NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1492-24
UNITED HEARTS ISLAMIC ACADEMY,
Plaintiff-Respondent,
v.
ZONING BOARD OF THE TOWNSHIP OF WILLINGBORO,
Defendant-Appellant. ____________________________
Argued on December 1, 2025 – Decided May 19, 2026
Before Judges Sabatino, Natali and Walcott- Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0074-24.
Eric J. Riso argued the cause for appellant (Zeller & Wieliczko, LLP, attorneys; Eric J. Riso, on the briefs).
Robert S. Baranowski, Jr. argued the cause for respondent (Hyland Levin Shapiro LLP, attorneys; Robert S. Baranowski, Jr. and Peter A. Chacanias, on the brief). PER CURIAM
Defendant Zoning Board of the Township of Willingboro (the Board)
appeals from a December 19, 2024 order that vacated its denial of plaintiff
United Hearts Islamic Academy LLC's (United Hearts), application for a use
variance under N.J.S.A 40:55D-70(d)(1), and for additional bulk variances. The
variance relief related to an undisputed beneficial use – the construction of a
two-story school building and an additional one-story multipurpose building. In
addition to vacating the Board's resolution denying United Hearts' use variance,
Judge Jeanne T. Covert's December 19th order also remanded the matter for a
rehearing and redetermination consistent with its written opinion issued on
November 12th. We affirm for the reasons expressed in Judge Covert's well-
reasoned written decision, and accordingly remand for the Board to undertake
additional fact finding and further analysis of the pertinent factors.
I.
United Hearts currently operates a 4,700 square foot one-story childcare
center at 248 Pennypacker Drive, Block 5.02, Lot 24 in Willingboro Township
(the site). In its application, United Hearts proposed to build a 9,520 square foot
two-story school building adjacent to the existing childcare center. They also
sought to construct an additional 2,000 square foot one-story, multipurpose
A-1492-24 2 building, the extension of a wraparound parking lot, and a 1,750 square foot
playground between the proposed school and the existing childcare facility.
United Hearts' application required a use variance because the proposed facility
is located in the township's B-1 District in which educational facilities are not a
permitted use.
United Hearts has maintained through its mission statement that it
operates the childcare center to create a healthy Islamic academic environment
for children to learn, grow, feel happy, and build self-confidence. In furtherance
of that mission, United Hearts sought (d)(1) use variance relief to construct the
proposed two-story school building, the multi-purpose building, an extension of
the wraparound parking lot, and a stormwater detention basin.
United Hearts specifically also sought a bulk variance for lot coverage of
66.4%, which was greater than the 50% permitted in the zone. In addition, they
sought a bulk variance for parking where 105 parking spaces are required and
49 were proposed. Their application was limited strictly for review of a use
variance and the associated bulk variances. In the event the variances were
granted, a subsequent application for site plan approval would transpire in the
normal course.
A-1492-24 3 The Board's Hearing of United Hearts' Application
The Board held a hearing on United Hearts' application and exclusively
voted on the (d)(1) use variance, as its denial led the Board not to vote on the
associated bulk variances. The Board denied the requested (d)(1) use variance
with a vote of four opposed and three in favor. The Board considered testimony
on behalf of United Hearts from: Jamil Hantash, the operator of the existing
one-story childcare center; Joseph A. Mancini, a professional engineer and
planner; Nik Kuzowsky, a registered and licensed architect; and Dan McGinnis,
a certified professional traffic operations engineer. The Board also heard
testimony from Bennet Matlack, the Township's Zoning Board engineer and
Christopher Dochney, the Zoning Board planner.
Mr. Hantash testified as to the operational details of the proposed school
and stated the existing daycare would remain open in addition to the proposed
school building. He also stated that twenty to twenty-five staff would operate
the school and ten staff members would operate the day care. He further testified
that 200 students maximum would be enrolled at the proposed school and 75
students maximum at the daycare. Mr. Hantash provided that in order to
maintain the traffic from pick-up and drop-offs at the schools, a dedicated
A-1492-24 4 employee would be stationed as a traffic controller to direct traffic in and out of
the site.
