Justino Gonzalez v. Township of West Windsor

• Court: New Jersey Superior Court Appellate Division
• Decided: February 11, 2026
• Docket: A-1539-23
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1539-23

JUSTINO GONZALEZ and STACEY JOY FOX,

Plaintiffs-Appellants,

v. APPROVED FOR PUBLICATION

February 11, 2026 TOWNSHIP OF WEST WINDSOR, APPELLATE DIVISION TOWNSHIP OF WEST WINDSOR PLANNING BOARD, BRIDGE POINT WEST WINDSOR, LLC, and CLARKSVILLE CENTER LLC,

Defendants-Respondents. ______________________________

Argued April 8, 2025 – Decided September 25, 2025

Before Judges Smith, Chase, and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2205-22.

Robert F. Simon argued the cause for appellants (Herold Law, PA, attorneys; Robert F. Simon, of counsel and on the briefs; John P. Kaplan and Amanda M. Kronemeyer, on the briefs).

Gerald J. Muller argued the cause for respondents Township of West Windsor and Township of West Windsor Planning Board (Muller & Baillie, PC, attorneys; Gerald J. Muller and Martina Baillie, of counsel and on the brief). Thomas J. Trautner Jr., argued the cause for respondent Bridge Point West Windsor, LLC, (Chiesa Shahinian & Giantomasi PC, attorneys; Thomas J. Trautner Jr., Marc E. Leibman, and Alyssa E. Spector, on the brief).

C. John DeSimone, III, argued the cause for respondent Clarksville Center, LLC (Day Pitney LLP, attorneys; C. John DeSimone, III, of counsel and on the brief; Stephen R. Catanzaro, on the brief).

The opinion of the court was delivered by

SMITH, J.A.D.

Plaintiffs Justino Gonzalez and Stacey Fox appeal two trial court orders

dismissing their complaint. The complaint challenged defendant, West

Windsor Township's (Township) adoption of a new zoning ordinance which

facilitated a 5,000,000-square-foot commercial/industrial project. The project

was developed by co-defendant Bridge Point West Windsor, LLC (Bridge

Point) and owned by co-defendant Clarksville Center, LLC (Clarksville). The

trial court granted co-defendants' Rule 4:6-2(e) motion to dismiss the first five

counts of the complaint with prejudice as time-barred. Next, after a bench

trial, the court dismissed remaining counts six through eight.

Plaintiffs appeal, contending, among other things, that the trial court

erred by finding the first five counts were time-barred and by finding that the

2 A-1539-23 West Windsor Planning Board's (Board) approval of Bridge Point's application

for site plan and subdivision approval was not arbitrary and capricious.

We affirm for the reasons which follow.

I.

Plaintiffs are owners of two residential properties located on Clarksville

Road in West Windsor. Their properties are adjacent to the disputed tract. 1

Defendant Clarksville is the owner of a 539-acre property known as the

Howard Hughes tract, located near the southeasterly corner of the intersection

of Route 1 and Quakerbridge Road in West Windsor (the property or Howard

Hughes tract).2 The property is part of a larger Clarksville-owned tract

totaling 645 acres. This larger tract currently constitutes the Township's entire

planned commercial development (PCD) zone. The Howard Hughes tract

property consists of a mix of unimproved property and dilapidated vacant

structures.

The record shows Bridge Point's development plan was to consolidate

various smaller lots into six large lots on the Howard Hughes tract, then

1 The record shows that plaintiffs' properties abut a main access road, Clarksville Rd., which bifurcates the subject property. Their properties sit just outside the rezoned tract. 2 The property is comprised of the following blocks/lots according to the Tax Map of West Windsor: Block 8, Lots 1, 2, 3, 12, 16, 20, 28, 32.01, 39, 40, 41, 45, 46, 47, and 49 and Block 15.14, Lots 18, 19, 20, 22 and 75.

3 A-1539-23 construct seven buildings, representing over 5,000,000 square feet of

warehouse space. Construction is scheduled to take place in two phases: first,

construction of roads and utilities, access roads, three warehouse buildings,

and a storm water management system; and second, construction of four

additional warehouse buildings and corresponding storm water management

systems. The remaining five lots would be later developed for both

commercial and retail use.

The Township's PCD zone emerged from years of affordable housing

litigation. We provide some background, then transition our narrative to the

current litigation.

Prior Litigation

Prior to Bridge Point's application, the Howard Hughes tract had been

the subject of extensive litigation dating back to 2015. In July 2015, the

Township filed an affordable housing declaratory judgment action seeking

confirmation of compliance with its third-round affordable housing obligation

pursuant to the Mount Laurel doctrine3 and the Fair Housing Act of 1985,

N.J.S.A. 52:27D-301 to -329.20 (the DJ action). The Fair Share Housing

Center intervened as a Supreme Court designated interested party, as did

3 NAACP v. Twp. of Mount Laurel (Mount Laurel I), 67 N.J. 151 (1975).

4 A-1539-23 Atlantic Realty Development Corporation (Atlantic/Clarksville). 4 The parties

reached a settlement in 2018, agreeing that the Township had satisfied its

third-round affordable housing obligation to provide low- and moderate-

income housing by facilitating construction of affordable housing in specific

locations. The settlement also included a provision for the Township's

adoption of a housing element and fair share plan. The settlement excluded

the Howard Hughes tract as a site for affordable housing development.

Judge Mary C. Jacobson conducted a fairness hearing in November

2018, then issued an order approving the settlement agreement in January

2019. The judge found the Township had complied with its Mount Laurel

obligations. After a May 2019 compliance hearing, Judge Jacobson entered a

judgment of compliance and repose, protecting the parties from any builder's

remedy lawsuits through June 30, 2025. Three months later,

Atlantic/Clarksville appealed the judge's order. Atlantic/Clarksville

challenged the terms of the settlement, contending that the Howard Hughes

tract was a more suitable site for affordable housing than other sites identified

in the settlement.

4 Atlantic Realty Development Co. is a predecessor to Clarksville, who purchased the property from Princeton Land, LLC (Princeton).

5 A-1539-23 While the appeal was pending, Princeton filed a verified complaint in

lieu of prerogative writs against the Township challenging its failure to

approve a residential development on the Howard Hughes tract. Hoping to

develop the Howard Hughes tract for residential use that included 2,000 units

of inclusionary family housing, Princeton alleged that the current zoning of the

property was "obsolete."

During this interim period, which saw two lawsuits, settlement

negotiations, an actual settlement, and a challenge to that settlement; the Board

began a reexamination of the Township's master plan pursuant to the

Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -171.5 The

reexamination led to creation of a master plan reexamination report (REX

report), which was approved by the Board on May 23, 2018, after several

public meetings. By fall 2018, the Board began to update the Township's

master plan, including the adoption of a land use plan element. On February

12, 2020, the Board adopted the new land use plan element of the master plan

(new MP). Importantly, section 3.3.5 of the plan was entitled "Planned

Commercial District (PCD)." It recommended a new commercial district land

5 The MLUL requires that "[t]he governing body shall, at least every 10 years, provide for a general reexamination of its master plan and development regulations by the planning board, which shall prepare and adopt by resolution a report on the findings of such reexamination." N.J.S.A. 40:55D-89.

