SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3067-18T2

GEORGE PETERS and MARINA

PETERS, 

Plaintiffs-Appellants, 

v. 

ZONING BOARD OF ADJUSTMENT, 

BOROUGH OF FORT LEE, NJ, and

V&R DEVELOPERS, INC., 

Defendants-Respondents. 

_________________________________

Submitted May 4, 2020 – Decided May 28, 2020

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-5221-17. 

George Peters and Marina Peters, appellants pro se. 

Marcanton D. Macri, attorney for respondent V&R 

Developers, Inc.

Marinello & Marinello, PC, attorneys for respondent 

Zoning Board of Adjustment Borough of Fort Lee, NJ, 

join in on the brief of respondent V&R Developers, Inc.

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Plaintiffs George and Marina Peters, brother and sister, own a home in 

Fort Lee next door to a property owned by defendant V&R Developers, Inc. 

("V&R"). Appearing pro se, they appeal the trial court's ruling that upheld a 

decision by the Borough of Fort Lee Zoning Board of Adjustment ("the Board") 

approving V&R's application to replace a preexisting building on the property. 

We affirm.

I.

We presume the parties' familiarity with the record and this matter's 

procedural history, and do not need to detail it at length here. The following 

abbreviated recitation will suffice.

V&R's plan is to construct a larger, two-unit residential dwelling that does 

not conform with the "R-2" zone's one-family use restriction. V&R accordingly 

requested a use variance under N.J.S.A. 40:55D-70(d)(1). V&R also sought a

floor area ratio ("FAR") variance under N.J.S.A. 40:55D-70(d)(4), and a 

building height variance under N.J.S.A. 40:55D-70(d)(6). In addition, V&R 

sought assorted "subsection (c)" variances under N.J.S.A. 40:55D-70(c) for "lot 

area, lot coverage, front yard, rear yard, and side yard setbacks, and height from 

the first floor to grade plane."
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At a hearing on June 13, 2017, V&R presented to the Board testimony 

from three experts to support the requested variances. The Board considered 

this expert testimony, written reports by both its own and V&R's experts, maps 

and photographs of the neighborhood, reports from municipal departments, and 

the testimony of neighbors. Plaintiffs introduced no expert testimony of their 

own.

The Board unanimously approved the application, memorialized in a 

detailed resolution on June 27, 2017. Among other things, the Board concluded 

the project would support the goals of the local zoning ordinance and not 

increase the density of the area, increase traffic, or otherwise negatively impact 

the surrounding neighborhood.

More specifically, the Board's resolution noted the property contained a 

preexisting non-conforming two-family residence1in a one-family zone which 

also had a "deficient front yard setback." The property is "a slight 

1 The Board’s resolution states in two places that the present use of the premises 

is as a one-family residence. However, these passages appear be clerical or 

typographical errors since the Borough tax and fire department records and the 

testimony of a neighbor show that the premises was being used as a two-family 

dwelling. Indeed, the first paragraph of the resolution recites that this is a 

"preexisting non-conforming two-family home." As we note, infra, we reject 

plaintiffs’ argument that alleged flaws in the resolution require the approval to 

be set aside.
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parallelogram, in that the front and rear lot lines are parallel but not at right 

angles to the side lot lines." The entire property is built on a sloping hill. 

The Board recognized the surrounding neighborhood "within 200 feet of 

the property . . . contain[s] a mix of one and two-family dwellings." It noted 

there was a "high-rise residential development one block east" and several threefamily dwellings nearby. 

The Board accepted the expert testimony of V&R's planner that there were 

"special reasons" to grant the use variance. In this regard, the Board noted "the 

uniqueness of the topography and location of this lot" in relation to the 

surrounding neighborhood. The Board also credited the testimony of V&R's 

architect concerning the property's topography and "difficult" corner location. 

The Board found the purposes of the Master Plan and Zoning Ordinance 

were met, because the development would replace "older dilapidated housing 

stock" while still maintaining the residential character of the neighborhood. 

Having considered these factors, the Board concluded that the use 

variances could "be granted without any negative effect upon the public good 

and without substantial impairment to the intent and purpose of the Zoning 

plan." 
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Additionally, the Board approved the subsection (d)(4) and (d)(6) 

variances for FAR and height, finding they would not produce a negative effect 

on surrounding residences. The Board also granted the subsection (c) variances. 

