SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0511-19

 A-0636-19

1 MEMORIAL DRIVE LLC,

Plaintiff-Appellant,

v. 

160 WEST BROADWAY 

ASSOCIATES, LP, and 

PATERSON PLANNING BOARD,

Defendants-Respondents.

______________________________

RIVERVIEW TOWERS I, LLC and 

RIVERVIEW TOWERS II, LLC,

Plaintiffs-Appellants,

v.

160 WEST BROADWAY 

ASSOCIATES, LP, CITY OF 

PATERSON PLANNING 

BOARD and 1 MEMORIAL

DRIVE, 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NOT FOR PUBLICATION WITHOUT THE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-0511-19

Argued May 17, 2021 – Decided August 13, 2021

Before Judges Hoffman, Suter and Smith.

On appeal from the Superior Court of New Jersey, 

Law Division, Passaic County, Docket Nos. L-3874-

17 and L-3935-17.

Justin D. Santagata argued the cause for appellant 1 

Memorial Drive, LLC, in A-0511-19 (Kaufman 

Semeraro & Leibman, LLP, attorneys; Justin D. 

Santagata, on the brief).

Ira E. Weiner argued the cause for appellants 

Riverview Tower I, LLC, and Riverview Tower II, 

LLC, in A-0636-19 (Beattie Padovano, LLC, 

attorneys; Ira E. Weiner, of counsel and on the briefs).

John M. Carbone argued the cause for respondent 160 

West Broadway Associates, LP, (Carbone and Faasse, 

attorneys; John M. Carbone, on the brief).

Alfred V. Acquaviva argued the cause for respondent 

City of Paterson Planning Board Board. 

PER CURIAM

In this consolidated appeal, plaintiff 1 Memorial Drive, LLC 

(Memorial), and plaintiffs Riverview Towers I, LLC, and Riverview Towers 

II, LLC (Riverview Towers), appeal from the September 5, 2019 Law Division 

judgment affirming the decision of the City of Paterson Planning Board (the 

Board), which granted the site plan application of defendant 160 West 

Broadway Associates, LLC (160 West). The application proposed to expand 
3

A-0511-19

and improve a supermarket site, which had been vacant for five years, by 

converting approximately 7,000 square feet of storage space into retail space. 

On appeal, plaintiffs contend the Board adopted a legally deficient 

resolution, which contained insufficient findings of fact and conclusions of 

law. In addition, they assert the Board inappropriately relied on the report of 

its planner and failed to properly reconcile conflicting expert testimony 

regarding the plan's traffic circulation pattern.

Based on our review, the record does not support the Law Division 

judge's "finding that [the Board] did not act arbitrarily, capriciously, or 

unreasonably in approving the application." The Board's memorializing 

resolution approved a truck circulation pattern that would violate the New 

Jersey Motor Vehicle Code (the MV Code); in addition, the resolution failed to 

set forth adequate findings to support the Board's decision. We therefore 

reverse.

I.

On June 30, 2017, 160 West applied for preliminary and final site-plan 

approvals, with variances, to renovate, expand, and re-occupy retail space (the 

supermarket) located in its strip mall on West Broadway in Paterson. 160 

West Broadway (the property) lies on the north side of County Road 673, 
4

A-0511-19

bounded on the west by Cliff Street and on the north by Christopher Columbus 

Drive/Northwest Street. Located near four high-rise residential apartment 

buildings called the Riverview Towers, the property measures 1.61 acres in a 

trapezoidal shape. The property contains an existing retail strip-mall 

composed of six units, the largest of which was last used as a supermarket, 

occupying almost 18,000 square feet of the mall. 

The property is in Paterson's First Ward Redevelopment Area in the C-2 

general commercial district. The First Ward Redevelopment Plan (the 

Redevelopment Plan) supersedes all use, bulk and design standards in the 

Paterson zoning ordinance and governs the development of the property. The 

Redevelopment Plan states that "any deviation from standards of this Plan that 

results in a 'd' variance pursuant to N.J.S.A. 40:55D-70d shall be addressed as 

an amendment to the Plan rather than via variance relief through the Paterson 

Zoning Board of Adjustment." 

In June 2017, 160 West, as owner/landlord, applied for preliminary and 

final site plan approvals and "c" bulk variances (the application) for a tenant 

fit-out for the back warehouse section of the property. The application 

proposed to expand the existing supermarket to occupy 24,731 square feet of 
5

A-0511-19

floor area by converting 6,702 square feet of warehouse space previously used 

for storage.

The application presented three circulation plans on how the trucks 

would enter and exit the property. The first circulation plan depicted a truck 

entering from the north and traveling south. The truck would have to stop on 

West Broadway near Cliff Street, wait for an opening in traffic, and then make 

a left turn into an exit-only driveway (at the north end of the property), cross 

parts of two parking spaces, continue halfway down the front of the building, 

and then maneuver in reverse over three parking spaces to access the loading 

dock on the northeast side of the building. 

The second circulation plan considered a tractor-trailer proceeding north 

on West Broadway, passing the exit-only driveway at the north end of the 

property, stopping and then backing-up on West Broadway and blocking both 

lanes of traffic while maneuvering in reverse on West Broadway and backing 

into the site through an exit driveway to access the loading dock. 

The third circulation plan depicted a tractor-trailer heading north on 

West Broadway, maneuvering into and blocking oncoming traffic, and 

swinging into the access driveway's exit at the north end of the property. The 

truck would need to make many forward-reverse maneuvers in the parking lot 
6

A-0511-19

to back into the loading dock without reentering traffic on West Broadway. 

This plan would traverse three parking spaces and would impact the City 

sidewalk and public right-of-way at the corner of Cliff Street and West 

Broadway.