6 A-1539-23 use category which rezoned a significant portion of the Howard Hughes tract

to a PCD. According to the new MP, the PCD would support a broad swath of

nonresidential uses, including warehouses.

Global Settlement

Eventually, the Township and various parties, including

Atlantic/Clarksville, entered into a global settlement agreement and consent

order (the "settlement") to resolve the litigation. As part of the settlement,

Atlantic/Clarksville abandoned its efforts to develop the Howard Hughes tract

as a residential site. Significantly, the settlement terms included a

conceptional site plan permitting the construction of the warehouses, with an

additional 150,000 square feet for retail space. The settlement terms also

required the Township to adopt a rezoning ordinance, which it did.

Adoption of Ordinance 2020-25

In accordance with the settlement and its new MP, the Township

introduced Ordinance 2020-25. After publishing the required notice, the

Township adopted Ordinance 2020-25 at its December 14, 2020, regular

meeting. The Township published notice of the ordinance's adoption on

December 18, 2020.

The ordinance's adoption set the stage for Bridge Point's application to

the Board seeking approval of its commercial development plan. In November

7 A-1539-23 2021, Bridge Point applied to the Board for subdivision and site-plan approval

seeking to construct seven warehouse buildings and ancillary improvements.

In its application, Bridge Point sought fourteen design waivers, 6 and an initial

vesting period of ten years for approvals, given the size and complexity of the

proposed construction.

6 Our review of the record reveals information concerning the twelve waivers that were approved. They included: (1) 2,201 parking spaces proposed (including 200 land bank spaces) where 1,754 spaces are permitted; (2) 910 loading bays proposed where 147 loading bays are permitted; (3) 12 square - foot directional signage proposed where 2 square feet is permitted; (4) 24 inch - high street address signage proposed where 8 inches is permitted; (5) monument sign area of 60 square feet proposed where 48 square feet is permitted; (6) monument signage 16 feet high proposed where 4 feet is permitted; (7) the [a]pplicant proposed to approximate the number of trees of 5+-inch caliper based on a sampling approach, whereas all such trees must be identified; (8) the [a]pplicant proposed to plant 4-inch caliper trees within 100 feet of a building, where one 4-inch caliper tree is required for every 40 linear feet of building perimeter within 75 feet of certain building; (9) the [a]pplicant sought a relaxation of the requirement that stormwater detention areas are to be graded "creatively to blend into the surrounding landscape and imitate a natural depression with an irregular edge"; (10) the [a]pplication proposed to locate eight stormwater basins entirely within a buffer area, where a maximum of 50% of the basin may be located within a buffer area; (11) the [a]pplicant proposed 1.7 and 2.0 footcandles in the passenger car parking areas and 2.2 and 2.4 footcandles in the truck parking areas, where the average permitted light intensity is 0.5 footcandles throughout parking areas; (12) the [a]pplicant proposed 3.1 to 4.4 footcandles, where the required light illumination at intersections is 3.0 footcandles; and (13) the [a]pplicant proposed to exceed, at driveway intersections with Clarksville Road, the maximum permitted light intensity of 1.0 footcandles at property lines.

8 A-1539-23 In early 2022, the Board conducted five public hearings beginning on

May 11 and ending on June 29. Bridge Point published notice of these

hearings on April 27 and sent individual notice to property owners within 200

feet of the property by certified mail, in accordance with the requirements of

the MLUL. Bridge Point provided proof of service to the Board, and no one

objected to the notice.

The Board took testimony from several Bridge Point witnesses: John

Porcek, Executive Vice President for Bridge Industrial; Bryan Waisnor, project

engineer; Benjamin Mueller, acoustical expert; Karl Pehnke, traffic engineer;

Michael Baumstark, architect; and John McDonough, project planner. The

Board also took testimony from its professionals: David Novak, township

planner; Dan Dobromilsky, township landscape architect; Jeffrey A.

L'Amoreaux, township traffic-engineering consultant; and Christopher B.

Jepson, township environmental engineer.

Fifty members of the public spoke at the hearing, including plaintiff Fox,

who "expressed concern about the manner of public hearing regarding the

settlement agreement, about the lack of analysis of the impact of gas emissions

on school children, and asked how much Clarksville Road would be widened

to accommodate the project." Nothing in the record shows that Gonzalez made

a statement or was present at these hearings.

9 A-1539-23 The Board approved Bridge Point's application subject to numerous

conditions. Next, it granted twelve of the design waivers Bridge Point sought,

while denying two waivers relating to signage. Bridge Point then published

notice of the Board's action on November 9.

Current Litigation

On December 22, 2022, plaintiffs filed a complaint in lieu of prerogative

writs against defendants. Plaintiffs sought to overturn: the Township's

approval of Ordinance 2020-25 which re-zoned certain property; and the

Board's approval of Bridge Point's phase I preliminary and final major site

plan, phase II preliminary major site plan, and phase I subdivision to construct

a warehouse and distribution center in West Windsor.

Plaintiffs' prerogative writs action contained eight counts. Counts one

through five challenged the notice and adoption of the ordinance. Specifically,

count one alleged that the Township violated N.J.S.A. 40:55D-62.1 by failing

to provide proper notice of hearings. Count two alleged that the new

ordinance was inconsistent with the terms of the settlement consent order.

Count three alleged that the new ordinance was invalid because its adoption

was the result of a quid pro quo. Count four alleged illegal spot zoning.

Count five alleged that "[t]he decision of the Board not to permit remote public

participation at its December 9, 2020 consistency review of Ordinance 2020-

10 A-1539-23 25 . . . violated the public’s constitutional rights to procedural due process,

substantive due process, and equal protection."

Counts six through eight attacked the Board's approval of Bridge Point's

application. In sum, count six asserted that the Board's approval of the

application was arbitrary, capricious, and unreasonable. Count seven alleged

that the Board lacked jurisdiction to hold the public hearings because it failed

to provide proper notice of the application. Count eight alleged that Bridge

Point failed to seek all the required relief necessary to obtain approval,

including an environmental impact statement.

Bridge Point and Clarksville each moved to dismiss, alleging, among

other things, that plaintiffs' objections were filed outside of the forty -five-day

limitation period proscribed by Rule 4:69-6 regarding counts one through five.

The Township did not participate in these motions. After argument on April

25, 2023, the court granted both motions. It issued a corresponding order and

supporting statement of reasons dated May 26, dismissing counts one through

five with prejudice.

The trial court made a series of findings in support of its dismissal. It

found that "there is no public interest here. Plaintiffs are private individuals."

Likewise, the court also rejected plaintiffs' spot zoning and affordable housing

allegations, noting that "[p]laintiffs fail to explain how the [o]rdinance

11 A-1539-23 concerns affordable housing" and confirmed that the ordinance was the

product of a comprehensive reexamination process, not spot zoning. The court

also dismissed the quid pro quo allegations, stating that the ordinance was the

result of settlement efforts ultimately approved by Judge Jacobson.