He also detailed the drop-off system as a staggered system to first usher
in elementary students, then middle school students, and then high school
students controlled by a large circle for one way in and one way out in order to
not affect the Pennypacker Drive flow of traffic. Mr. Hantash stipulated that the
students old enough to drive will not be permitted to drive to school and buses
will not be offered. He also agreed that the forty-nine proposed parking spaces
would only be available for the thirty-five staff members and fourteen potential
visitors and all potential events would be held in centers off site.
Mr. Mancini described the proposed use variance conditions as a two-
story building, a one-story building, and a counterclockwise circulation pattern
for traffic flow. He testified that the site would have drop-off lanes along the
south and east sides of the buildings. When the Board expressed concerns about
vehicles stacking up during pickup times, Mr. Mancini testified that the site can
easily accommodate up to eleven vehicles. The Board also expressed concerns
with respect to emergency vehicles such as large fire trucks and Mancini
responded that the site would adequately provide for safe and appropriate
circulation of all emergency vehicles.
A-1492-24 5 Mr. Kuzowsky's testimony generally described the layout of the two-story
school and one-story multipurpose buildings. He explained the structures' floor
plans, exterior, and the construction materials to be used.
Mr. McGinnis summarized the traffic and parking generation letter
submitted along with the application before the Board. He approximated the
expansion of the existing school would generate a total of 104 trips on and off
site during a weekday. He stated that permissible uses within the B-1 District
such as a strip retail plaza, convenience store, a drive-through bank, or a drive-
through coffee shop would "all generate more traffic than the proposed school
expansion would."
Mr. McGinnis stipulated to various conditions for approval as to traffic
operations such as: abiding by the staggered traffic operations detailed by Mr.
Hantash; obtaining then current 2023 traffic counts, as the traffic volume data
utilized was from 2019; analyzing the capacity of traffic signals and site
driveways to accommodate the additional traffic to confirm operations are
within acceptable parameters; and applying for a letter of no interest from the
New Jersey Department of Transportation (NJDOT) indicating that an access
permit is not required. He also stated that he was confident an access permit
would not be required, that the proposed traffic pattern will flow traffic
A-1492-24 6 effectively, and that traffic will not pose a problem on site or in the surrounding
area as a result of the proposed development.
Mr. Matlack testified on behalf of the Board and explicitly acknowledged
that United Hearts "addressed the comments in our review letter" and with
respect to "discussion about the parking and the operations of the site . . . [they]
took care of all the engineering aspects." Mr. Dochney, the Board's planner,
stated he found a "real potential negative impact . . . from a planning perspective
is parking and traffic . . . [b]ut in terms of the actual use variance . . . [he was]
in general agreement with Mr. Mancini's testimony." (Emphasis added). A
member of the public subsequently testified and expressed concerns about
developments across the street from the proposed school.
Prior to conducting a vote on the use variance, the Board's solicitor
discussed United Hearts' stipulations as a condition of approval to provide fire
safety proofs, current traffic counts, an application to the NJDOT for a letter of
no interest or an access permit, implementation of the testified operations plan,
and addressed student pedestrian access to the site. The solicitor further stated
that according to himself and the Board's experts "in doing th[e] balanc[ing] test,
[United Hearts' use variance] come[s] out on the positive side, and there's
A-1492-24 7 enough proofs there and . . . [they] addressed the conditions and callouts that
were contained in the [Board's] review letters."
Following the solicitor's statements, a Board member moved to approve
United Hearts' application. The Board then conducted a vote on the use variance
and one Board member voted "no," reasoning that "traffic can get backed up
now when it's just a daycare. So it's the traffic issue for me . . . I don't think the
staggered pattern has convinced me . . . I know that traffic pattern and . . . I don't
know how much staggering you can do." The other Board members voted "no"
and similarly reasoned they were concerned that the traffic would cause a
substantial detriment to the public good. The remaining three members all voted
in support of the motion to approve the application.
Subsequent to the decisions to deny the application, the Board's solicitor
inquired whether they had "made the determination that the anticipated traffic
in that location will cause a substantial detriment to the public good." The
Board's solicitor also asked, subsequent to each of the Board members'
responses, whether they had "done the balancing test and . . . made a
determination that the negative outweighs the positives, notwithstanding the
conditions that [United Hearts] agreed to." In its resolution, the Board detailed
A-1492-24 8 plaintiff's application, summarized the testimony of the witnesses, and reflected
the Board members' concerns about traffic to justify its denial.