Hongchao Yu, Patterson's city engineer, evaluated the circulation plans 

and traffic diagram. In an August 1, 2017 email to the Board's planner, 

Michael Deutsch, Yu wrote that the circulation plan would create "severe 

adverse impact" on both traffic safety and mobility. The email stated:

At your request, I reviewed the provided plan for the 

above project. In reviewing the particular Truck 

Circulation Plan, the design truck WB-50 is designed 

to completely occupy and block West Broadway when 

maneuvering into its loading dock. To consider that 

West Broadway is a major arterial road and one of 

[the] busiest roads so that severe adverse impact on 

both traffic and safety and mobility is obviously 

predicted, I cannot be in support of the design. In 

addition, since West Broadway is also a County Road, 

I don't think the County will approve it either. 

FYI, the provided Truck Circulation Plan is not 

correctly scaled. 

Deutsch concurred with Yu's opinion that the truck circulation plan was 

unsafe.

The Board identified three variances necessary for 160 West's 

application: 1) a front yard setback 49.9 feet from West Broadway, when only 
7

A-0511-19

five feet was permitted; 2) parking spaces eight feet six inches wide, when 

nine feet was required; and 3) no curbed landscaping island, equal to at least 

five percent of the parking area, where a parking lot contains over twenty-five 

parking spaces.1

On September 6, 2017, at the first Board hearing on the application, 160 

West presented three witnesses: Calisto Bertin (an engineering expert), VJ 

Aynilian2(a property manager), and Brigette Bogart3(a professional planner).

1

 Examination of the Redevelopment Plan indicates the application required at 

least three more variances, including: a) "no building must front a parking lot 

either visually or physically"; b) "the façade of the commercial street shall be 

made permeable"; and c) chain link fences are prohibited around parking lots. 

In fact, as we discuss later in this opinion, Riverview Towers contends the 

application required twelve more variances.

2

 The commercial property manager for VAP International (VAP), Aynilian

testified that he managed the day-to-day operations of a commercial portfolio

that included the property. He explained that VAP purchased the property in 

the early '90s and that the supermarket "has always been a supermarket." The 

proposed expanded supermarket, if approved, would hopefully "act as the 

anchor for the shopping center and . . . attract more satellite stores . . . ." 

3

 Accepted as a planning expert, Bogart explained that the application 

involved "a lawfully existing site, . . . a lawfully existing building, and . . .

permitted uses"; additionally, the application abided by "the most recent 2015 

resolution of approval by the Planning Board." In her professional opinion, 

the project provided planning benefits, "because you're in a redevelopment 

area. You don't want to have a building sit [and] lie vacant, you want 

economic viability . . . ." 
8

A-0511-19

Bertin testified that he was involved in the preparation of the site plan 

that was originally dated August 25, 2016, and last revised on August 25, 

2017. He explained improvements had been made to the previously-approved 

plan, including moving the parking away from the sidewalk, replacing the 

entire sidewalk and curb on West Broadway, replacing the driveway, and 

improving the drainage. Bertin explained that the applicant planned to restripe the parking lot and put in stop signs. By restriping the parking lot, the

applicant would increase the number of spaces by one or two in the back right 

corner, because the spaces were only eight-and-a-half feet wide.

Bertin stated that the approval obtained back in December 2015 was 

conditioned on obtaining "County site plan approval." This approval was 

conditioned on the truck maneuvering on the property. He explained:

What the County approved was that a truck would 

back into the site from West Broadway and there's an 

agreement that's been processed with the County. The 

County actually has some procedures for I think it's 

called short-term road closures. These are closures of 

just a couple of minutes where there's a requirement to 

have flaggers and people direct traffic to allow the 

truck to back into the site. And there's a strict 

procedure and that's been agreed to by the County.

When asked if it was legal to have commercial vehicles back up on West 

Broadway to enter the property, Bertin responded "yes," noting that "the 
9

A-0511-19

County approved it and as far as I know[,] under those conditions[,] it's legal." 

He stated that he did not know if the new operator of the supermarket would 

restrict deliveries to only straight trucks and not tractor-trailers. When asked 

if there was enough space on the site to perform the truck maneuver, he 

responded:

The problem is that if a truck were to come in 

say from the easterly driveway by the car wash, there's 

no way he can pull up far enough to back in. If he 

were to pull in the driveway and back up – again, 

there's not enough real estate. I guess if we excavated 

along Cliff Street, we might be able to get them to 

maneuver a couple of times, but there's not enough 

room on this site for a truck to pull up and back in. 

Usually we leave from the loading dock out a hundred 

feet for a truck to make the maneuver. Unfortunately, 

we don't have it.

Bertin admitted that the delivery trucks would have to back into the property in 

the middle of traffic on West Broadway, with the help of flaggers. Upon 

hearing this response, two Board commissioners expressed safety concerns. 

160 West concluded its testimony at the September 6, 2017 hearing 

without presenting any expert testimony on its truck circulation plan and gave 

no indication it expected to present such testimony to the Board. When some 

Board members appeared uncomfortable with the truck circulation plan, 

counsel for 160 West requested the opportunity to "come back on the 27th" – 
10 A-0511-19

at that time, "I'll come back with an amended plan or I'll come back with a 

reason why I can't do an amended plan . . . ."

On September 27, 2017, 160 West returned to the Board. Rather than an 

amended plan, 160 West appeared with a traffic expert, without any prior 

notice. As a result, Riverview Towers' attorney objected and requested the 

Board require the expert to submit a report and grant Riverview Towers an 

opportunity to provide rebuttal expert testimony. The Board denied the 

request.

The Board then heard the testimony of 160 West's expert, Joseph 

Staigar, after recognizing him as a traffic expert. Staigar explained that he 

focused his review on "the deliveries and how the deliveries would take place, 

what the frequency is, and again how it would be actually facilitated by the 

site." Deliveries could "arrive at the site on a frequency of up to maybe ten 

times a day[,]" with most deliveries coming from "box trucks and the step 

vans" and would stay "completely contained within the site." 