The court summarized its findings and decision:

It is undisputed here that [p]laintiffs brought this action about two years after the Settlement Order and Ordinance 2020-25. Their claims do not support, in the interests of justice, extending the 45-day [] filing deadline.

The constitutional . . . exception to the 45-day limitation is not an avenue for plaintiffs to sleep on their rights for years[,] . . . then [allege a] constitutional [deprivation]. Rather, the purpose of the 45-day limitation is to encourage the opposite—to not wait. Plaintiffs waited years to bring this present action. In addition, both the municipal and private [d]efendants—as well as other unknown residents, landowners, and developers in the Township—relied on the validity of Ordinance 2020-25.

To address counts six through eight, the court conducted a bench trial on

November 28, 2023. The Township participated as a party in this trial. After

trial, the court issued a December 11 order and corresponding statement of

reasons dismissing the remaining counts in plaintiffs' complaint against all

parties with prejudice.

Plaintiffs appealed both the dismissal order and the order entering

judgment after trial. On appeal, plaintiffs advance two lines of argument.

12 A-1539-23 Concerning the order dismissing counts one through five as time-barred

pursuant to Rule 4:69-6(a), plaintiffs claim the court committed reversible

error by: rejecting their public interest and constitutional claims argument;

declining to enlarge the filing deadline; and by declining to consider plaintiff's

complaint as a declaratory judgment action. As to the trial court's order

dismissing counts six through eight after trial, plaintiffs contend the court

erred when it concluded that the Board's resolution approving the site plan

application was not arbitrary, capricious, and unreasonable.

II.

We first consider plaintiffs' challenge to the trial court's dismissal of

counts one through five under Rule 4:69-6.

Without citation to any supporting order, plaintiffs first argue that the

court erred in finding that their challenge of the adoption of West Windsor's

Ordinance 2020-25 was time-barred by Rule 4:69-6(a).7 Plaintiffs posit three

7 Plaintiffs did not include copies of the orders appealed in their appendix, however defendants did. We also note that plaintiffs, except for their declaratory judgment action, did not tie their arguments to a specific allegation of error in the trial court's decisions. The Township argues that this omission "render[s] the appeal a nullity," violates Rule 2:6-1(a)(1)(C), and, therefore, allows this court to "summarily dismiss the appeal given [p]laintiffs' fundamental breach of required practice." In this instance, we exercise our discretion to decline to dismiss this appeal, as we are "loathe to dismiss an appeal on procedural-deficiency grounds" where we can properly review the

13 A-1539-23 core arguments: (a) their claims involve important matters of public interest

and constitutional importance, citing the Township's fair housing obligations

and its alleged spot zoning; (b) defendants failed to provide personal notice of

the hearings as required by N.J.S.A. 40:55D-62.1; and (c) the trial court failed

to consider the matter as a declaratory judgment action. Plaintiffs seek

reversal of the trial court's order dismissing counts one through five of the

complaint and a remand for more complete discovery and a hearing on the

merits.

We consider the relevant standard of review. "An appellate court

reviews de novo the trial court's determination of the motion to dismiss under

Rule 4:6-2(e)." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman

and Stahl, P.C., 237 N.J. 91, 108 (2019).

In reviewing a complaint dismissed under Rule 4:6- 2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). However, a reviewing court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957). At this preliminary stage of the litigation the Court is not

matter on the merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000).

14 A-1539-23 concerned with the ability of plaintiffs to prove the allegation contained in the complaint. Somers Constr. Co. v. Bd. of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961). For purposes of analysis plaintiffs are entitled to every reasonable inference of fact. Indep. Dairy Workers Union v. Milk Drivers Loc. 680, 23 N.J. 85, 89 (1956). The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.

[Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citations reformatted).] 8

Next, to challenge a municipality's adoption of an ordinance, a complaint

in lieu of prerogative writs must be filed on time. Rule 4:69-6(a) requires that

"[n]o action in lieu of prerogative writs shall be commenced later than 45 days

after the accrual of the right to the review, hearing or relief claimed, except as

provided by paragraph (b) of this rule." 9 The "accrual period" under Rule

4:69-6 runs from the date of final publication of the ordinance. In re 8 We note that plaintiffs argue in a single paragraph (point I(e) of their merits brief) that dismissal under Rule 4:6-2(e) was improper because resolution of defendants' motions pursuant to Rule 4:69-6 required the trial court to resolve issues of fact. However, our Supreme Court has considered enlargement under Rule 4:69-6 pursuant to a motion to dismiss, finding no procedural obstacle. See Hopewell Valley Citizens' Grp. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 583-84 (2011); In re Ordinance 2354-12 of W. Orange v. Twp. of W. Orange, 223 N.J. 589, 594-95 (2015); Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 275 (App. Div. 1997) (citing Brunetti v. Borough of New Milford, 68 N.J. 576, 584-85 (1975)). 9 Rule 4:69-6(b) provides different limitation periods for enumerated types of actions in lieu of prerogative writs, none of which apply here.

15 A-1539-23 Ordinance 2354-12, 223 N.J. at 592. "The right to review a zoning ordinance .

. . begins upon publication of a notice after its adoption on second reading."

Faulhaber v. Twp. Comm. of Howell, 274 N.J. Super. 83, 90 (Law Div. 1994).

Rule 4:69-6(c) permits enlargement of that limitation under certain

conditions: "[t]he court may enlarge the period of time provided in paragraph

(a) or (b) of this rule where it is manifest that the interest of justice so

requires." The use of the words "may enlarge" indicates a discretionary

decision, reviewable by this court for abuse of discretion. Reilly v. Brice, 109

N.J. 555, 560 (1988). "Because of the importance of stability and finality to

public actions, courts do not routinely grant an enlargement of time to file an

action in lieu of prerogative writs." Tri-State Ship Repair & Dry Dock Co. v.

City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div. 2002). "Whether to

grant or deny an enlargement involves a sound exercise of judicial discretion,

with consideration given both to the potential impact upon the public body and

upon the plaintiff." Id. at 423-24. "The longer a party waits to mount its

challenge, the less it may be entitled to an enlargement." Id. at 424. The court

"should also consider the length of the delay and the reason proffered for that

delay." Ibid. "In general, ignorance of the existence of a cause of action will

not prevent the running of a period of limitations except when there has been

16 A-1539-23 concealment." Reilly, 109 N.J. at 559. The record in this matter shows no

evidence of concealment. 10

It is undisputed that the forty-five-day period for commencing an action

began when the Township adopted the ordinance on December 14, 2020.

Here, plaintiffs filed their action in lieu of prerogative writs over two years

after the ordinance was adopted, on December 22, 2022. Our review of the

record shows plaintiffs had ample opportunity to challenge the ordinance

before December 2022 but have offered no reasonable justification for their

delay in filing the complaint. Given the record, a plain reading of Rule 4:69-

6(a) reveals that plaintiffs' challenge to the ordinance adoption is time -barred.

The sole question is whether there is a proper basis to enlarge the time for

filing under subsection (c).

A.