The Board's resolution considered the application submitted by United
Hearts and identified the public interest at stake, acknowledging the inherently
beneficial nature of the proposed development. The resolution detailed United
Hearts' witnesses' testimonies which supported the positive criterion. The Board
examined the detrimental effects that could result from granting the use variance
and focused primarily on concerns about traffic congestion, inadequate parking,
and the lack of sidewalks.
The Board also memorialized various board members' and members of the
public's concerns with respect to their skepticism about the efficacy of United
Hearts' proposed mitigation measures as to the on-site staggered traffic
operations. The resolution further describes the Board's considerations as to
United Hearts' willingness to reduce the potential detriments, stipulations of
proffering updated traffic data, and acquisition of an NJDOT letter of no interest
as the estimated 100 additional trips are considered "significant" by the State.
On balance, the Board weighed the positive and negative criteria and concluded
that the negative impacts of the proposed development would cause a substantial
detriment to the public good.
A-1492-24 9 The Trial Court's Decision On United Hearts' Challenge To The Board's Resolution
United Hearts filed a complaint in lieu of prerogative writs to reverse and
vacate the Board's resolution and to declare the application approved and later
filed a motion to remand the matter for the Board to conduct further analysis of
its application. Judge Covert denied the motion and provided a written
statement of reasons detailing why she found a remand inappropriate at that
point. The judge explained that United Hearts' motion effectively asked her to
address the merits of one portion of its case, in a vacuum, without the benefit of
examining the entire record, or allowing briefing and argument on the variety of
issues raised by the action in lieu of prerogative writs.
Judge Covert then conducted a trial and addressed the merits of plaintiff's
application. She issued a November 12, 2024 order denying United Hearts'
request to reverse and vacate the Board's decision and instead determined a
remand to the Board for a rehearing and redetermination was required. In her
written opinion, Judge Covert summarized the parties' arguments and the
testimony presented at the hearing before the Board. Judge Covert also
addressed the balancing test detailed in Sica v. Bd. of Adjustment of Twp. of
Wall, 127 N.J. 152, 165-66 (1992), applicable to applications for beneficial use
variances.
A-1492-24 10 Judge Covert noted that United Hearts presented outdated traffic data from
2019 but explained that they used pre-COVID traffic counts based on their belief
that 2019 data was "more reflective of traffic in late 2023 than statistics from
2022 or early 2023," and also agreed to update its traffic pattern data. Judge
Covert further noted that the Board expressed concerns about new developments
nearby, but the record was otherwise silent on that point and any impact on
traffic at the site. Judge Covert also found that the record detailed certain
permissible uses in the B-1 District, which would generate even more traffic
than the proposed school but concluded the record did not elaborate on this issue
either, which if addressed would have aided her analysis to determine whether
the Board acted in an arbitrary and capricious manner.
Next, Judge Covert turned to Mr. McGinnis' testimony regarding site
traffic and found that none of the Board's experts explained or refuted that the
permitted uses detailed in the trip generation data would generate more traffic
than the proposed school. Judge Covert reasoned due to the data before the
Board, and a failure to further develop the record in crucial areas, a remand for
a rehearing was appropriate to ensure a correct and equitable result was reached.
Judge Covert explained that she recognized United Hearts bore the burden of
convincing the Board to allow the use variance, but she was "left without
A-1492-24 11 sufficient resources to engage in a proper analysis of whether or not the Board
acted reasonably due to shortcomings in the record on both sides. Particularly
given that [United Hearts] provide[d] a reasonable basis for utilizing 2019 traffic
statistics."
Additionally, Judge Covert explained that while a Board can reject or
accept the testimony of an expert witness, rejection of such witnesses must have
a reasonable basis in the record. Judge Covert further explained that a remand
was appropriate in light of the fact that the Board rejected all of the expert
witness' testimony and even seemingly rejected their own experts, including Mr.
Matlack, who stated United Hearts had "addressed all of the concerns in his
review letter," and Mr. Dochney, who was in "general agreement with Mr.
Mancini." Judge Covert also noted that the parties' experts "agreed that the
proposed use was inherently beneficial, and that traffic would not be a
substantial detriment, particularly with [the] agreed upon proposed conditions ."