Staigar testified there would also be tractor-trailer deliveries to the site; 

however, those deliveries would be less frequent, zero to a maximum of two 

per day. There would be two sizes of tractor-trailers delivering to the site: 
11 A-0511-19

WB-40s and WB-50s.4 Deliveries involving WB-50s, which would be very 

infrequent (at most once a day), would have to back into the site from the 

northerly driveway, and would involve a "flagger" to control traffic. He 

explained:

I've watched traffic on West Broadway and the 

ability to make those maneuvers can be made. Clear 

visibility. Alignment of the roadway is straight and 

rather flat in the area. So again, with the precautions 

that will be mandated as a condition of our approval 

with the County and could be put into a condition here 

with the Planning Board, it'll be a safe and efficient 

access for delivery trucks.

Staigar did not think the truck circulation maneuvers were unsafe and 

stated that if these types of maneuvers were prohibited, "you're going to find 

vacant pieces of property if you don't allow for these types of deliveries." He 

added that his testimony on the frequencies of the deliveries was based entirely 

upon his discussions with the property owner. He also said that the operator of 

the supermarket would supply the flaggers; if the operator did not, there would 

be no flaggers. He did not know how that requirement would be enforced.

Staigar disagreed with the plans provided by the Board's traffic engineer 

that showed tractor-trailers would have to cross the opposite lane of traffic to 

4

 According to Staigar, "The WB[-]40 stands for [a] wheelbase 40 feet from 

the front axle to the center of the two rear axles[,]" and a WB-50 stands for a 

wheelbase fifty feet from the front axle to the center of the two rear axles.
12 A-0511-19

back into the property. He stated, "I analyzed it myself and it does not have to 

cross. It may cross that centerline, the physical centerline of the road, but not 

into the opposing lane."

After Staigar completed his testimony, counsel for Riverview Towers 

renewed his request to present a rebuttal traffic expert because he received no 

notice that 160 West was going to present additional expert testimony. The 

Board ignored this request and voted four to two to approve 160 West's 

application. On October 19, 2017, the Board adopted a resolution 

memorializing approval of 160 West's application. That resolution was 

contingent upon "the applicant providing traffic control in the form of a 

'flagger' to control incoming and outgoing tractor-trailer deliveries," and "the 

prohibition of all deliveries made by WB-50 tractor-trailers between the hours 

of 7:00 a.m. and 9:00 a.m. and 3:00 p.m. and 5:00 p.m." 

On October 5, 2018, after plaintiffs filed complaints in lieu of 

prerogative writs challenging the Board's approval, the trial court remanded 

the matter to the Board to "supplement and clarify the record." The remand 

order specifically provided that "[t]he remand will be limited to permit 

[p]laintiffs to present expert testimony on the traffic issue only." The court's 

accompanying "Statement of Reasons" explained, "The Board deprived . . . 
13 A-0511-19

[p]laintiff[s] a fair opportunity to present a traffic expert. . . . The additional 

traffic information is necessary to assist the Board in making a fully informed 

decision on this pivotal issue and to complete the record for review on appeal." 

On December 19, 2018, the Board held the remand hearing and heard the 

testimony of Riverview Towers' expert, Gary Dean, a traffic engineer.5

Dean testified that he was asked to take a particular interest in the access 

to this property for trucks and deliveries for the proposed supermarket. His 

review focused on truck circulation and the method of operation as presented 

in terms of accommodating all sizes of trucks that would deliver to a 

supermarket tenant. He prepared a written study, dated October 30, 2018.

Dean reviewed the available maps and aerial photography, visited the 

property, and reviewed the plans as a desktop exercise. He found the proposed 

truck circulation plan was not a viable option for the property. "The proposed 

circulation either creates safety [concerns] with movements on the public street 

or it conflicts with vehicles on the site itself." According to Dean, the site 

plan, proposed "to alter the driveways from how they were originally 

5

 Five days before the remand hearing, 160 West submitted a supplemental 

traffic report prepared by Staigar. Between the submission of the 

supplemental traffic report and the remand hearing, the trial court held a 

telephone conference and ruled that 160 West could not submit the report. 

Notwithstanding the court's ruling and the clear limits of the remand order, 

Staigar's supplemental traffic report was inexplicably distributed to the Board.
14 A-0511-19

approved. And by that, the applicant propose[d] to make the easterly driveway 

both in and out and to also narrow the driveway, and also to narrow the exit 

only driveway at the westerly end of the site nearest Cliff Street."

Dean's major concern with the proposed truck circulation plan was the 

use of tractor-trailers, which would need to back into the site, obstructing all 

westbound traffic and blocking all lanes of traffic on West Broadway. In his 

opinion, "that is neither safe nor efficient." "It's not appropriate for trucks to 

be backing on a public street into private property and . . . it's contrary to a 

driver's expectation[,]" in addition to "be[ing] inherently unsafe[,] . . . . such a 

practice actually violates the law[,]" specifically N.J.S.A. 39:4-56 and N.J.S.A. 

39:4-67.

Dean testified that the proposed use of "flaggers" to control traffic while 

the tractor-trailer maneuvers into the property was not feasible – "the problem 

with that practice is that's not allowed in New Jersey." He explained that there 

are only three categories of "people who are sanctioned under the motor

vehicle [C]ode to lawfully direct traffic": law enforcement officers, crossing 

guards (who are essentially deputized as part of the police department), and 

construction flaggers in a "work zone." "None of those conditions would exist 

for this practice of essentially having a civilian come from the store or exit the 
15 A-0511-19

truck to stop and hope that traffic yields to the truck that needs to back up on 

the street." Furthermore, he believed that this maneuver would require two or 

more flaggers.