Looking to Rule 4:69-6(c), plaintiffs argue that public interest warrants

relaxation of the forty-five-day rule, contending that "the re-zoning of a

property into numerous large warehouses and distribution centers . . . will have

a palpable impact on the local community." Plaintiffs also make two

10 Plaintiffs suggest, but do not explicitly state, that the Township's failure to provide personal notice of the public hearing for the ordinance could be considered negligent concealment, however, they offer no facts in the record to support this position. We conclude that this implied argument has no merit.

17 A-1539-23 constitutional arguments. First, asserting that the Township failed in meeting

its affordable housing obligations by adopting the rezoning ordinance to permit

the Howard Hughes tract warehouse development. They also allege that the

ordinance itself amounts to unlawful spot zoning. We are not persuaded.

Our courts have enlarged the forty-five-day time frame, in the interests

of justice, in matters involving: (1) important and novel constitutional

questions; (2) informal or ex parte legal determinations by administrative

officials; and (3) important public interests requiring adjudication. In re

Ordinance 2354-12, 223 N.J. at 601. The Supreme Court has identified

circumstances which qualify as a public interest, including:

whether there will be a continuing violation of public rights, Jones v. MacDonald, 33 N.J. 132, 138 (1960) (holding that "each purported exercise of the right of office by one without title to it constitutes a fresh wrong"); whether individual installments or payments are to be made under the challenged contract, Meyers v. Mayor and Council of E. Paterson, 37 N.J. Super. 122, 128 (App. Div. 1955), aff'd, 21 N.J. 357 (1956) (successive payments of salary under illegally created position constitute separate remediable acts); whether the question will have a continuing impact on the parties, Reahl v. Randolph Twp. Mun. Utils. Auth., 163 N.J. Super. 501, 510 (App. Div. 1978), certif. denied, 81 N.J. 45 (1979) (holding power of municipal authority to charge standard annual rate for sewer service was a question of public importance); whether the plaintiffs seek injunctive or other equitable relief in addition to the review of governmental action, Thornton v. Vill. of Ridgewood, 17 N.J. 499, 510

18 A-1539-23 (1955) (holding equitable relief not barred by statute of limitations).

[Reilly, 109 N.J. at 559 (citations reformatted).]

In deciding whether to enlarge the forty-five-day time frame, courts must

balance the public interests at stake against the "important policy of repose"

inherent in Rule 4:69-6. In re Ordinance 2354-12, 223 N.J. at 601 (citing

Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135,

152-53 (2001)).

Plaintiffs, non-parties in the Township's declaratory judgment action or

the zoning action, failed to intervene while those actions were pending. We

note that the experienced affordable housing judge endorsed the global

settlement which approved location of affordable housing at other sites, and

approved development of commercial warehouses at the Howard Hughes tract.

It follows that plaintiffs lack standing to collaterally attack the outcome of this

now settled litigation with an out-of-time challenge to Ordinance 2020-25. We

agree with the trial court, which rejected plaintiffs' spot zoning and affordable

housing allegations, noting that "[p]laintiffs fail to explain how [the

challenged] [o]rdinance concerns affordable housing."

We are also unpersuaded by plaintiffs' allegations of a quid pro quo. A

"quid pro quo" is "an action or thing that is exchanged for another action or

thing of more or less equal value." Black's Law Dictionary 1506 (12th ed.

19 A-1539-23 2024). We have considered how the concept of quid pro quo works in the

municipal land use context:

[W]e view the critical issue as whether the illegal exaction constitutes a blatant quid pro quo for the approval, either demanded by the municipality and acceded to by the developer or offered by the developer and accepted by the municipality in circumstances in which the exaction is unrelated to any legitimate land use concerns generated by the development application itself and the amount thereof is entirely arbitrary. If that is so, then the transaction may be fairly regarded as an interdicted sale of a municipal approval, subversive of law, anathematic to public policy, and remedial only by vitiation of the approval.

[Twp. of Marlboro v. Plan. Bd. of Holmdel, 279 N.J. Super. 638, 643 (App. Div. 1995).]

On this record, plaintiffs do not clearly identify an unlawful exchange or

favor. Rather, they broadly assert that defendants made an agreement to "not

provid[e] affordable housing." Plaintiffs do not explain how its complaint to

overturn the ordinance is related to the Township's alleged failure to meet its

affordable housing obligation. Indeed, the rezoning took place after

significant and extended public review and consideration. Based on this

record, we discern plaintiffs' accusations to be without evidentiary support.

The record clearly shows that Ordinance 2020-25 was the product of a

comprehensive reexamination process and settlement efforts ultimately

approved by the experienced affordable housing judge.

20 A-1539-23 Plaintiffs argue that this record is like the one in Damurjian v. Bd. of

Adj. of Colts Neck, 299 N.J. Super. 84 (App. Div. 1997). After Damurjian's

variance application was denied, he filed a complaint in lieu of prerogative

writs seeking to declare an enhanced setback provision null and void for

failing to advance the stated goals of the MLUL. Id. at 87-88. The Township

of Colts Neck (Colts Neck) sought dismissal based on Rule 4:69-6, arguing

that the challenge was time-barred since the provision was adopted more than

three years prior to the action. Id. at 97. The Damurjian court found that the

challenge was timely, "filed within 45 days of the date the Board's ruling under

[the ordinance] affecting plaintiff's property," ibid., and further noting that

constitutional challenges can never be time-barred. Id. at 98. The court

concluded that the zoning provision was "impermissibly vague and

ambiguous," id. at 95, and therefore, "defendant's untimeliness contention

[was] clearly without merit." Id. at 99.

To the extent plaintiffs use the delay period in Damurjian to justify an

enlargement of time under Rule 4:69-6 on this record, we are unconvinced.

This comparison ignores our conclusion that Damurjian timely filed his

complaint within forty-five days of the Colt's Neck Board of Adjustment's

denial of his variance application. Id. at 98 (citing Rule 4:69-6(a)).

Consequently, Damurjian's ensuing three-year delay was of no consequence in

21 A-1539-23 the eventual Rule 4:69 enlargement of time analysis. In addition, in Damurjian

we struck down the offending local ordinance as impermissibly vague, a

conclusion on a constitutional question, which also negated any time bar

argument. Id. at 98-99.

This record is different than the one we considered in Damurjian.

Plaintiffs are not specifically affected applicants. Unlike Damurjian, their

property was not re-zoned. The record shows that their complaint was not

filed within "45 days after the accrual of the right to the review, hearing or

relief claimed." R. 4:69-6(a). Untolled by a variance application, it was filed

700 days late. While Damurjian supports the principle that an unconstitutional

ordinance can be challenged at any time by a supported constitutional

question, as we state below, we discern no such question here.

Plaintiffs, two private property owners, arrive much too late in this

lengthy and transparent public process to overcome the important public policy

of repose inherent in Rule 4:69-6. In re Ordinance 2354-12, 223 N.J. at 601.

We conclude the trial court did not abuse its discretion in declining to enlarge

the filing deadline under the public interest exception pursuant to Rule 4:69-

6(c), since plaintiffs failed to make a sufficient showing.