Judge Covert reasoned that the record did not reflect "evidence to support the
Board's denial of the use variance" and reiterated that "while [B]oards can reject
expert conclusions, . . . even the Board's experts [were] not supportive of the
conclusions reached." Judge Covert therefore concluded that she required
A-1492-24 12 further development of the "record to clarify the issue of whether there was
arbitrary and capricious conduct by the Board."
The Board filed an application for reconsideration and after a case
management conference, Judge Covert entered a December 19, 2024 order
vacating the Board's resolution and again remanded the matter for a rehearing
and redetermination. Judge Covert's December 19, 2024 order, which vacated
the Board's resolution, relied upon her November 12, 2024 written decision. The
Board subsequently withdrew its motion for reconsideration and this appeal
followed.
II.
Before us, the Board contends it engaged in the proper Sica analysis and
properly denied the use variance by a vote of four to three. The Board maintains
that even with an inherently beneficial use, an applicant must satisfy the negative
criteria and asserts that United Hearts failed to meet its burden of proof with
respect to this criterion. The Board also contends that its members' traffic
concerns were an appropriate basis upon which to deny the application as it
found the traffic would cause a substantial detriment to the public good and that
the negative impact outweighed the positive, notwithstanding the conditions to
which United Hearts agreed. The Board analogizes what occurred here is akin
A-1492-24 13 to Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment , 423 N.J.
Super. 282, 292 (App. Div. 2011), in which we upheld a similar decision of the
Willingboro Zoning Board's decision to deny a variance for an inherently
beneficial use. We disagree with all the Board's challenges to the court's order.
III.
We first address the well-understood standards of review that guide our
analysis, followed by a discussion of the relevant substantive legal principles
related to this prerogative writs action involving a beneficial use.
"When reviewing a trial [judge's] decision regarding the validity of a local
board's determination, 'we are bound by the same standards as was the trial
[judge].'" Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs,
442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v.
Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)).
"[W]hen a party challenges a . . . board's decision through an action in lieu of
prerogative writs, the . . . board's decision is entitled to deference." Kane Props.,
LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). Thus, we must "give
deference to the actions and factual findings of local boards and may not disturb
such findings unless they [are] arbitrary, capricious, or unreasonable." Jacoby,
442 N.J. Super. at 462.
A-1492-24 14 "A board acts arbitrarily, capriciously, or unreasonably if its findings of
fact . . . 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). "[P]ublic bodies, because
of their peculiar knowledge of local conditions, must be allowed wide latitude
in their delegated discretion." Jock v. Zoning Bd. of Adjustment of Twp. of
Wall, 184 N.J. 562, 597 (2005). "Courts give greater deference to variance
denials than to grants of variances, since variances tend to impair sound zoning."
Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J.
Super 177, 199 (App. Div. 2001).
"A board's function is to make factual determinations based on the record
and decide whether the applicant has satisfied the statutory criteria for a
variance." Baghdikian v. Bd. of Adjustment of Borough of Ramsey, 247 N.J.
Super. 45, 49 (App. Div. 1991). The Municipal Land Use Law gives zoning
boards the power to grant or deny use, density, and height variances. N.J.S.A.
40:55D-70(d). "Because of the legislative preference for municipal land use
planning by ordinance rather than variance, use variances [under N.J.S.A.
40:55D-70(d)(1)] may be granted only in exceptional circumstances."
A-1492-24 15 Kinderkamack Rd. Assocs., LLC v. Mayor & Council of Borough of Oradell,
421 N.J. Super. 8, 12 (App. Div. 2011).
As a result, "a municipal board of adjustment may permit 'a use or
principal structure in a district restricted against such use or principal structure '
only where the applicant can demonstrate 'special reasons' for the variance" also
known as "positive criteria." Ibid. (quoting N.J.S.A. 40:55D-70(d)(1)). Further,
"a variance application must meet the 'negative criteria,' . . . by 'showing that
[the] variance can be granted without substantial detriment to the public good
and will not substantially impair the intent and purpose of the zone plan and
zoning ordinance.'" Ibid. (alteration in original) (first quoting New Brunswick
Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999),
then quoting N.J.S.A. 40:55D-70(d)).