Dean also questioned the size of the box truck that 160 West indicated 

would use the site. Dean's exhibit depicted a single-unit, forty-foot box truck, 

the same size as refrigerated trucks commonly used to deliver produce or meat 

to supermarkets. 160 West's presentation, however, depicted a thirty-foot 

truck, with a smaller wheelbase.

Dean explained that to enter the site westbound on West Broadway, 

[t]he first thing the truck has to do . . . is cross the 

centerline, a conflict with eastbound traffic. . . . The 

truck then turns right and comes into the driveway. 

And . . . because the driveway was being narrowed, 

the truck swings across the exit lane of the driveway. 

So if there's a car trying to leave while this beverage 

truck or delivery truck arrives, he's stuck on the street. 

He has to wait for the car to clear. That impedes 

traffic.

Dean further explained that once the truck makes the initial right-hand turn, if 

there is a car parked in the first angled parking space, the truck would not fit; 

when the truck exits, if it turns left, there is no problem; but if it turns right, it 

will swing into the oncoming lane of traffic traveling east on West Broadway, 

"which in my opinion means the site has not been properly designed to 
16 A-0511-19

accommodate what I think is a very common and typical truck that would 

deliver to a supermarket."

Dean said that the applicant had "conceded that a tractor-trailer simply 

can't circulate without having to back up on a public street." A typical tractortrailer is fifty-three feet long, but the applicant depicted a tractor-trailer that 

was only forty-eight feet, meaning it was more maneuverable. There was a 

"logical expectation" that this site would get deliveries using fifty-three-foot 

tractor-trailers, which made all of the circulation depicted on various plans by 

the applicant even more problematic.

Dean concluded:

So in my opinion, reviewing this with an eye toward 

nothing more than public safety, I've concluded that 

this is not a viable plan. The practice as was 

presented violates several statutes in terms of motor 

vehicle flow, it would be contrary to a driver's 

expectation, and I think presents a public hazard to 

which this Board would be a part should you approve 

the plan as presented.

Nevertheless, Dean acknowledged that the traffic pattern that he was 

criticizing had been approved by the County Planning Board, but only with 

flaggers.

The Board questioned Dean about the fact that it proposed to restrict the 

time of deliveries (between 7:00 a.m. and 9:00 a.m., and 3:00 p.m. and 5:00 
17 A-0511-19

p.m.), and the testimony that there would be no more than two tractor-trailer 

deliveries per day. Dean responded that traffic was essentially the same just 

outside of "peak hours." Additionally, he testified that "safety is . . .binary; it 

either works or it doesn't[,]" regardless of how many deliveries were expected. 

"[I]t needs to be a safe operation irrespective of the frequency. That's my 

opinion." 

Dean questioned how the operator of the supermarket could limit any 

particular vendor's delivery times; in addition he noted that the Board did not 

have any testimony from the proposed operator, so it really did not have 

evidence about the delivery frequency or the size of potential delivery trucks, 

or whether the operator could comply with the "flagger" requirement. Dean 

further explained that smaller trucks – not just tractor and trailers – would 

have serious problems maneuvering inside the property. 

After hearing Dean's testimony, the Board again voted to approve 160 

West's application. Many of the Board members commented on the purported 

need for a supermarket in the area in supporting approval of the application. 

The resolution, adopted by the Board on March 6, 2019, was contingent upon 

"the applicant providing traffic control in the form of a 'flagger' to control 

incoming and outgoing tractor-trailer deliveries;" and "the prohibition of all 
18 A-0511-19

deliveries made by WB-50 tractor-trailers between the hours of 7:00 a.m. and 

9:00 a.m. and 3:00 p.m. and 5:00 p.m." 

On September 5, 2019, the trial court affirmed the Board's approval. In 

a written opinion, the trial court acknowledged that the proposed traffic 

circulation plan was "not necessarily . . . the most feasible or logical one." In 

addressing plaintiffs' argument that the proposed traffic circulation plan would 

violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67, the court stated that the traffic 

plan approved by the Board "has yet to violate [these] statutes. One cannot be 

charged or be found guilty of a motor vehicle offense without actually 

committing the act." This appeal followed.

II.

The decision of a municipal zoning board is entitled to substantial 

deference. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). 

This deferential standard is the same for both trial and appellate courts. 

Bressman v. Gash, 131 N.J. 517, 529 (1993). Due to their "peculiar 

knowledge of local conditions," municipal boards are afforded wide latitude in 

the exercise of their delegated discretion. Pierce Ests. Corp. v. Bridgewater 

Twp. Zoning Bd., 303 N.J. Super. 507, 514 (App. Div. 1997). Courts 

reviewing a municipal board's action on zoning applications are limited to 
19 A-0511-19

determining whether the board's decision was arbitrary, capricious, or 

unreasonable. Bressman, 131 N.J. at 529; Med. Ctr. at Princeton v. Princeton 

Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001). "However, because 

the interpretation of a statute or ordinance presents essentially a legal issue, 

conclusions of a municipal board on matters of statutory interpretation are not 

entitled to any particular deference." N.Y. SMSA v. Bd. of Adjustment, 370 

N.J. Super. 319, 331 (App. Div. 2004).

The Board's Resolution

Plaintiffs contend that the Board's resolution was legally deficient 

because it contained insufficient findings of fact and conclusions of law. They 

argue that the resolution must contain adequate independent findings of fact 

and conclusions of law and cannot merely rely on the Board planner's report; 

in addition, they contend the Board failed to properly reconcile the conflicting 

expert testimony regarding the traffic circulation pattern. We agree.

