SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T2 GEORGE PETERS and MARINA P ETERS, Plaintiffs

- Appellants,

v. Z ONING 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 Super ior Cour t of New Jersey, Law Division , Bergen County, Docket No. L

- 5221

- 17. George Peters and Marina Peters, a ppellants pro se. Marcanton D. Macri, attorney for respondent V&R Developers, Inc

. Marinello & Marinell o, PC, attorneys for re spondent Zoning Board o f Adjustment Borough of Fort Lee, NJ, join in on the brief of respondent V&R Develope r s , Inc.

NOT FOR PUBLICATION WITH OUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "co nstitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM Plaintiffs George and Marina Peters, brother a nd 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 t hat upheld a decision by the Borough of Fort Lee Zoning Board of Adjustment ("the Board")
ap proving V&R's application to repl ace 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 r ecitation will suffice.
V&R's pla n is to construct a larger, two

- unit residential dwelling that does

no t 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") varianc e 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 ya rd, rear yard , and side yard setb acks, and height from the first floor to grade plane. "3 A

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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 a nd V&R's experts, maps and photographs of the neighborhood, reports fr om municipal departments, and the testimony of neighbors

. Plaintiffs introduced no expert testimony of their

own. The Board unanimousl y approved the app lication, memorialized in a detai led resolution on June 27, 2017 . Among other things, the Board conclu ded 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 neighborh ood. More specifically, the Board's resolution noted the property cont ained a preexisting non

- conforming two

- family residence 1 in 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 th e Borough tax and fire department records and the testimony of a neigh bor 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." A s we note, infra, we reject plaintiffs’ argument that alleged flaws in the resolution require the approval to be set aside.4 A

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parallelogram, in that the front and rear lot lines are parallel but not at right angles to the side l ot lines." The entire property is built on a sloping hill. The Board recognized the su rrounding neighborhood "within 200 feet of the property . . . contain[s] a mix of one and two

- fam ily dwellings." It noted there was a "high

- rise residential developme nt one block east" and several three

family 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, th e Board noted "the uniqueness of the topography and lo cation 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 loc ation. The Boar d found the purposes of the Master Plan and Zoning Ord inance
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 Boa rd 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."5 A

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

var iances for FAR and height , finding they would not prod uce 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 se eking 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 i ts 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 fo und that the Pro perty's unique sloping condition and the slightly unde rsized 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 , re duce some existi ng 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 vari ance sought and its impact upon the surrounding properties," that the Board consulted the architectural plans and was6 A

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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 regar d 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 e vidence to support the special reasons necessary for a use variance un der subsection (d)(1). In addition, plaintiffs contend the record likewise does not justify the area, bulk, yard, and other variances that we re approved. They urge that we reverse the trial court and vacate the approvals.
II. The scope of judicial review in land use case s is limited. It is well established that "the law presumes that boards of adjustment and municipal governing bodies will ac t fairly and with proper motives and for val id reasons [and] will be set aside only when it is arbitrary, capricio us 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 "ju diciary's limited standard of review of local land use decisions"). T hose who challenge the local board's actions, such as the objectors here, have the burden of proving the decision is arbitrary, capricious, an d unreasonable. See Dunbar7 A

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Homes, Inc. v. Z oning 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 Leba non Planning Bd./Bd. of Adjustment , 414 N.J. Super. 563, 578 (App. Div. 2010). That said, a land use board's inte rpretation of the law is reviewed de novo. Dunbar Homes , 233 N.J. at 559. Applying these cardinal principles of judicial review here, we reje ct plaintiffs' contentions of error. We aff irm the trial court's decision upholding the Board's approval of V&R's application, substantially for the sound reasons expressed in Judge Greg g A. Pad o vano'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 f airly considered the lay testimony of both plaintiffs as well as that of other neighbors who opposed the project. The Board considered photogr aphs the plaintiffs had taken of the propert y and the surrounding area, and their contentions that the project wou ld 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 that8 A

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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 non

experts). The Board applied its aut hority 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 o f the whole record did "not reveal any egregious behavior" of any part icipants that would ultimately affect the decision. The Board allowed plaintiffs and any other objectors to ask questions and present opposin g information. In fact, the record shows pl aintiffs 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 t he lay

- witness plaintiffs, and otherwise app ropriately 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 ha d 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 u nder subsection (d)(1) and pertinent case la w, see Medici v. BPR Co ., 107 N.J. 1, 18 (1987) , and appropriately wei gh ed 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, who se 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 Ci ty 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 ot her 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 topography10 A

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and cor ner 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. Himej i, LLC. , 214 N.J. 263, 293 (2013) , in which the Court clarified the st andards for subsection ( d ) (1) use variances and approved a multi

family residential development. In Price , the Court described the developer's expert's testimony in detail, and conclude d that through this testimony and other proofs, the developer "amply m et 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 instan ce, in Price a proposed multi

- fam ily 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

- famil y unit and is closely adjacent to several other multi

- family propertie s. 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 var iance. However, in Cerdel the develo per sought to build a "professional building" on a plot of land11 A

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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 zo ne, the Supreme Court held this

w as 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 , maintaini ng the basic character of the pro perty , and has provided numerous othe r 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 b uildings on the property, which were in need of "substantial rehabilit ation 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 cu rrent property was dilapidated, and that replacing it with newer resid ential 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, a dding sidewalks where none currently existed, and increasing certain s etbacks, which were also tied to the Zoning Ordinance and Master Plan.12 A

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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 approv e the requested (d)(1) use variance. Similarly, we agree with the tria l court that the Board reasonably approved the other variances that V&R sought. The height variance was supported by unrefuted ex pert 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 r easonable basis to approve the height variance. Likewis e, 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 B oard's resolution was fatally incomplete. Although some aspects of the resolution could have been more detailed, or more care fully proofread, we agree with the trial court that the findings set forth in the resolution passed muster under N.J.S.A. 40:55D

- 1 0(g). The remaining points raised on appeal lack suffici ent merit to warrant discussion. R. 2:11

- 3 (e) (1) (e)

. Affirmed.