"Special reasons" include "where the proposed use inherently serves the
public good, such as a school, hospital or public housing facility." Saddle Brook
Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super.
67, 76 (App. Div. 2006) (citing Sica, 127 N.J. at 159-60). "All use variance
applicants must satisfy the first prong of the negative criteria, which requires
proof that 'the variance can be granted without substantial detriment to the public
A-1492-24 16 good.'" Kinderkamack Rd. Assocs., 421 N.J. Super. at 13 (quoting Medici v.
BPR Co., 107 N.J. 1, 22 n.12 (1987)) (internal quotation marks omitted).
"[I]f the proposed use is inherently beneficial, the applicant's burden of
proof is significantly lessened because 'an inherently beneficial use
presumptively satisfies the positive criteria.'" Med. Ctr. at Princeton, 343 N.J.
Super. at 200 (quoting Smart SMR of New York, Inc. v. Borough of Fair Lawn
Bd. of Adjustment, 152 N.J. 309, 323 (1998)).
The Legislature has defined an "inherently beneficial use" as one "which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure." N.J.S.A. 40:55D-4. An inherently beneficial use is evaluated under the standard set forth in Sica . . . . The applicant under this more relaxed standard need not satisfy the "enhanced quality of proof" set forth by the Court in [Medici, 107 N.J. at 21].
Under Medici, the first inquiry under the negative criteria focuses on the potential effects of the variance on the surrounding properties. "The board of adjustment must evaluate the impact of the proposed use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Id. at 22 n.12 (internal quotation marks and citation omitted).
A-1492-24 17 Satisfaction of the second prong of the negative criteria analysis normally requires the applicant also "demonstrate through 'an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'"
[Advance at Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433 N.J. Super. 247, 254-55 (App. Div. 2013) (second omission in original).]
In Sica, the Court developed the following four-part procedure for
considering the positive and negative criteria:
First, the board should identify the public interest at stake. Some uses are more compelling than others. . . .
Second, the [b]oard should identify the detrimental effect that will ensue from the grant of the variance. Certain effects, such as an increase in traffic, or "some tendency to impair residential character, utility or value," will usually attend any nonresidential use in a residential zone. When minimal, such an effect need not outweigh an inherently beneficial use that satisfies the positive criteria.
Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions.
Fourth, the [b]oard should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. This balancing, "while properly making it more difficult for municipalities to
A-1492-24 18 exclude inherently beneficial uses permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses."
[127 N.J. at 165-66 (citations omitted).]
This test has essentially been codified by amendment to N.J.S.A. 40:55D–
70, to which the Legislature added language emphasizing that even if the
applicant proposes an inherently beneficial use, the negative criteria must be
satisfied. Smart SMR, 152 N.J. at 324.
A board may choose which witnesses, including expert witnesses, to
believe. El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 329 (App.
Div. 1991), certif. denied, 127 N.J. 546 (1991). However, to be binding on
appeal, that choice must be reasonably made. Kramer v. Bd. of
Adjustment, 45 N.J. 268, 288 (1965); Ocean County Cellular Tel. Co. v. Twp.
of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 537 (App. Div.
2002), certif. denied, 175 N.J. 75 (2002). In addition, the choice must be
explained, particularly where the board rejects the testimony of facially
reasonable witnesses. N.Y. SMSA v. Bd. of Adjustment of Twp. of
Weehawken, 370 N.J. Super. 319, 338 (2004).
A-1492-24 19 N.J.S.A. 40:55D-10(g) requires that a zoning board "reduce each decision
on an application to writing in the form of a resolution that included findings of
fact and conclusions of law." Id. at 332. "The factual findings set forth in a
resolution cannot consist of a mere recital of testimony or conclusory statements
couched in statutory language." Id. at 332-33. A zoning board's "resolution
must contain sufficient findings, based on the proofs submitted, to satisfy a
reviewing court that the board has analyzed the master plan and zoning
ordinance." Id. at 333. Where a variance is denied, the zoning board's factual
findings "must demonstrate with reference to facts and testimony on the record
. . . that the statutory requisites for the grant of a variance are absent." Cox &
Koenig, N.J. Zoning & Land Use Administration § 19-7.2 (2026).