Based on our review, the trial court erred by affirming the Board's 

resolution because the resolution was inadequate as a matter of law. At a 

minimum, the legal insufficiency of the resolution would warrant a remand to 

the Board for reconsideration and specific factual findings. N.Y. SMSA, 370 

N.J. Super. at 332-33. However, because the record demonstrates that the 
20 A-0511-19

Board's approval of 160 West's application was arbitrary, capricious, and 

unreasonable, compelling a reversal of the Board's actions, we decline to 

remand for reconsideration and specific factual findings.

a. Findings of Fact — Testimony

Riverview Towers argue that the Board's resolution must contain 

adequate independent findings of fact and conclusions of law, and cannot 

merely rely on the Board planner's report. According to Riverview Towers, 

"With only a few minor departures, the Board's resolution is lifted word-forword from the Board planner's report. . . . The only differences between the 

resolution and Deutsch's recitation of his report in the record, are where [the 

Board's planner] made comments that would negatively affect the application." 

Riverview Towers' argument has merit.

A land use board's decision regarding the relief requested by an 

applicant must be embodied in the form of a written resolution, which includes 

findings of fact and conclusions of law. Id. at 332; N.J.S.A. 40:55D-10(g). 

The requirement of a memorializing resolution is set forth in N.J.S.A. 40:55D10(g), which provides:

The municipal agency shall include findings of fact 

and conclusions based thereon in each decision on any 

application for development and shall reduce the 
21 A-0511-19

decision to writing. The municipal agency shall 

provide the findings and conclusions through:

(1) A resolution adopted at a meeting held within the 

time period provided in the act for action by the 

municipal agency on the application for development; 

or

(2) A memorializing resolution adopted at a meeting 

held not later than 45 days after the date of the 

meeting at which the municipal agency voted to grant 

or deny approval. . . . If the municipal agency fails to 

adopt a resolution or memorializing resolution as 

hereinabove specified, any interested party may apply 

to the Superior Court in a summary manner for an 

order compelling the municipal agency to reduce its 

findings and conclusions to writing within a stated 

time, and the cost of the application, including 

attorney's fees, shall be assessed against the 

municipality.

In order to satisfy this requirement:

The factual findings set forth in a resolution cannot 

consist of a mere recital of testimony or conclusory 

statements couched in statutory language. Rather, the 

resolution must contain sufficient findings, based on 

the proofs submitted, to satisfy a reviewing 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 ordinance. 

Without such findings of fact and conclusions of law, 

the reviewing court has no way of knowing the basis 

of the board's decision.

[Id. at 332-33 (citations omitted).]
22 A-0511-19

In Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 123 

(App. Div. 2000), where the zoning board granted the applicant a dimensional 

bulk variance, we found the board's resolution to be "woefully inadequate." 

The resolution did not specify whether the variance was granted because of 

undue hardship caused by the unique condition of the land or structure, or 

because it afforded an opportunity for improved zoning and planning. Ibid. 

Nor did it describe or specify the unique condition of the property or structure 

resulting in undue hardship under (c)(1) or for improved zoning under (c)(2). 

Ibid. "The Zoning Board's enigmatic reference to 'providing additional space,' 

as an appropriate zoning objective, was far too nebulous a finding upon which 

to ground the grant of a (c)(1) or (2) variance." Ibid. As a result, we reversed 

the variance approval. Ibid. 

Here, with only a few minor departures, paragraphs one through twentythree of the resolution are a verbatim recitation of the planner's report. At the 

hearing on September 6, 2017, Deutsch read a significant portion of his report 

into the record, and the resolution includes most of what he read, except for 

the portions of his report that would have negatively affected the application. 

A review of the resolution establishes that the Board made no 

independent findings of fact. While the "[w]hereas" clauses set forth who 
23 A-0511-19

testified at the hearings – Bertin (engineer expert), Aynilian (property 

manager), Bogart (professional planner), Staigar (160 West's traffic expert), 

and Dean (Riverview Towers' traffic expert) – the resolution contained no 

summary of their testimony, made no specific findings of fact as to any of their 

testimony, and made no specific findings of credibility as to any of the 

witnesses. We conclude the Board made insufficient findings of fact to satisfy 

the requirements of N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super. at 332-

33.

b. Finding of Facts and Conclusions of Law – Conflicting Expert 

Testimony

Based upon our review of the record, the Board failed to properly 

reconcile the conflicting expert testimony on traffic circulation. 

Zoning boards may choose which witnesses, including expert witnesses, 

to believe. El Shaer v. Plan. Bd., 249 N.J. Super. 323, 329 (App. Div. 1991). 

Although a board "is not bound to accept the testimony of the expert, its 

determination must be made on a rational and reasonable basis." Reich v. Fort 

Lee Zoning Bd., 414 N.J. Super. 483, 504-05 (App. Div. 2010). Indeed, to be 

binding on appeal, that choice must be reasonably made. Kramer, 45 N.J. at 

288. Further, "the choice must be explained, particularly where the board 
24 A-0511-19

rejects the testimony of facially reasonable witnesses." Bd. of Educ. v. Zoning 

Bd., 409 N.J. Super. 389, 434-35 (App. Div. 2009). 

As noted, aside from identifying the experts who testified at the 

hearings, the resolution did not summarize their testimony and made no 

credibility determinations. Staigar's testimony stands in direct conflict with 

Dean's testimony, and the opinions of the Board's planner and Paterson's city 

engineer. The Board did not resolve the conflicting testimony. The 

resolution did not specifically reject Dean's testimony, nor did it state that 

Staigar's testimony was more persuasive. It also did not attempt to reconcile 

the conflicting testimony; instead, it merely made conclusory statements such 

as "[t]he applicant has provided testimony to the Board's satisfaction with 

regard to these issues[,]" without explaining what testimony it relied upon to 

approve the application, or why. While the approval of the application 

indicates the Board chose to accept Staigar's opinion over Dean's opinion, it is 

not clear why it chose to do so. Because the Board did not explain its choice, 

Bd. of Educ., 409 N.J. Super. at 434-35, it made insufficient findings of fact to 

satisfy the requirements of N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super. 

at 332-33.

c. Finding of Facts and Conclusions of Law – Variance Application 
25 A-0511-19

An applicant for a variance "bears the burden of producing a 

preponderance of competent and credible evidence" to satisfy "the statutory

prerequisites for a variance, a burden which applies to both the positive and 

negative criteria." Menlo Park Plaza Assocs. v. Plan. Bd., 316 N.J. Super. 451, 

461 (App. Div. 1998). However, judicial review of the decision of a planning 

board to grant or deny a variance is limited. Bressman, 131 N.J. at 529. "A 

board's decision 'is presumptively valid, and is reversible only if arbitrary, 

capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of 

Adj., 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj., 127 N.J. 152, 166-

67 (1992)). We defer to the board's decision "if it is supported by the record 

and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of 

discretion." Ibid.

