SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3741-17T3

S/K OLD YORK ROAD 

ASSOCIATES, LP,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF BRANCHBURG, 

THE TOWNSHIP COMMITTEE OF 

THE TOWNSHIP OF BRANCHBURG, 

and THE PLANNING BOARD OF

THE TOWNSHIP OF BRANCHBURG,

Defendants-Respondents.

__________________________________

S/K OLD YORK ROAD

ASSOCIATES, LP,

Plaintiff-Appellant,

v.

THE PLANNING BOARD OF THE

TOWNSHIP OF BRANCHBURG

and CONIFER, LLC, 

Defendants-Respondents.

__________________________________

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3741-17T3

Argued October 21, 2019 – Decided

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Docket Nos. L-0657-17

and L-0972-17.

Derek W. Orth argued the cause for appellant 

(Inglesino, Webster, Wyciskala & Taylor, LLC, 

attorneys; Derek W. Orth, on the briefs).

William P. Robertson argued the cause for respondents 

Township of Branchburg and Township Committee of 

the Township of Branchburg (DiFrancesco, Bateman, 

Kunzman, Davis, Lehrer & Flaum, PC, attorneys; 

William P. Robertson, on the brief).

Mark S. Anderson argued the cause for respondent The 

Planning Board of the Township of Branchburg 

(Woolson Anderson, PC, attorneys; Mark S. Anderson 

and Christine Salimbene, on the brief). 

Stacy L. Moore, Jr., argued the cause for respondent

Conifer, LLC (Parker McCay, PA, attorneys; Harris 

Neal Feldman, of counsel; Stacy L. Moore, Jr., on the 

brief).

PER CURIAM

In this consolidated action in lieu of prerogative writs, plaintiff S/K Old

York Road Associates, L.P. (Old York), appeals from a March 13, 2018 order 

dismissing its complaints challenging: (1) a zoning ordinance amendment 

changing the zoning of the subject 9.5-acre parcel (the property) from O-Office 

December 24, 2019
3

A-3741-17T3

to AH-2 Affordable Housing—non-age-restricted, multi-family, 100%

affordable rental apartment housing and accessory uses—that was adopted to 

comply with Branchburg Township's Third Round affordable housing mandate

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

(2) preliminary site plan approval granted with waivers by the Branchburg 

Township Planning Board (the Board) to defendant developer Conifer, LLC, to 

construct a 100-unit affordable residential rental housing project on the Property 

bordering property owned by Old York. We affirm the dismissal of Old York's 

complaints substantially for the reasons stated by Judge Thomas C. Miller in his 

comprehensive ninety-four-page statement of reasons. 

I.

The Property is located along Route 202 in the Township of Branchburg 

(the Township). It is owned by the Township and comprised of approximately 

9.5 acres spanning three parcels designated as Block 74, Lots 3, 3.01, and 3.02 

on the Township’s official tax map. The Property is locally known as the 

"Triangle Site" for its shape. "It is bounded on the northwest by Old York Road, 

on the northeast by the Whiton Hills development, and on the southeast by U.S. 

Route 202. The Property is bisected by wetlands that significantly impair the 
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A-3741-17T3

development of the site. It is currently undeveloped and populated with mature 

woodlands." 

Old York owns adjacent property designated as Block 74, Lot 1; it consists 

of approximately twenty-four acres developed with a residential apartment 

complex known as Whiton Hills. Defendant Conifer is a real estate development 

company.

In July 2010, the Board "adopted the Revised Third Round Housing 

Element and Fair Share Plan in accordance with the MLUL to address the 

Township's third round affordable housing obligations" and to remain 

compliant with the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 to -329. The 

documents detailed the Township's affordable housing history and plan to 

address the Township's third round affordable housing obligations. The plan 

specified the Township was actively attempting to acquire the Triangle Site in 

order to contract with an affordable housing provider to construct 120 affordable 

rental units in furtherance of satisfying the Township's rental obligation. 

"In December 2011[,] the Township adopted the Land Use Plan Element 

of the Branchburg Master Plan pursuant to N.J.S.A. 40:55D-28(b)(2)." The 

Land Use Plan Element provides, as part of its stated goals and objectives:

Goal 4: To address Branchburg Township's affordable 

housing obligations.
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Objective 4a: To provide for a variety of housing 

types compatible with the size and scale of the 

surrounding area serving a broad range of needs of 

Branchburg residents of all ages and income levels.

Objective 4b: To address the affordable housing 

obligation with the minimum amount of new residential 

construction.