A zoning board's resolution is the benchmark against which a decision
granting or denying a variance is measured. CBS Outdoor, Inc. v. Borough of
Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super 563, 580 (App. Div.
2010). A resolution must "explain fully the basis on which the Board has acted,
with ample reference to the record and the pertinent statutory
standards." Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J.
546, 566-67 (1981) (internal citations omitted). A board's resolution "must
contain sufficient findings, based on the proofs submitted, to satisfy a reviewing
A-1492-24 20 court that the board has analyzed the applicant's variance request in accordance
with the statute and in light of the municipality's master plan and zoning
ordinances." N.Y. SMSA, 370 N.J. Super. at 333.
Where a zoning board's decision is set forth in an inadequate resolution
lacking appropriate fact finding, "the reviewing court has no way of knowing
the basis for the board's decision" and, therefore, cannot conduct a proper
review of the board's determination. Ibid. Although a remand for
a board's reconsideration of its decision and for specific factual findings
supporting its determination is sometimes necessary where a resolution is
inadequate, Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. 111, 123
(App. Div. 2000), it is "not appropriate" where "the record clearly compels a
reversal of [a] [B]oard's action," N.Y. SMSA, 370 N.J. at 335.
IV.
Against this legal background, we discern no error with Judge Covert's
decision that a remand was necessary for additional factual findings by the
Board. The judge correctly noted based on the record before her, including the
Board's resolution, that although it remained plaintiff's burden to support its
need for a use variance, she was unable to "engage in a proper analysis" to
determine whether the Board's denial was arbitrary or capricious. In reviewing
A-1492-24 21 the transcripts of the municipal and trial court proceedings, as well as the court's
written decisions, it is clear Judge Covert's concerns were animated by the
Board's rejection of the application based on purported general traffic concerns,
and its failure of the Board to explain in any meaningful way its disagreement
with United Hearts' nearly undisputed expert testimony.
As Judge Covert specifically explained, plaintiff's experts and the Board
concurred that the proposed use was inherently beneficial and with the agreed
conditions, and that traffic would not be considered a substantial detriment. On
the first point, Mr. Dochney, the Board's planner, concurred with Mr. Mancini,
plaintiff's engineer, that the addition to the school was an inherently beneficial
use. As to traffic issues, Mr. Dochney testified he saw only a "potential negative
impact" related to parking and traffic, but notably qualified that concern when
he stated, "he was in general agreement with Mr. Mancini's testimony,"
regarding United Hearts' use variance application. (Emphasis added).
Nor did the Board's engineer, Mr. Matlack, provide contrary testimony.
Instead, he admitted United Hearts addressed all of the concerns he raised in his
letter of review. Mr. Matlack noted that sidewalks could be added to assist
students who choose to walk to school as a condition for any approval , but did
not specifically contradict any of United Hearts' expert testimony.
A-1492-24 22 Specifically, Mr. McGinnis testified that the projected traffic generated
by the proposed school would be approximately 100 trips during the morning
and afternoon peak hours, which is less than the traffic that would be generated
by other permitted uses in the B-1 District, such as a strip retail plaza,
convenience store, bank with a drive-through, or coffee shop with a drive-
through. He further explained that the site's design addressed any traffic
concerns; notably, the lengthy drive-through lane, one-way counterclockwise
circulation, and active traffic management with staggered drop-off and pick-up
times without significant queuing or negative impact on Pennypacker Drive or
Route 130. Mr. Mancini fully concurred with Mr. McGinnis and explained that
any negative traffic impacts from the proposed school should be weighed against
those of other permitted uses, and that the proposed use would not result in a
substantial detriment to the public good.
Neither of the Board's experts disagreed with United Hearts' experts'
traffic testimony. Indeed, Mr. Matlack agreed United Hearts addressed his
engineering and traffic concerns in his review letter and there was "some good
discussion about the parking and the operations of the site, and I think that took
care of all the engineering aspects." Mr. Dochney also agreed the only real
A-1492-24 23 potential negative impact was parking and traffic, but he was in "general
agreement with Mr. Mancini's testimony."