This deferential standard of review stems from the discretion vested in 

local bodies by the Legislature, and the recognition that local officials who are 

familiar with their community's characteristics and interests are best equipped 

to assess the merits of an application for development. Med. Ctr. at Princeton, 

343 N.J. Super. at 198. Because of their particular knowledge of local 

conditions, planning boards must be allowed wide latitude in the exercise of 

their delegated discretion. Kramer, 45 N.J. at 296. Therefore, "courts 
26 A-0511-19

ordinarily should not disturb the discretionary decisions of local boards that 

are supported by substantial evidence in the record and reflect a correct 

application of the relevant principles of land use law." Lang v. Zoning Bd. of 

Adjustment, 160 N.J. 41, 58-59 (1999). 

160 West sought a variance pursuant to N.J.S.A. 40:55D-70(c)(1) and 

(c)(2). To obtain a "hardship" variance under N.J.S.A. 40:55D-70(c)(1), an 

applicant must establish the following "positive" criteria:

Where: (a) by reason of exceptional narrowness, 

shallowness or shape of a specific piece of property, 

or (b) by reason of exceptional topographic conditions 

or physical features uniquely affecting a specific piece 

of property, or (c) by reason of an extraordinary and 

exceptional situation uniquely affecting a specific 

piece of property or the structures lawfully existing 

thereon, the strict application of any regulation 

pursuant to article 8 of this act would result in peculiar 

and exceptional practical difficulties to, or exceptional 

and undue hardship upon, the developer of such 

property . . . .

In addition to demonstrating the above "positive" criteria, N.J.S.A.

40:55D-70 requires an applicant for any variance to demonstrate the following 

"negative" criteria:

No variance or other relief may be granted under the 

terms of this section . . . without a showing that such 

variance or other relief can be granted without

substantial detriment to the public good and will not 
27 A-0511-19

substantially impair the intent and the purpose of the 

zone plan and zoning ordinance.

To obtain a "flexible" variance under N.J.S.A. 40:55D-70(c)(2), an 

applicant must establish the negative criteria, set forth above, and the 

following positive criteria:

[W]here in an application or appeal relating to a 

specific piece of property the purposes of this act . . . 

would be advanced by a deviation from the zoning 

ordinance requirements and the benefits of the 

deviation would substantially outweigh any detriment, 

grant a variance to allow departure from regulations 

pursuant to article 8 of this act . . . . 

The grant of relief under (c)(2) is not based on hardship. Green 

Meadows at Montville, LLC v. Plan. Bd., 329 N.J. Super. 12, 22 (App. Div. 

2000). Instead, it 

must be rooted in the purposes of zoning and planning 

itself and must advance the purposes of the [Municipal 

Land Use Law]. The grant must benefit the 

community in that it represents a better zoning 

alternative for the property[,] and may not be granted 

merely to advance the purposes of the owner. Thus, 

the focus in a c(2) case is not whether the current 

zoning ordinance creates a "hardship" on the owner 

warranting a relaxation of the standard, but on the 

characteristics of the land that present an opportunity 

for improved zoning and planning that will benefit the 

community. 

[Ketcherick v. Mountain Lakes Bd. of Adjustment, 

256 N.J. Super. 647, 657 (App. Div. 1992) (alterations 
28 A-0511-19

in original) (emphasis, citations, and internal 

quotations omitted).]

As previously noted, the resolution contained no summary of the 

testimony presented at the hearing, made no specific findings of fact as to any 

of the witnesses' testimony, and made no specific findings of credibility. 

Plaintiffs claim the resolution was inadequate because it did not contain 

independent findings of fact and conclusions of law, merely parroted the 

planner's report, and did not explain why it determined to grant the bulk 

variance. We agree.

The Board identified three variances necessary for 160 West's 

application: 1) a front yard setback 49.9 feet from West Broadway, when only 

five feet was permitted; 2) parking spaces of eight feet six inches wide, when 

nine feet was required; and 3) no curbed landscaping island of at least five 

percent of the parking area where a parking lot contains over twenty-five 

parking spaces.

As to the parking spaces, the resolution provided:

The applicant has not provided floor plans or building 

elevations. The on-site truck traffic circulation 

indicates that of the [forty-six] off-street parking 

spaces, which require a variance for being proposed at 

[eight] feet [six] inches and not the required [nine] 

feet, may need further reduction to account for adding

an on-site turnaround space, creating one or more cart 
29 A-0511-19

corral areas and six parking spaces that the tractortrailer will travel over and on. Additionally, a trash 

dumpster has not been located, which may take up one 

or more parking spaces. The applicant has provided 

testimony to the Board's satisfaction with regard to 

these issues.

However, the resolution does not identify the testimony or explain how the 

testimony satisfied the requirements for a variance.

As to the grant of all three variances requested, in general, the resolution 

provided as follows:

24. The granting of the subject site plan application 

and bulk variances will have no adverse impact 

upon noise, light, air, traffic, health, or safety in 

the community, nor will it impair the intent and 

purpose of the Master plan.