The Land Use Element also stated goals such as the "preservation of the rural 

character of [the Township's] undeveloped areas (Goal 2), [provision of]

compatible infill development (Goal 3), and protection of the Township's 

important natural resources (Goal 7)." 

In October 2014, the Board adopted the 2014 Reexamination Report of 

the Master Plan pursuant to N.J.S.A. 40:55D-89. The report documented the 

changes in policies, assumptions, and objectives underlying the Master Plan 

since the previous reexamination report. It specified affordable housing as an 

area of concern. It recommended amending any land use regulations and zoning 

designations that inhibited the potential for affordable housing. 

The preliminary site plan approval application sought waivers of fiftynine check list requirements, deferring nine checklist requirements until final 

approval, and six design waivers. Plaintiff objected to the waivers and argued 

the application was not complete. Despite this, the Board deemed the 
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application complete and granted the checklist and deferral waivers, but 

refrained from approving the design waivers.

On October 24, 2016, the Township entered into an Affordable Housing 

Agreement with Conifer to facilitate the construction, ownership, and 

management of a 100-unit affordable rental project on the Triangle Property in 

furtherance of satisfying the Township's affordable housing obligation. 

On March 13, 2017, the Committee introduced Ordinance No. 2017-1308. 

The Ordinance proposed to rezone the Triangle Site from O-Office to a newly 

created zone designated as AH-2. The purpose of the new zone was to "provide 

for non-age restricted, multi-family, 100% affordable, rental apartments and 

accessory uses. The [O]rdinance was referred to the Planning Board for 

consistency review in accordance with N.J.S.A. 40:55D-26." 

The consistency review was completed on March 28, 2017; a letter 

confirming the Ordinance was not inconsistent with the Township's Master Plan 

was issued to the Committee the following day. The Committee conducted a 

public hearing and adopted the Ordinance on April 10, 2017. 

On March 31, 2017, Conifer applied for preliminary site approval to 

construct the 100-unit affordable rental project on the Triangle Site. The Board 

held public hearings on April 18, 25, and May 1, 2017. Conifer presented expert 
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testimony from its project engineer, traffic engineers, and project consultant. 

Old York was represented by counsel who cross-examined Conifer's witnesses 

at length. Old York also presented its own experts, including a licensed civil 

engineer and traffic expert. Although it had the opportunity to present expert 

testimony regarding landscaping concerns, Old York's expert did not appear for 

the April 25, 2017 hearing before the Board concluded testimony for the evening

at approximately 11:30 p.m. The Board agreed to hear the expert's testimony at 

the subsequent May 1, 2017 hearing, but Old York advised the witness was "still 

unavailable." 

At the conclusion of the testimony, the Board granted Conifer's 

application for preliminary site plan approval, along with the requested waivers, 

based upon the evidence presented and subject to certain conditions. The Board 

adopted a Resolution on June 27, 2017, detailing its findings that the proposed 

development was a permitted use in the AH-2 zone, "consistent with the goals 

and objectives of the Master Plan[,] and in furtherance of the Township's 

affordable housing obligations." The Board was further satisfied Conifer 

"submitted sufficient information on the fundamental elements of the [Plan] as 

to permit preliminary site plan approval." 
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A-3741-17T3

On May 25, 2017, Old York filed an action in lieu of prerogative writs to 

challenge the Committee's adoption of the Ordinance and the Board's finding of 

consistency (Docket No. SOM-L-657-17) (the First Complaint). The complaint 

alleged: (1) the Ordinance violated the MLUL, in part, because the zone change 

was not recommended by the Township's 2011 Land Use Element or the 2014 

Master Plan Examination Report (count one); (2) the Committee engaged in 

unlawful contract zoning (count two); (3) the rezoning was unlawful because it 

constituted spot zoning (count three); and (4) the Township exceeded its zoning 

authority by sustaining the rental requirement imposed by the Ordinance (count 

four). The action sought to invalidate the Ordinance. 