In light of the expert testimony, which seemingly addressed any traffic
concerns, the judge was well within her authority to require further explanations
as to why the Board failed to accept the experts' opinions. Indeed, the Board
members never addressed, for example, United Hearts' experts' evidence that
other permitted uses within the B-1 District would produce more traffic than the
proposed structures. See N.Y. SMSA, 370 N.J. Super. at 338 ("While a board
may reject expert testimony, it may not do so unreasonably, based upon bare
allegations or unsubstantiated beliefs."); see also Nextel of N.Y., Inc. v.
Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 34, 43
(App. Div. 2003) (affirming a Board's denial of a variance based on its rejection
of expert testimony where the Board's resolution provided "reasons for rejecting
[the expert's] testimony").
We reject the Board's arguments that Judge Covert failed to appreciate the
legal significance of United Hearts' reliance on 2019 traffic data and that
evidentiary deficiency should have resulted in an affirmance of the Board's
decision. Although we acknowledge the judge noted the stale nature of the
information at the time the matter was before her in 2024, as discussed, the
A-1492-24 24 primary animating reason for the judge's remand decision was not that United
Hearts relied on 2019 traffic data. Rather, the judge's concern stemmed from
the fact that the resolution and comments from the Board failed to address with
necessary specificity that United Hearts' expert testimony was uncontested on
all material facts, that other more intense, non-beneficial uses were permitted,
and the summary nature in which the Board addressed all of the Sica factors.
Further, United Hearts' reliance on the 2019 data must be placed in
context. Its traffic expert, Mr. McGinnis, based his report and testimony on the
2019 data and as explained to Judge Covert did so because post-COVID traffic
patterns were not yet certain and United Hearts expressly conditioned its
approval on previously updated traffic counts. On this critical point, as noted,
the Board's engineer neither disputed Mr. McGinnis' conclusions nor his
methodology. On the record before her, the Board's decision appeared to be
based on "imprecise traffic concerns while failing to undertake the required
analysis of the Sica 'balancing test' factors," and unsupported claims, based on
local beliefs and sentiment such that further fact finding to clarify these points
was required.
In addition, the purported staleness of the traffic data was never raised as
an issue by the Board, its experts, or any Board member in support of denying
A-1492-24 25 United Hearts' application. As best we can discern, counsel for the Board raised
it for the first time as a substantive issue during the prerogative writ s trial. The
record shows that the Board members who voted to deny the application did so
not on the vintage or accuracy of the data but rather general traffic concerns and
one Board member's inquiry regarding the efficacy of the staggered drop off
proposal. Further, as noted, both the Board's and United Hearts' experts
acknowledged use of the 2019 data and agreed to provide updated information
as a condition of any approval, without objection.
Although we acknowledge that Board members' knowledge of local
conditions is typically accorded wide latitude in their exercise of discretion, this
deference is not absolute, however, and does not permit, as here, a Board to
reject uncontroverted expert testimony unless it is based on a reasonable, fact-
based explanation in the record, not merely by conclusory statements or
"peculiar knowledge." Indeed, as we have previously held, "a board may reject
expert testimony, but it may not do so unreasonably, based only upon bare
allegations or unsubstantiated beliefs." N.Y. SMSA, 370 N.J. Super. at 338.
Our Supreme Court has also instructed that deference to local zoning boards is
"predicated on the existence of adequate evidence in the record supporting the
A-1492-24 26 board's determination either to grant or deny variance relief." Kramer, 45 N.J.
at 296-97.
Here, the primary objector on the Board stated familiarity with the area
and raised general traffic concerns as opposed to objections based on evidence
or data in the record. She specifically stated, she was "quite familiar with that
location and the traffic can get backed up now when it's just a daycare" and the
expert testimony on the "staggered pattern" did not "convince[]" her because
based on the traffic patterns and school schedule she was not aware of "how
much staggering you can do." As noted, and what clearly concerned Judge
Covert, was there was no expert testimony or specific date presented to dispute
United Hearts' traffic analysis, and the Board's own professionals agreed that it
addressed the relevant traffic concerns. Again, that testimony confirmed the
projected traffic from the proposed school would be less than that generated by
other permitted uses in the B-1 District, such as a retail plaza or convenience
store, and that the specific design—including a lengthy drive-through lane and
active traffic management—would properly address anticipated traffic without
significant queuing or negative impact on Pennypacker Drive or Route 130 .1
1 We are unconvinced by the Board's reliance upon Price Co. v. Zoning Bd. of Adjustment of Twp. of Union and El Shaer as both cases are factually
A-1492-24 27 A remand will allow the Board to consider updated traffic data, address
the expert testimony, and apply the Sica balancing test in a manner consistent
with the law. This is not a case where the applicant failed to present any
evidence, but rather one where the Board failed to engage with the evidence
presented.