25. The Planning Board determined that the project 

will not have an adverse impact on the traffic in 

the community and that the traffic will operate 

safely and efficiently. The Planning Board based 

this determination on the experience and 

knowledge of the area of the board members and 

the credibility of the applicant's experts. The 

Passaic County Planning Board also issues a 

conditional approval, and the main potential traffic 

impacts are on West Broadway, a County road.

26. The proposed site plan and bulk variances will 

have no unusual impact upon the ultimate usage of 

the land.

27. Evidence presented by the applicant at the 

aforementioned public hearing shows that the 
30 A-0511-19

strict application of the city ordinances would 

present practical difficulties and undue hardship 

upon the development of this property, said 

difficulties being peculiar and exceptional to this 

property.

28. The applicant has further shown that the relief as 

requested could be granted without substantial 

detriment to the public good and said approvals 

would not impair the intent and purpose of the 

zoning ordinances of the City of Paterson.

29. All of the applicant's representations and 

stipulations made to the Planning Board in this 

application and at the said public hearing are 

regarded as true and accurate. The Planning Board 

has specifically relied upon the applicant's 

stipulations and representations in granting this 

approval. In the event that any of the applicant's 

stipulations or representations are inaccurate this 

approval shall be declared null and void.

As noted, the Board's resolution merely contained a conclusory 

recitation of the statutory language as support for its grant of the variances. It 

provided no summary of the testimony before the Board, nor did it provide an 

adequate explanation as to "why" the Board found that the (c)(1) and (c)(2) 

variance had been satisfied. As noted, mere conclusory recitation of the 

statutory language does not satisfy a land use board's responsibility. Loscalzo 

v. Pini, 228 N.J. Super. 291, 305 (App. Div. 1988). See also Morris Cnty. Fair 

Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 646 (Law Div. 1988) 
31 A-0511-19

(noting that resolution consisting almost entirely of quotations from experts' 

reports did not fulfill board's responsibility to make findings of fact and 

conclusions of law).

In addition, as in Smith, the resolution did not discuss the (c)(1) and 

(c)(2) variances in any detail. Moreover, the resolution did not address the 

reasons the Board found that 160 West had satisfied the positive and negative 

criteria under either the (c)(1) or (c)(2) variance; therefore, effective review is 

impossible. Witt v. Borough of Maywood, 328 N.J. Super. 343, 455 (App. 

Div. 2000). Accordingly, we hold that the trial court erred when it affirmed 

the Board's resolution because the resolution was inadequate as a matter of 

law.

Violation of the MV Code

Plaintiffs contend that the Board's approval was arbitrary, capricious, 

and unreasonable and should be reversed because the proposed traffic 

circulation plan, which requires delivery trucks to back up and block both 

lanes of traffic on West Broadway, would violate two sections of the MV 

Code: N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67. According to Riverview 

Towers, the trial judge's opinion "recognized the illegality of the proposed 

delivery plan" and "understood the Board's decision validated illegal conduct." 
32 A-0511-19

Riverview Towers argues that the Board's resolution is internally inconsistent 

"because it requires compliance with all laws while simultaneously approving 

the tractor-trailer delivery plan that will not comply with the State motor 

vehicle laws."

Plaintiffs also argue that Tubular Serv. Corp. v. Comm'r of State 

Highway Dep't of N.J., 77 N.J. Super. 556 (App. Div.), aff'd o.b., 40 N.J. 331 

(1963), supports their argument regarding the illegality of the traffic maneuver 

the Board approved. Memorial further argues that "[t]he supposed approval of 

160 West's traffic circulation proposal by the Passaic County Planning Board 

does not save the Board's approval." 

Appellate review of a trial court's conclusions of law is de novo, and we 

do not afford special deference to its interpretation of the law or the legal 

consequences that stem from its fact findings. Little v. KIA Motors Am., Inc., 

425 N.J. Super. 82, 90 (App. Div. 2012) (citing Manalapan Realty, LP v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Zaman v. Felton, 219 N.J. 

199, 216 (2014).

N.J.S.A. 39:4-56 provides: "No person shall drive or conduct a vehicle 

in such condition, so constructed or so loaded, as to be likely to cause delay in 

traffic or accident to man, beast or property." N.J.S.A. 39:4-67 provides: 
33 A-0511-19

No vehicle or street car shall be permitted by the 

owner or driver thereof to so occupy a street as to 

interfere with or interrupt the passage of other street 

cars or vehicles, nor shall the driver of a vehicle or 

street car drive such vehicle or street car into an 

intersection if preceding traffic prevents immediate 

clearance of the intersection.

First, Riverview Towers argue that the proposed traffic circulation plan 

would violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67, and that the trial court 

"recognized the illegality of the proposed delivery plan." The trial court's 

conclusion that "[i]t is clear that utilizing a WB-50 tractor-trailer as proposed 

would be violative of both statues" was supported by the record. Both the 

Board's planner and the City's engineer expressed concern about the safety and 

legality of the traffic circulation plan, and Riverview Towers' traffic expert 

specifically testified that the proposal involved illegal traffic maneuvers. 

The trial court's holding that the Board did not act arbitrarily, 

capriciously, or unreasonably in approving the application, knowing that 

violations of the MV Code would occur, does not follow logically. As the 

court acknowledged, approval of this application could result in numerous 

violations of the MV Code at the property. Such violations are contrary to the 

resolution, which specifically states that "[t]he applicant shall comply with all 

federal, state, and county laws, rules and regulations . . . ." Thus, the Board 
34 A-0511-19

acted arbitrarily, capriciously, and unreasonably when it approved an 

application that would violate the MV Code and contradicts the express 

language of the very resolution that approved the application. We reject the 

trial court's decision to uphold the resolution based upon the fact that "[t]he 

traffic plan adopted by . . . the Board has yet to violate the aforementioned 

statutes."

Next, plaintiffs argue that Tubular supports reversal in this case. 