On August 11, 2017, Old York filed a second action in lieu of prerogative 

writs based on the Board's grant of preliminary site plan approval to Conifer

(Docket No. SOM-L-972-17) (the Second Complaint). The complaint alleged: 

(1) the Board's action was arbitrary, capricious, and unreasonable based on 

defects in Conifer's site plan application and the Board's refusal to allow Old 

York to put on a full objector case (count one); and (2) the Board lacked 

jurisdiction over Conifer's application (count two). The action sought to 

overturn the preliminary site plan approval. 
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A-3741-17T3

The trial court consolidated the first and second complaints for trial. On 

February 22, 2018, the court conducted a one-day bench trial. On March 14, 

2018, the court issued an order and written statement of reasons dismissing the 

first and second complaints with prejudice. The court concluded Old York failed 

to meet its heavy burden of proof. It further determined the Ordinance was 

neither arbitrary, capricious, nor unreasonable, represented a valid exercise of 

the Township's zoning power that advanced the creation of affordable housing, 

was consistent with the Master Plan, and advanced the purposes of the MLUL. 

The 2010 Revised Third Round Plan earmarked the Property for 

affordable housing. The Council on Affordable Housing (COAH) never ruled 

on the sufficiency of the 2010 Revised Third Round Plan and failed to adopt 

regulations governing the third round. Nevertheless, the court found the 

Ordinance "is substantially consistent with COAH's Substantive Rules for the 

development of [the Township's] housing plan and represents a suitable site as 

defined by COAH's rules."

The court rejected the opinions and conclusions of Old York's expert, John 

McDonough, finding they did not accurately or fully characterize the existing 

site conditions and the surrounding land uses. It further found his testimony 

stated negative impacts in a conclusory fashion without any evidence to support 
10 A-3741-17T3

such assertions. His testimony also did not fully analyze COAH's Second Round 

Rules and either ignored or did not fully analyze the Township's adopted land 

use policies with respect to the Ordinance and its application to the subject 

property. The court concluded McDonough did not present any convincing 

evidence that the Ordinance was in conflict with the MLUL and the credible 

testimony of the opposing experts "substantially outweigh and overcome his 

opinions in that regard." 

The court also rejected Old York's spot and contract zoning arguments 

since those concepts have no application to municipally owned property used in 

furtherance of the public purpose of creating affordable rental housing. It also 

found the Ordinance is valid as part of a comprehensive plan, essential to the 

general welfare, and clearly within the Township's zoning power. The court 

rejected Old York's lack of jurisdiction argument. The court further found the 

record supported a finding that the developer provided sufficient information 

regarding the feasibility of a compliant stormwater management plan to the 

Board allowing it to grant preliminary site plan approval. 

As to Old York's claim that it was prevented from fully presenting its 

objector case, the court concluded Old York was given a fair and ample 
11 A-3741-17T3

opportunity to present witnesses and cross-examine the developer's witnesses, 

noting a planning board has discretion to limit testimony in a reasonable manner. 

This appeal followed. Old York seeks reversal of the dismissal of counts 

one and four of the first complaint and count one of the second complaint. It 

raises the following points on appeal:

POINT I: THE TRIAL COURT ERRONEOUSLY 

DETERMINED THAT THE ORDINANCE WAS 

CONSISTENT WITH AND DESIGNED TO 

EFFECTUATE THE TOWNSHIP'S LAND USE 

ELEMENT. 

POINT II: IF THE APPELLATE COURT FINDS 

THAT THE ORDINANCE WAS INCONSISTENT 

WITH OR NOT DESIGNED TO EFFECTUATE THE 

LAND USE ELEMENT, THE ORDINANCE MUST 

BE DECLARED VOID. 

POINT III: THE TRIAL COURT'S AFFIRMATION 

OF THE RENTAL HOUSING REQUIREMENTS IN 

THE ORDINANCE WAS INCORRECT AS A 

MATTER OF LAW. 

POINT IV: THE TRIAL COURT ERRED BY 

AFFIRMING THE BOARD'S GRANT OF 

PRELIMINARY SITE PLAN APPROVAL TO 

CONIFER BECAUSE CONIFER FAILED TO 

PROVIDE SUFFICIENT EVIDENCE 

DEMONSTRATING THE FEASIBILITY OF ITS 

DRAINAGE AND STORMWATER MANAGEMENT 

PLANS. 

POINT V: THE TRIAL COURT ERRED IN 

DETERMINING THAT THE BOARD PROVIDED 
12 A-3741-17T3

OLD YORK WITH ADEQUATE OPPORTUNITY TO 

PRESENT ITS OBJECTOR CASE DURING THE 

HEARINGS BELOW. 

II.

Our review is governed by well-established principles. "[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." Fallone Props., L.L.C. 

v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). 

Thus, our review of the Township's and the Board's actions is limited.