Finally, we are unpersuaded by the Board's reliance on Salt & Light Co.
There, the Board included specific findings based on the record for rejecting the
expert testimony and denying the variance. Salt & Light Co., 423 N.J. Super. at
292. In concluding that the applicant failed to satisfy the negative criteria for
the use variance, the Board provided their full Sica findings. Id. at 286-86.
Specifically, the Board detailed its findings that "'Willingboro was built many
distinguishable. In Price Co., it appears the applicant's traffic experts' testimonies were contested, and the Board's traffic considerations were intimately linked to the "infamous" traffic conditions on Route 22 historically known to be "one of the most overcrowded" highways "both in volume of traffic and number of commercial and industrial establishments lining its sides ." 279 N.J. Super. 327, 328, 334 (Law Div. 1993) (citing Wilson v. Mountainside, 42 N.J. 426, 434-35 (1964)), aff'd o.b., Price Co. v. Zoning Bd. of Adjustment, 279 N.J. Super. 207 (App. Div. 1994). In El Shaer, the Board was "entitled to give little weight to the [applicants'] expert's conclusion" as to traffic and rely on their "personal knowledge of traffic conditions" because the applicant failed to submit the requested traffic analysis to adequately address the Board's traffic concerns. 249 N.J. Super. at 330-31. Here, the Board denied a use variance based on their familiarity with the area and general traffic concerns but failed to specifically address United Hearts' uncontested traffic experts' testimonies or proofs. A-1492-24 28 years ago as a grouping of single-family homes,' that plaintiff's proposed duplex
would be located 'in the middle of a block containing only single-family homes,'
and that its proposed use for two families 'would constitute a substantial
detriment to the neighborhood.'" Id. at 292.
Here, Judge Covert reasoned that the Board's resolution failed to address
adequately United Hearts' proofs, including the expert proofs detailing the
evidence that other permitted uses would generate more intense traffic than the
proposed school, or sufficiently detail their Sica findings sufficiently to permit
her to conduct an appropriate analysis. The Board's resolution simply recounts
the various testimonies it heard, identifies United Hearts' stipulations to a
staggered traffic operations plan, and notes the Board's engineer "require[ed] the
[a]pplicant to secure from the [NJDOT] . . . a letter of no interest or an access
permit." Moreover, the resolution memorialized the Board member's denials
were couched in traffic concerns based on their "aware[ness] of the traffic in
that area." Ultimately, unlike the Board's fulsome Sica findings in Salt & Light
Co., the resolution here is void of engagement with the proofs before the Board
to conclude that United Hearts failed to satisfy the negative criteria for the use
variance or a provision of their specific detailed findings as to what led the
A-1492-24 29 Board to determine, based on or in lieu of the proofs before it, the proposed
application would cause a substantial detriment to the public good.
In sum, we affirm Judge Covert's order which vacates the Board's
resolution and remand to the Board for it to reconsider the application based on
the evidence in the existing record, which may be supplemented to the extent
required to address or rebut any purported concerns the Board expresses. The
Board shall permit the parties to make such additional showings, and it shall
vote again on the application and issue a resolution detailing its factual findings
and conclusions of law supporting its decision as to the variances requested.
Our decision to affirm Judge Covert's order to remand to the Board should
not be considered an expression of opinion on the merits of plaintiff's application
or the Board's decision to deny the application and we expressly do not suggest
that the Board must approve the application. We simply concur that additional
fact finding would benefit the parties, and the court in the event any decision by
the Board is further challenged. The Board shall consider the application anew,
and decide the application based on the evidence in the existing record as
supplemented and permitted in this decision. See Smith, 335 N.J. Super. at 123.
A-1492-24 30 To the extent we have not addressed any of the remaining arguments
raised by the parties it is because we have determined they lack sufficient merit
to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1492-24 31