Dissatisfied with the Board's decision, plaintiffs filed the present action 

in the Law Division seeking relief in lieu of prerogative writs. Plaintiffs argued 

to the trial court the Board's decision is flawed and not supported by adequate 

reasons and evidence from the hearing. 

Following oral argument, the trial court issued a thirty-one-page written

opinion upholding the Board's decision. As part of its analysis, the court found 

that V&R had presented adequate "special reasons" to the Board to justify a use 

variance under subsection (d)(1). In particular, the Board "appropriately found 

that the Property's unique sloping condition and the slightly undersized existing 

corner lot size with preexisting non-conforming conditions," were conditions 

unique to the site. The court was also satisfied the proposed development would,

in fact, reduce some existing non-conformities by eliminating the detached 

garage, adding new drainage to the area, and increasing conforming parking. 

As to the other subsection (d) variances, the trial court concluded "the 

Board adequately addressed the height variance sought and its impact upon the 

surrounding properties," that the Board consulted the architectural plans and was 
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familiar with the proposed building's "relation to the sloping land," and that the 

Board adequately considered testimony regarding density issues and the FAR 

variance. The court expressly noted in this regard that "[t]he Board did not 

receive any contrary expert testimony during the hearing." 

This appeal ensued. Plaintiffs principally argue the Board and the trial 

court lacked adequate evidence to support the special reasons necessary for a 

use variance under subsection (d)(1). In addition, plaintiffs contend the record 

likewise does not justify the area, bulk, yard, and other variances that were 

approved. They urge that we reverse the trial court and vacate the approvals.

II.

The scope of judicial review in land use cases is limited. It is well 

established that "the law presumes that boards of adjustment and municipal 

governing bodies will act fairly and with proper motives and for valid reasons 

[and] will be set aside only when it is arbitrary, capricious and unreasonable." 

Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); see also Friends 

of Peapack-Gladstone; 407 N.J. Super. 404, 424 (App. Div. 2009) (affirming the 

"judiciary's limited standard of review of local land use decisions"). Those who 

challenge the local board's actions, such as the objectors here, have the burden 

of proving the decision is arbitrary, capricious, and unreasonable. See Dunbar 
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Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 

558 (2018).

A reviewing court may not substitute its judgment "for the proper exercise 

of the Board's discretion." CBS Outdoor, Inc. v. Borough of Lebanon Planning 

Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010). That said, 

a land use board's interpretation of the law is reviewed de novo. Dunbar Homes, 

233 N.J. at 559.

Applying these cardinal principles of judicial review here, we reject 

plaintiffs' contentions of error. We affirm the trial court's decision upholding 

the Board's approval of V&R's application, substantially for the sound reasons 

expressed in Judge Gregg A. Padovano's detailed written opinion. We only add 

a few comments.

First, we discern no procedural infirmity in how the Board proceeded with 

the hearing in this case. The Board fairly considered the lay testimony of both 

plaintiffs as well as that of other neighbors who opposed the project. The Board 

considered photographs the plaintiffs had taken of the property and the 

surrounding area, and their contentions that the project would obstruct lines of 

sight at the nearby crosswalk and create unsafe traffic patterns. The Board did 

not misapply its authority in declining to consider certain traffic analyses that 
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Mr. Peters, a former Board member, had performed, because he admittedly is 

not a qualified expert witness. See N.J.R.E. 701 and 702 (distinguishing 

between admissible and inadmissible opinion testimony by experts and nonexperts). 

The Board applied its authority under N.J.S.A. 40:55D-10(d) to impose 

"reasonable limitations" on the hearing. As the trial court noted, although the 

hearing got off to an "acrimonious start" when there was a dispute about the 

placement of defendant's expert's exhibits, a review of the whole record did "not 

reveal any egregious behavior" of any participants that would ultimately affect 

the decision. The Board allowed plaintiffs and any other objectors to ask 

questions and present opposing information. In fact, the record shows plaintiffs 

questioned V&R's experts extensively and were able to submit their own 

evidence into the record. The Board properly limited certain lines of 

questioning, rejected expert evidence that was proffered by the lay-witness 

plaintiffs, and otherwise appropriately managed the hearings. Plaintiffs' 

assertions of procedural unfairness are meritless. 