"[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 Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope 

of judicial review is not to suggest a decision that may be better than the one 

made by the board, but to determine whether the board could reasonably have 

reached its decision on the record." Ibid. Thus, a reviewing court must not 

substitute its own judgment for that of the local board unless there is a clear 

abuse of discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. 

Windsor Twp., 172 N.J. 75, 82 (2002) (citing Med. Realty Assocs. v. Bd. of 

Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988)). 
13 A-3741-17T3

"A presumption of validity attaches to a zoning ordinance that may be 

overcome only if an opponent of the ordinance establishes the ordinance is 

'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental 

principles of zoning or the [zoning] statute.'" Manalapan Realty, L.P. v. Twp. 

Comm. of Twp. of Manalapan, 140 N.J. 366, 380 (1995) (alteration in original) 

(quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 

(1973)). "Although the judicial role is circumscribed, a court may declare an 

ordinance invalid if in enacting the ordinance the municipality has not complied 

with the requirements of the statute." Riggs v. Long Beach Twp., 109 N.J. 601, 

611 (1988) (citing Taxpayer Ass'n of Weymouth Twp, Inc. v. Weymouth Twp., 

80 N.J. 6, 20 (1976)). Riggs adopted the following objective test to determine 

an ordinance's validity:

First, the ordinance must advance one of the purposes 

of the [MLUL] as set forth in N.J.S.A. 40:55D–2. 

Second, the ordinance must be substantially consistent 

with the land use plan element and the housing plan 

element of the master plan or designed to effectuate 

such plan elements, unless the requirements of that 

statute are otherwise satisfied. Third, the ordinance 

must comport with constitutional constraints on the 

zoning power, including those pertaining to due 

process, equal protection, and the prohibition against 

confiscation. Fourth, the ordinance must be adopted in 

accordance with statutory and municipal procedural 

requirements.
14 A-3741-17T3

[Griepenburg v. Twp. of Ocean, 220 N.J. 239, 253 

(2015) (quoting Riggs, 109 N.J. at 611–12 (citations 

and internal quotation marks omitted)).]

In reviewing a municipal zoning board's decision, courts must be mindful 

that the Legislature vested zoning boards with the discretion to make decisions 

that reflect the character and level of development within their municipality. 

Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967). A planning 

board's discretionary decisions carry a rebuttable presumption of validity. 

Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970). 

The "decision of a zoning board may be set aside only when it is 'arbitrary, 

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

Co., 107 N.J. 1, 15 (1987)). The burden is on the challenging party to overcome 

this highly deferential standard of review. Smart SMR of N.Y., Inc. v. Borough 

of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). 

III.

We affirm the dismissal of the first and second complaints with prejudice 

substantially for the reasons stated by Judge Miller in his comprehensive and 

cogent statement of reasons. Judge Miller's findings are amply supported by the 

record and his conclusions fully comport with applicable legal principles. We 

discern no basis to disturb his rulings. We add the following comments. 
15 A-3741-17T3

Our Supreme Court has explained that its decisions in Southern 

Burlington County N.A.A.C.P. v. Mount Laurel Township., 67 N.J. 151, 179 

(1975) (Mount Laurel I) and South Burlington County N.A.A.C.P. v. Township. 

of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II):

recognized that the power to zone carries a 

constitutional obligation to do so in a manner that 

creates a realistic opportunity for producing a fair share 

of the regional present and prospective need for 

housing low- and moderate-income families. The 

Legislature enacted the Fair Housing Act of 1985 (FHA 

or the Act), N.J.S.A. 52:27D-301 to -329, to assist in 

municipal compliance with that constitutional 

obligation. 

[In re Adoption of N.J.A.C. 5:96 and 5:97 by the N.J. 

Council on Affordable Hous., 221 N.J. 1, 3-4 (2015).]

The Court emphasized its decades long constitutional doctrine of 

requiring municipalities to implement measures to make affordable housing 

"realistically possible." Id. at 7.

In 1975, this Court prohibited the discriminatory 

use of zoning powers and mandated that each 

developing municipality "must, by its land use 

regulations, make realistically possible the opportunity 

for an appropriate variety and choice of housing for all 

categories of people who may desire to live there, of 

course including those of low and moderate income." 

[Mount Laurel I, 67 N.J. at 179, 187]. In 1983, the 

Court reaffirmed the constitutional obligation that 

towns provide “a realistic opportunity for the 

construction of [their] fair share of the present and 
16 A-3741-17T3

prospective regional need for low and moderate income 

housing.” [Mount Laurel II, 92 N.J. at 205] (citing 

Mount Laurel I, 67 N.J. at 174).