22 A-1539-23 B.

Plaintiffs next contend that N.J.S.A. 40:55D-62.1 requires the Township

to provide personal notice of the hearing on a proposed amendment to the

zoning ordinance to property owners within 200 feet of the affected property at

least ten days prior to the hearing. We disagree, as these arguments miss the

mark and start with the presumption that personal notice was required. It was

not.

The MLUL requires publication of a notice of adoption of any

ordinance. Specifically, N.J.S.A. 40:55D-62.1 provides:

Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to N.J.S.A. 40:55D-89, shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.

[(Emphasis added).]

23 A-1539-23 Relying on N.J.S.A. 40:55D-62.1, Gallo v. Mayor of Lawrence Twp.,

328 N.J. Super. 117, 125 (App. Div. 2000), and the language of Ordinance

2020-25, the trial court stated:

Here, the challenged ordinance was part of the Master Plan Reexamination. The ordinance explicitly says so and [p]laintiffs advance no colorable allegation otherwise. Therefore, the MLUL did not require that the Township provide individual notice. Moreover, [p]laintiffs had notice of the [o]rdinance through a newspaper publication as well as the Township's affordable housing plan's status and settlement.

In Gallo, the plaintiff property owner appealed a grant of summary judgment,

arguing that the municipality failed to provide personal notice to landowners

within 200 feet of the proposed zoning amendment that would create a higher

density residential zone adjacent to their property. 328 N.J. Super. at 121 -22.

The plaintiff argued that "because they are entitled to protest a change in

zoning they are entitled to [personal] notice." Id. at 123. The court disagreed,

stating that "[p]laintiffs' interpretation of the statute fails to reflect the

Legislature's distinction between an isolated zoning change and a broad-based

review of a municipality's entire zoning scheme." Id. at 124.

The Gallo court explained that a challenge to an amendment of a zoning

ordinance is "generally . . . time restricted and may well involve public

involvement resulting from the specific notice required by the statutes." Id. at

125. In contrast, review of a municipality's master plan involves "extensive

24 A-1539-23 public review and analysis by consultants and experts, hearings, general public

notice, and in most cases, extensive publicity and notoriety." Ibid.

As demonstrated here, the very nature of periodic review of a master plan precluded it from remaining a secretive process and outside of public oversight and scrutiny. Against this not atypical factual backdrop, the Legislature was keenly aware of the distinction between the two separate processes and did not perceive it necessary to require that each property owner affected by a master plan change and zoning change be notified.

[Id. at 126.]

In addition, the court noted that practical considerations forbid personal notice,

as the review process is "dynamic," involves "tinkering," and often hundreds

of changes. Ibid. And indeed, a challenge to the master plan has significant

and different consequences: "The impact of a notice requirement and the filing

of a protest are significant because once a protest is lodged, the ordinance in

question must be approved by a supermajority—that is, by a vote of four-to-

one rather than by a simple majority." Id. at 123. Gallo is crystal clear in

explaining that individual personal notice is not required when the zoning

changes are part of a reexamination of the master plan.

Cotler v. Township of Pilesgrove, 393 N.J. Super. 377, 385 (App. Div.

2007) is also instructive. Relying on Gallo, the court found:

[T]he rezoning of plaintiffs' properties was the product of an ongoing planning process that started with the

25 A-1539-23 preparation of the periodic reexamination report and concluded with the adoption of the amended zoning ordinance plaintiffs challenge in this litigation. Therefore, this rezoning was not an "isolated zoning change" affecting only a discrete number of properties, but instead the result of "a broad-based review of a municipality's entire zoning scheme," which could be adopted without the personal notice to affected property owners required by N.J.S.A. 40:55D-62.1 and 63.

[Id. at 385.]

Cotler tells us that individual notice is not required even when the

specific zoning amendments were not part of the master plan reexamination

report but instead became a part of the "ongoing planning process that started

with the preparation of the periodic reexamination report and concluded with

the adoption of the amended zoning ordinance." Ibid.

Here, the 2018 REX Report shows that the Howard Hughes tract was

being considered for prospective conforming and nonconforming uses in the

prior zone, ROM-1, and recommends that the Board should evaluate "within

the framework of a master plan land use element to assess its developmental

implication on the rest of the community." After seven planning board

meetings between October 2018 and December 2019, the Board adopted the

new master plan in February 2020. The newly adopted master plan

recommended including the Howard Hughes tract in a new zone designated as

the PCD. In December 2020, Ordinance 2020-25 carried out the

26 A-1539-23 recommendation. Ordinance 2020-25 makes the connection between the 2020

Land Use Plan and the 2018 REX report. It stated:

WHEREAS, the Planning Board of West Windsor adopted a Land Use Element of the Master Plan on February 12, 2020 (2020 Land Use Plan Element); and

WHEREAS, the 2020 Land Use Plan Element recommends a Planned Commercial District encompassing lots commonly referred to as the Howard Hughes Tract . . .

WHEREAS the 2020 Land Use Plan Element recommends a variety of research, industrial and commercial lands uses to be permitted in the PCD; and

WHEREAS, the intent of the PCD is to support a wide variety of nonresidential uses to facilitate the redevelopment of the tract, while also ensuring that any such development will be complementary to the surrounding area, protect existing environmental constraints, minimize undue strain on the Township's existing community facilities, and avoid any substantial adverse impacts to the existing traffic and circulation patters of Clarksville Road, Quakerbridge Road, and the US Route 1 corridor. 11

Considering the detailed record below, the trial court correctly noted:

"Here, the challenged ordinance was part of the Master Plan Reexamination.

The ordinance explicitly says so and [p]laintiffs advance no colorable

11 "Whereas" clauses reflect an expression of intent of the drafter. Highpoint at Lakewood Condo. Ass'n v. Twp. of Lakewood, 442 N.J. Super. 123, 139 (App. Div. 2015); see also Burnett v. Cnty. of Bergen, 198 N.J. 408, 422 (2009).

27 A-1539-23 allegation otherwise." We agree, and we find the master plan reexamination

exception to N.J.S.A. 40:55D-62.1 applies. No personal notice was required,

and we conclude that the trial court committed no error.

C.

Continuing with their objection to the forty-five-day deadline dismissal,

plaintiffs next argue that their claims were cognizable under the Declaratory

Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62, and therefore not subject to

the forty-five-day filing deadline found in Rule 4:69-6. We find this argument

without merit.

The DJA provides, in relevant part, that "[a] person . . . whose rights,

status or other legal relations are affected by a . . . municipal ordinance . . .

may have determined any question of construction or validity arising under the

. . . ordinance . . . and obtain a declaration of rights, status or other legal

relations thereunder." N.J.S.A. 2A:16-53. The purpose of the DJA is to

"provide 'relief from uncertainty and insecurity with respect to rights, status

and other legal relations.'" In re N.J. Firemen's Ass'n Obligation, 230 N.J. 258,

275 (2017) (quoting N.J.S.A. 2A:16-51). "By vesting New Jersey courts with

the 'power to declare rights, status and other legal relations, whether or not

further relief is or could be claimed,' the DJA provides all individuals . . . with

a forum to present bona fide legal issues to the court for resolution." Ibid.

