
A-0937-23 18 Affirmed.
A-0937-23 19