[Ibid. (second alteration in original).]

As correctly recognized by Judge Miller, the provision of affordable 

housing is "an absolute essential in promotion of the general welfare required in 

all local land use regulation," Mount Laurel I, 67 N.J. 151, 179 (1975), and 

advances one of the principles of the MLUL set forth in N.J.S.A. 40:55D-2, 

Sartoga v. Borough of West Paterson, 346 N.J. Super. 569, 580 (App. Div. 

2002). The Ordinance permissibly advances the goal of affordable housing in 

the Township.

Old York contends the Ordinance constitutes impermissible spot zoning. 

We disagree. "'Spot zoning' is the use of the zoning power to benefit particular 

private interests rather than the collective interests of the community. It is 

zoning which disregards the requirement of [N.J.S.A. 40:55D-62(a)] that 

regulation be accomplished in accordance with a comprehensive plan to promote 

the general welfare." Weymouth Twp., 80 N.J. at 18. Old York bears the burden 

of proving that the Ordinance constitutes illegal "spot zoning." Id. at 19. We 

agree with the trial court that it did not satisfy that burden. 
17 A-3741-17T3

As observed by Judge Miller, the Property was owned by the Township. 

The Township is exempt from its zoning regulations. See Thornton v. Vill. of 

Ridgewood, 17 N.J. 499, 513 (1955) (noting the zoning statute "contain[s] no 

specific limitation upon municipal use of land"). This exemption has been 

extended to entities who join in advancing a public purpose. Hills of Troy 

Neighborhood Ass'n. v. Twp. of Parsippany-Troy Hills, 392 N.J. Super. 593, 

607 (Law Div. 2005). Nevertheless, municipal exemption from zoning 

regulation is subject to a test of reasonableness. Id. at 601-06. We do not find 

the use of the Property for affordable housing to be unreasonable. 

More fundamentally, the Ordinance advanced the general welfare of the 

community and the State by promoting the availability of affordable housing in 

the Township, thereby addressing its constitutional mandate to make low and 

moderate income housing "realistically possible." 

As further noted by the judge, the Property "is contiguous to [Old York's] 

property which is a high density, inclusionary, affordable housing project. 

Certainly, the use type is compatible with surrounding uses." The judge also 

found "the bulk standards for building height, buffering and building separation 

are reasonable and rational under the circumstances. Further, those standards, 

although slightly different from the zoning on Old York's contiguous parcel, 
18 A-3741-17T3

they are in substantial conformity with the zone plan and the surrounding 

properties." We agree "that that the record supports the proposition that the 

proposed Ordinance is part of a comprehensive plan." 

Finally, we address Old York's argument that the Board prevented it from 

presenting its entire objector case. Old York contends the Board arbitrarily and 

unreasonably precluded it from presenting the testimony of its expert regarding 

landscaping concerns. The record reveals the expert chose to attend a hearing 

in a different municipality on April 25, 2017, and did not arrive until 11:30 p.m. 

before the Board. By that point, testimony was concluded for the evening. The 

Board offered to allow the expert to testify on May 1, 2017, but the expert did 

not appear. Old York maintains that the expert was not available on that date

without providing specific reasons for his unavailability. 

The judge found Old York "was given a fair and ample opportunity to 

present witnesses and cross-examine Conifer's experts." It "had three meetings 

to present the testimony of a landscape witness, but unfortunately it chose a 

witness who could not attend." A township planning board has discretion to 

limit testimony and cross-examination in a reasonable manner. The court noted 

that pursuant to N.J.S.A. 40:55D-10(d), the testimony of witnesses is "subject 

to the discretion of the presiding officer and to reasonable limitations as to time 
19 A-3741-17T3

and number of witnesses." Moreover, "[j]ust because a person is an objector 

does not confer an absolute right to have an applicant's matter adjourned due to 

claimed inability to attend one of several scheduled hearings." Mercurio v.

DelVecchio, 285 N.J. Super. 328, 334-35 (App. Div. 1995). "Generally, it is the 

applicant and the Board that control the scheduling of the application." Id. at 

335. 

The judge also found that "[t]he Board simply followed its own rules that 

no testimony be heard after 10:30 p.m." The Board's decision to adjourn the

hearing at 11:30 p.m. and to "'start fresh' on May 1, 2017" were deemed rational 

and appropriate. Under the totality of the circumstances, we discern no abuse 

of discretion by the Board or the judge. 

Affirmed.