28 A-1539-23 (citation omitted) (quoting N.J.S.A. 2A:16-52). "The primary goal of

affording this equitable relief is to allow interested parties to preserve the

status quo without having to undergo costly and burdensome proceedings."

Ibid. (citing DiFrancisco v. Chubb Ins. Co., 283 N.J. Super. 601, 613 (App.

Div. 1995)).

As a threshold matter, a plaintiff seeking relief under the DJA must

"present[] a justiciable issue and [have] appropriate standing." ML Plainsboro

Ltd. P'ship v. Twp. of Plainsboro, 316 N.J. Super. 200, 204 (App. Div. 1998).

A plaintiff may assert a declaratory judgment action when challenging an

ordinance on constitutional grounds. Bell v. Twp. of Stafford, 110 N.J. 384,

390 (1988). However, we may decline to order declaratory relief if alternative

relief would be more effective or appropriate, a decision that rests within the

court's sound discretion. ML Plainsboro, 316 N.J. Super. at 204-05.

To have standing to challenge a municipal ordinance under the DJA, a

person's "rights, status or other legal relations" must be affected by the

ordinance. N.J.S.A. 2A:16-53. Courts "will render declaratory relief when

there is an actual dispute between parties who have a sufficient stake in the

outcome." N.J. Ass'n for Retarded Citizens v. Dep't of Hum. Servs., 89 N.J.

234, 241 (1982); Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295,

301-03 (App. Div. 2005). Complaints challenging the constitutionality of

29 A-1539-23 municipal ordinances can be maintained as a declaratory judgment action or an

action in lieu of prerogative writs. Ballantyne House Assocs. v. City of

Newark, 269 N.J. Super. 322, 330 (App. Div. 1993).

Here, plaintiffs chose to file an action in lieu of prerogative writs, not a

DJA action. The trial court recognized this, stating, "[p]laintiffs have not

brought a declaratory judgment action here so the concern regarding whether a

declaratory judgment action can circumvent the 45-day limit is of no moment."

We recognize that the DJA does not have a statute of limitations, and the

defense of laches is ordinarily inapplicable. Ibid. Thus, we understand

plaintiffs' reliance on the application of those principles here.

We consider the facts which gave rise to a challenge to the constitutional

rights in Ballantyne. The Ballantyne plaintiffs had standing because their

rights were directly affected by the challenged ordinance. Id. at 330-331.

They challenged a municipal ordinance which authorized termination of

garbage collection at plaintiffs' housing complex. They alleged that the

ordinance breached a pre-existing tax abatement agreement between them and

the City of Newark. Ibid. Because Ballantyne was a contract claim, we

declined to consider plaintiffs' equal protection argument, since declaring the

ordinance unconstitutional "would not entitle plaintiffs to any additional relief

30 A-1539-23 beyond what they are already entitled to receive based on Newark's breach of

the tax abatement agreements." Id. at 337.

Here, plaintiffs' complaint presents no justiciable issue, nor do plaintiffs

establish standing to challenge the ordinance. Plaintiffs have been unable to

demonstrate how their constitutional rights have been impacted or violated.

The record shows plaintiffs' residential properties are located adjacent to the

Howard Hughes tract, outside of the PCD zone created by the ordinance.

Absent a bona fide controversy, plaintiffs are not entitled to declaratory relief.

See Cox et al., New Jersey Zoning & Land Use Administration, § 40-5, at 837

(2024). If plaintiffs' rights are not directly affected by the Township's

adoption of the ordinance, then none of their claims are cognizable under the

DJA and they lack standing.

Having concluded that none of the Rule 4:6-2(c) grounds argued by

plaintiff for the enlargement of time apply, we affirm the court's dismissal with

prejudice of counts one through five.

III.

We next consider plaintiffs' challenge to the trial court's dismissal of

counts six through eight after trial. Inexplicably, plaintiffs appeal the Board's

31 A-1539-23 actions only. They omit any reference to the trial court's findings and

conclusions in support of its dismissal order. 12

Plaintiffs first argue that the Board's approval of Bridge Point's

application (including site plan approval, subdivision approval and waivers)

was not supported by the evidence, and thus its decision was arbitrary,

capricious and unreasonable, likening it to a "net opinion." Next, plaintiffs

contend that Bridge Point failed to seek all the required variances necessary to

complete the project as proposed. Finally, plaintiffs argue that the Township

failed to provide adequate public notice in accordance with N.J.S.A. 40:55D -

11 to -15, depriving the Board of proper jurisdiction to hear the application.

We consider the well-settled law concerning challenges to municipal

action.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, [we] are bound by the same standards as was the trial court."

Berardo v. City of Jersey City, 476 N.J. Super. 341, 353 (App. Div. 2023)

12 The Township "urge[s] this court to summarily dismiss the appeal given [p]laintiffs' fundamental breach of required practice," arguing plaintiffs' failure to include the trial court's order and forty-three-page statement of reasons in the appendix violates Rule 2:6-1(a)(1)(C) and is fatal. We may decline to address an issue on appeal where the appellant has failed to include the final order dismissing the claim in their appendix. Cipala v. Lincoln Tech. Inst.,179 N.J. 45, 55 (2004). We choose to address this aspect of the appeal on the merits, as defendants included the operative orders in their appendix, and the record is intact for purposes of review.

32 A-1539-23 (first alteration in original) (quoting Fallone Props., LLC v. Bethlehem Twp.

Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)).

Ordinarily, when a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference. Its factual determinations are presumed to be valid and its decision to grant or deny relief is only overturned if it is arbitrary, capricious or unreasonable.

[Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013) (citing Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990); Kramer v. Bd. of Adj., 45 N.J. 268, 298 (1965)).]

As such, "[t]he challenger of municipal action bears the 'heavy burden' of

overcoming this presumption of validity by showing that it is arbitrary,

capricious or unreasonable." Vineland Constr. Co. v. Twp. of Pennsauken,

395 N.J. Super. 230, 256 (App. Div. 2007) (quoting Bryant v. City of Atlantic

City, 309 N.J. Super. 596, 610 (App. Div. 1998)). "The factual determinations

of the planning board are presumed to be valid and the exercise of its

discretionary authority based on such determinations will not be overturned

unless arbitrary, capricious or unreasonable." Fallone Props., 369 N.J. Super.

at 560.

"[A] court may not substitute its judgment for that of the board unless

there has been a clear abuse of discretion." Price v. Himeji, LLC, 214 N.J.

263, 284 (2013) (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172

33 A-1539-23 N.J. 75, 81 (2002)). Because local officials are presumed to have a clearer

understanding of the "characteristics and interests" of the community, "the 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;

see also Fallone Props., 369 N.J. Super. at 561. "[T]he record made before the

Board is the record upon which the correctness of the Board's action must be

determined . . . ." Kramer, 45 N.J. at 289 (citing Kempner v. Twp. of Edison,

54 N.J. Super. 408, 416 (App. Div. 1959)). Furthermore, "[t]he factual

findings set forth in a resolution cannot consist of a mere recital of testimony

or conclusory statements couched in statutory language." N.Y. SMSA, L.P. v.