Second, despite plaintiffs' arguments to the contrary, there is ample proof 

in the record to support the findings of the Board and the trial court that V&R 

had presented adequate special reasons to justify the use variance for a two-
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family dwelling. As the trial court noted, the Board reasonably found that V&R 

had met its heightened burden to obtain such a variance under subsection (d)(1) 

and pertinent case law, see Medici v. BPR Co., 107 N.J. 1, 18 (1987), and

appropriately weighed the applicable positive and negative criteria in favor of 

the applicant.

The Board had the prerogative to find persuasive and credible the 

testimony of V&R's testifying experts, whose qualifications are unrefuted. A 

land use board "has the choice of accepting or rejecting the testimony of 

witnesses, and where reasonably made, such decision is conclusive on appeal." 

Cox & Koenig, New Jersey Zoning & Land Use Administration, § 18-4.2 (2019);

See also Sea Girt, 45 N.J. at 288 (same); Bd. of Educ. of City of Clifton v.

Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 434 (App. 

Div. 2009) (same, and citing cases). 

As we have already noted, the record includes, among other things, 

evidence that: (1) the new development would not increase the residential 

density of the area because there was already a non-conforming two-family unit 

on the property; (2) the neighborhood already had a mix of one- and two- family 

homes, (3) the variances were needed to accommodate the sloped topography 
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and corner layout of the property; and (4) the property could physically 

accommodate the variances. 

Many of these same rationales were cited approvingly by the Supreme 

Court in Price v. Himeji, LLC., 214 N.J. 263, 293 (2013), in which the Court 

clarified the standards for subsection (d)(1) use variances and approved a multifamily residential development. In Price, the Court described the developer's 

expert's testimony in detail, and concluded that through this testimony and other 

proofs, the developer "amply met its burden of demonstrating this special reason 

for the use variance it requested." Ibid. 

Several rationales cited approvingly by the Court in Price are pertinent 

here. For instance, in Price a proposed multi-family use was not permitted in 

the zone; however, the parcel was "across the street" from a zone where the use 

was permitted. Id. at 274. Likewise, in the present case the proposed two-family 

unit replaces another two-family unit and is closely adjacent to several other 

multi-family properties. 

Plaintiffs cite Cerdel Constr. Co., Inc. v. East Hanover Tp., 86 N.J. 303, 

306 (1981) for the proposition that merely being adjacent to another zone where 

a use would be allowed is not sufficient to grant a use variance. However, in 

Cerdel the developer sought to build a "professional building" on a plot of land 
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with a pre-existing one-family residence in a one-family zone. Id. at 305. 

Although the property abutted a commercial zone, the Supreme Court held this 

was insufficient to meet the "special reasons" required for a use ordinance. Id.

at 307. By contrast here, V&R is seeking to replace an existing two-family 

nonconforming dwelling with another two-family building, maintaining the 

basic character of the property, and has provided numerous other reasons why 

the new development is appropriate to this particular property. Cerdel is 

inapposite. 

We also note that in Price the developer argued that demolishing the 

preexisting buildings on the property, which were in need of "substantial 

rehabilitation and development" and replacing them with the proposed project, 

would improve the surrounding neighborhood. Price, 214 N.J. at 275. Here, the 

Board similarly concluded that the current property was dilapidated, and that 

replacing it with newer residential housing was consistent with the Fort Lee 

Zoning Ordinance and Master Plan. 

Other positive elements of the new development here included improving 

the drainage on the property, adding sidewalks where none currently existed, 

and increasing certain setbacks, which were also tied to the Zoning Ordinance 

and Master Plan.
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For these and many other reasons, we concur with the trial that the Board 

had ample grounds in the record to approve the requested (d)(1) use variance.

Similarly, we agree with the trial court that the Board reasonably approved 

the other variances that V&R sought. The height variance was supported by 

unrefuted expert testimony. The Board duly considered the concerns of 

plaintiffs and certain other neighbors that the higher new building would block 

light upon their own properties. Nonetheless, considering the overall context of 

the neighborhood, the Board had a reasonable basis to approve the height 

variance. Likewise, the density and FAR variances have reasonable support in 

the record. The same is true of the bulk variance and other relief granted under 

subsection (c).

We reject plaintiffs' contention that the Board's resolution was fatally 

incomplete. Although some aspects of the resolution could have been more 

detailed, or more carefully proofread, we agree with the trial court that the 

findings set forth in the resolution passed muster under N.J.S.A. 40:55D-10(g).

The remaining points raised on appeal lack sufficient merit to warrant 

discussion. R. 2:11-3(e)(1)(e). 

Affirmed.