Bd. of Adj., 370 N.J. Super. 319, 332-33 (App. Div. 2004).

However, we must overturn board decisions that are "arbitrary,

capricious or unreasonable," Cell S. of N.J., 172 N.J. at 81 (quoting Medici v.

BPR Co., 107 N.J. 1, 15 (1987)), and we note that "'a board's decision

regarding a question of law . . . is subject to a de novo review by the courts,

and is entitled to no deference . . . .'" Berardo, 476 N.J. Super. at 353 (quoting

Dunbar Homes, Inc. v. Zoning Bd. of Adj., 233 N.J. 546, 559 (2018)); Nuckel

v. Borough of Little Ferry Plan. Bd., 208 N.J. 95, 102 (2011).

Plaintiffs have the burden to show that the Board "engaged in 'willful

and unreasoning action, without consideration and in disregard of

34 A-1539-23 circumstances.'" Northgate Condo. Ass'n v. Borough of Hillsdale Plan. Bd.,

214 N.J. 120, 145 (2013) (quoting Worthington v. Fauver, 88 N.J. 183, 204-05

(1982)). They make three main arguments to show the Board's approval of

Bridge Point's application was arbitrary and capricious. First, the Board's

approval was erroneously based upon experts who presented "net opinions."

Second, the Board's approval was improper because it had insufficient

evidence on air quality, traffic, and noise questions, and granted certain

waivers without the requisite hardship showing. Third, plaintiffs submit that

the Board "failed to compare the project's phasing to the requirements of the

Township Code or the MLUL" when granting a ten-year vesting period for

approval of phase I and preliminary approval of phase II. We consider each

claim in turn.

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported

by factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53-54

(2015) (alteration in original) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569,

583 (2008)). An opinion that is "circular," or contains "bare conclusions,

unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87

N.J. 512, 524 (1981). However, our Rules of Evidence do not apply to

35 A-1539-23 planning board hearings. N.J.S.A. 40:55D-10(e) (stating that "[t]echnical rules

of evidence shall not be applicable to the hearing" of a municipal land use

agency). Planning board proceedings are quasi-judicial in function.

Baghdikian v. Bd. of Adj., 247 N.J. Super. 45, 48-49 (App. Div. 1991).

"A board's function is to make factual determinations based on the

record and decide whether the applicant has satisfied the statutory criteria . . .

its power includes the 'judicial' role of deciding questions of credibility and

whether to accept or reject testimony, expert or otherwise." Id. at 49. In New

Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J.

1, 16 (1999), the Court overturned a municipal board decision that relied on an

expert's statements that were "tantamount to a net opinion." The Court held

that a board cannot rely upon unsubstantiated allegations or expert opinions

that are unsupported by studies or data when rendering its decisions. Ibid.; see

Cell S. of N.J., 172 N.J. at 89.

Our review requires us to determine whether the expert testimony was

helpful to the factfinder and sufficiently supported by data. Townsend, 221

N.J. at 55. The record shows that Bridge Point laid the proper foundation at

the planning board hearing, permitting each witness to state their

qualifications. In every case, the Board accepted each witness as an expert

36 A-1539-23 without objection, and without competing proof from anyone, including

plaintiffs.

The trial court noted the Board's eighty-three-page "exhaustive and

comprehensive [r]esolution," finding that "[e]ach of the expert witnesses

offered their opinions concerning their area of expertise and each provided the

facts, measures, and methods underlying their opinion." The Board’s

determinations about the waivers are each explained, with citation to the

appropriate witnesses and portions of the record upon which the Board relied.

No competing experts were offered by plaintiffs or any other member of the

public, and the Board accepted the testimony of each witness presented

without objection.

The record shows that the Board concluded: "For the reasons set forth

below, and on the basis of the testimony and submissions provided by the

[a]pplicant and municipal staff, the Board finds that the merits of this

application justify approval and outweigh the concerns, which are mitigated by

the conditions of this approval."

We conclude that the trial court made sufficient findings, well-

established in the voluminous and detailed record of the Board, to support its

conclusion that the Board was not arbitrary and capricious. On this record, we

discern no error by the trial court when it considered expert testimony and

37 A-1539-23 concluded that it was helpful to the factfinder and sufficiently supported by

data contained in the record.

B.

Next, plaintiffs argue that "the Board failed to properly analyze the

proposed increase in vehicular and tractor trailer traffic and impact of same on

the surrounding neighborhood," rendering its approval of Bridge Point's site

plan and subdivision plan arbitrary and capricious.

The record shows that the Board aptly summarized the expert testimony

from the uncontroverted witnesses, including questions from the Board and the

public, in a comprehensive eighteen paragraph resolution. The detailed record

also reflects the Board's deliberate consideration of vehicular traffic impacts

on the community. It acknowledged in its resolution that "the greatest concern

with this application for the Board and also the public was the projected

increase in truck traffic that will result from the warehouse development." In

response to this concern, the Board stated that it "gave considerable thought to

ways in which the impact of truck traffic generated by the project could be

mitigated" and imposed several conditions in granting the waiver relief.

The trial court found Bridge Point’s traffic consultant, Karl Pehnke

offered uncontroverted testimony which was corroborated by the Board's

38 A-1539-23 traffic expert. The trial court properly deferred to the Board's well-supported

decision, stating:

Ample expert and factual testimony supported the Applicant's requests, and the Board provided detailed reasons for granting the waver [sic] relief. The Board discusses the bases for each waiver as it recites the testimony of the different experts. Bridge provided expert testimony in favor of each design and submission waiver; no member of the public objected to the waivers; and no expert testified against the waivers. The Township's own experts commented on the waivers. Neither the Township planner or [sic] Township engineer objected to the waivers concerning parking spaces, loading spaces, or signage. The Township engineer did not object to the lighting plan and checklist waivers. The Township landscape architect testified that he supported the stormwater basin design waiver and the two landscaping waivers. The Board's resolution detailed all of the testimonies and explained the rationale behind each waiver relief it granted, whether that be, for instance, parking and loading spaces (e.g., parking and loading spaces appropriate for the scale of the project), lighting (e.g., improved site safety), or storm water management (e.g., blending with landscape, respecting natural drainage features of the property). In each instance, the Board's decision was based upon credible, reasoned, factually supported, and largely uncontradicted expert testimony. Based on this evidence, the Court finds that the Board's decisions with respect to the waiver requests were not arbitrary, capricious, unreasonable, or contrary to law.

The trial court correctly determined that the Board's actions were not

arbitrary, capricious, or unreasonable, as it systematically addressed every

requested waiver, supported each decision by expert testimony and other

39 A-1539-23 evidence, and approved the waivers consistent with the broad discretion

granted to it. The record shows the trial court found the Board adequately

stated why each waiver should be granted under the statutory criteria and in

consideration of the goals of the ordinance. The Board found either undue

hardship or impracticability in each instance, and that each waiver request that

was approved was reasonable and within the general intent of the ordinance.

On this record, we discern no error by the trial court when it considered

the impact of vehicular traffic and concluded the Board's waiver approvals

were not arbitrary and capricious.

Plaintiffs next argue that the Board failed to produce any testimony

demonstrating how Bridge Point "met this 'threshold for granting extended

vesting', nor what said threshold is, or where said threshold can be found."

Plaintiffs offer no further explanation for objecting to the extension.

The record shows that when the Board granted the extension, it found

that "[t]he Applicant requested 10-year vesting of the final approval of Phase 1

and preliminary approval of Phase 2, which is reasonable and appropriate

given the size of the project, which will take time to complete." In support of

its finding that the Board acted reasonably, the court noted the Board's

statement emphasizing the size and intensity of the project: "Elsewhere, the

40 A-1539-23 Board had noted that '[i]t is not often that a board considers an application for

land use development of the scale and involving the complexity of issues

presented here,' referencing 'the sheer size of the project' presenting 'profound

local and regional implications that the Board had to consider.'"

N.J.S.A. 40:55D-49 provides that preliminary approval of a major

subdivision or a site plan expires three years "from the date on which the

resolution of preliminary approval is adopted" unless otherwise extended by

the planning board pursuant to N.J.S.A. 40:55D-49(d). The planning board is

permitted to grant an extension upon a finding of reasonableness. Ibid.

Here, the record shows that expert witnesses testified to the need for

New Jersey Department of Transportation approval, which they opined could

take years. The experts also testified to the sheer size and complexity of the

project, which will require numerous additional approvals before completion.

The Board based its decision on the detailed record and the trial court, again,

properly deferred to the Board's findings and decision. We see no reason to

disturb the trial court's order on question of Bridge Point's vested rights.

D.

We briefly consider two other arguments made by plaintiffs, neither of

which are persuasive.

41 A-1539-23 i.

Plaintiffs argue that "[t]he Board's approval of the [a]pplication must be

vacated as [Bridge Point] failed to seek and obtain all variance relief required,"

namely a d(1) use variance "to construct over 5,500,000 square feet of

warehouse space within the PCD Zone, a single use that was presumably not

the intended purpose of Ordinance 2020-25." We are unpersuaded.

The Board unequivocally found that no variance relief was required.

The Board relied on the testimony from a project planner John McDonough,

who identified many "positives" in the application. The Board noted:

Mr. McDonough stated that there are "many positives" of this application: the fact that it is a variance free application and one that conforms to the Planned Commercial District requirements; its full compliance with use and all bulk standards, including lot and yard dimensions, area, frontage, width and depth, coverage and height; its relatively modest impact by comparison to the potential residential development once contemplated for the Site, and the economic value of the proposed use, reflecting New Jersey's "excellent transportation system," access to major metropolitan areas (New York and Philadelphia) and to ports, and the significant increase in container activity, which began pre-COVID and has only increased with the increased ease of online shopping. The application, according to Mr. McDonough, meets the "intent of the zone," and bulk requirements, requiring only "relatively modest" relief from the design standards. The Board Planner generally agreed with Mr. McDonough's testimony.

42 A-1539-23 "The established rules of statutory construction govern the interpretation

of a municipal ordinance." State v. Williams, 467 N.J. Super. 1, 4 (App. Div.

2021) (quoting Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999)). "The

first step of statutory construction requires an examination of the language of

the ordinance. The meaning derived from that language controls if it is clear

and unambiguous." Ibid. "[W]ords and phrases shall be given their generally

accepted meaning, unless that meaning is inconsistent with the clear intent of

the Legislature or unless the statute provides a different meaning. Words in a

statute should not be read in isolation." Keyworth v. CareOne at Madison

Ave., 258 N.J. 359, 379-80 (2024) (quoting Shelton v. Restaurant.com, Inc.,

214 N.J. 419, 440 (2013)).

Here, the subject ordinance provides the following in pertinent part:

"Permitted uses. In the PCD, no building or premises shall be used and no

building shall be erected or altered which is arranged, intended, or designed to

be used except for one or more of the following uses . . . ." There are forty-

two permitted uses, eleven accessory uses, and two conditional uses. Of the

forty-two permitted uses, use number five permits "[w]arehousing and

distribution facilities." Further, the ordinance indicates that the "intent of the

PCD" includes encouraging warehouse and distribution centers.

43 A-1539-23 Plaintiffs do not support their argument that a single use, i.e. a 5,500,000

square-foot warehouse project, in the PCD zone was not an intended purpose

of the ordinance. And as the trial court pointed out, "whether a single use is or

is not permitted is irrelevant in the instant case, as [p]laintiffs acknowledge in

their brief, over 100 plus acres of the PCD are reserved for other uses." We

find plaintiff's argument without merit. The ordinance language is clear on its

face, and we find no error here.

Plaintiffs also argue that Bridge Point's notice of the May 11, 2022

hearing was "materially deficient in many respects and fell far short of

compliance with the MLUL's public notice requirements" by failing to

describe the variance relief requested and by failing to provide information

relating to the availability of documents for inspection. Plaintiffs continue that

this defective notice divests the Board of jurisdiction, and therefore the court

was without jurisdiction to dismiss their complaint. We disagree.

Notice is jurisdictional. Perlmart of Lacey, Inc. v. Lacey Twp. Plan.

Bd., 295 N.J. Super. 234, 237 (App. Div. 1996). Pursuant to N.J.S.A. 40:55D -

12, an applicant is required to give public notice of the hearing on an

application at least ten days prior to the date of the hearing. N.J.S.A. 40:55D -

11 governs the contents of that notice, requiring that it shall state "the date,

44 A-1539-23 time and place of the hearing, the nature of the matters to be considered and, . .

. the location and times at which any maps and documents for which approval

is sought are available." Production of "[a]ny maps and documents for which

approval is sought at a hearing shall be on file and available for public

inspection at least 10 days before the date of the hearing, during normal

business hours in the office of the administrative officer." N.J.S.A. 40:55D -

10(b).

The purpose of the notice requirement is functional, not cemented in

form. As the panel explained in Perlmart:

It is, to us, plain that the purpose for notifying the public of the "nature of the matters to be considered" is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.

[295 N.J. Super. at 237-38 (citations omitted).]

"[S]uch a notice should fairly be given the meaning it would reflect upon the

mind of the ordinary layman, and not as it would be construed by one familiar

with the technicalities solely applicable to the laws and rules of the zoning

commission." Id. at 238 (quoting Holly Dev., Inc. v. Bd. of Cnty. Comm'rs,

342 P.2d 1032, 1036 (Colo. 1959)).

45 A-1539-23 The record shows notice was proper because Bridge Point: did not apply

for variance relief, as none was required; provided two separate methods to

access their application materials; and gave effective notice where the record

shows fifty members of the public attended the meeting, with some of those

(including Fox) sharing public comment.

We conclude without reservation that the trial court's dismissal orders

were proper. To the extent that we have not addressed any other arguments by

plaintiffs, it is because they lack sufficient merit to be discussed in a written

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

Affirmed.

46 A-1539-23