Although not a land use case, we find it persuasive as it supports the argument 

that the proposed traffic circulation pattern violates the MV Code. In Tubular, 

the plaintiff sought a condemnation award as a result of the fact that the State 

had erected a barrier on Route 1 that interfered with the ability of tractortrailers to access plaintiff's property. 77 N.J. Super. at 558. The court noted 

that "plaintiff's case is premised upon interference with its previous unlawful 

practice of bringing its inbound trailer trucks, approaching on the westerly 

highway lanes, over onto the easterly or northbound lanes of the highway . . . 

to maneuver the vehicles into its building." Id. at 561. It found that the 

plaintiff's practice was contrary to N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67, 

which prohibited the use of the opposite lane of traffic. Ibid. 
35 A-0511-19

The court in Tubular determined that where "the action of the State 

complained of as impairing highway access to private property does not 

interfere with lawful means of access but only prevents vehicular access 

effected in a manner necessarily violative of reasonable highway safety 

statutes, no claim of compensable taking can be founded thereon." Id. at 562. 

It further noted, "[i]f plaintiff no longer has any suitable access to his property, 

this should be regarded . . . as attributable not to the entirely proper action of 

the [State] but to the unsuitable disposition of his facilities for his particular 

commercial needs and purposes." Id. at 565. 

Here, as in Tubular, the blocking of a public road to facilitate access 

onto private property would violate N.J.S.A. 39:4-56 and N.J.S.A. 39:4-67. 

160 West's decision to expand the pre-existing building into a much larger 

supermarket that would require larger tractor-trailer deliveries and failure to 

reconfigure the property or design a different traffic pattern, worsens, rather 

than cures, these violations.

Lastly, Memorial argues that "[t]he supposed approval of 160 West's 

traffic circulation proposal by the Passaic County Planning Board does not 

save the Board's approval." We agree.
36 A-0511-19

The Board's resolution states: "The applicant clarified that the Passaic 

County Planning Board approved the tractor-trailer maneuvering patterns"; 

however, the record contains no evidence as to what was actually submitted to 

the Passaic County Planning Board and, therefore, what it actually approved. 

Nevertheless, the Board was required to address the issue of safe ingress 

and egress onto the property as part of its site plan review. El Shaer, 249 N.J. 

Super. at 330. Concluding that the Passaic County Planning Board had already 

approved the tractor-trailer maneuvering patterns, without sufficient credible 

evidence, does not satisfy that obligation. Ibid. 

We conclude the trial court erred when it affirmed the resolution because 

the Board's approval was arbitrary, capricious, and unreasonable since 

compliance with the proposed traffic circulation pattern would violate the MV 

Code.

Lack of Evidence/Hearsay/Net Opinion

Riverview Towers urges us to reverse, contending the Board's approval 

was arbitrary, capricious, and unreasonable because it was not based on 

substantial credible evidence in the record and the Board relied on unsupported 

hearsay and net opinions from 160 West's traffic expert. Specifically, they 

argue that: (a) the Board ignored the testimony of its traffic expert, Dean, 
37 A-0511-19

without explanation; (b) the Board's approval was not based on substantial 

credible evidence in the record to support either the requested variances or the 

site plan; (c) Staigar's testimony relied on uncorroborated hearsay not 

otherwise substantiated in the record; and (d) Staigar's testimony was primarily 

a net opinion the Board should have rejected. These contentions have merit.

(a) Dean's Expert Testimony

First, Riverview Towers contends the Board improperly ignored Dean's 

"persuasive expert testimony . . . that the tractor-trailer delivery plan proposed 

was inherently unsafe and illegal as proposed." We agree.

As noted, aside from identifying the experts who testified at the 

hearings, the resolution does not provide a summary of their testimony, makes 

no credibility determinations, and does not indicate why the Board accepted 

Staigar's testimony over Dean's. For the reasons already expressed, these 

insufficient findings fail to satisfy the requirements of N.J.S.A. 40:55D-10, 

making our review impossible.

(b) Substantial Credible Evidence

Second, Riverview Towers contend that the Board's approval was 

arbitrary, capricious, and unreasonable because it was not based on substantial 

credible evidence in the record to support either the requested variances or the 
38 A-0511-19

site plan. Riverview Towers argue that 160 West failed to present sufficient 

proof of the positive criteria to satisfy the standards in N.J.S.A. 40:55D-70(c). 

Thus, 160 West "did not prove hardship or substantial public benefit from 

granting the variances," and the "Board skirted the safety issues because they 

like the use." This argument has merit.

The resolution did not discuss the (c)(1) and (c)(2) variances in any 

detail. Moreover, the resolution did not address the reasons the Board found 

that 160 West had satisfied the positive and negative criteria. The Board 

therefore made insufficient findings of fact to satisfy the requirements of 

N.J.S.A. 40:55D-10. N.Y. SMSA, 370 N.J. Super. at 332-33. 

(c) Hearsay Testimony

Third, Riverview Towers contend that Staigar's testimony improperly 

relied on uncorroborated hearsay not otherwise substantiated in the record. It 

argues that much of Staigar's testimony relied on conversations with the owner 

of the property about the number of expected deliveries, but there was 

"nothing in the record to substantiate that the representation is a fair estimate." 

Therefore, the Board's reliance on Staigar's unsupported hearsay testimony was 

arbitrary, capricious, and unreasonable. We agree.
39 A-0511-19

The Board was not bound by the Rules of Evidence. See N.J.S.A. 

40:55D-10(e) (declaring that "[t]echnical rules of evidence shall not be 

applicable to the hearing" of a municipal land use agency); Baghdikian v. Bd. 

of Adjustment, 247 N.J. Super. 45, 49 (App. Div. 1991) (stating that zoning 

board "cannot be equated with courts" and procedural safeguards employed in 

judicial proceedings should not be "imported wholesale" into proceedings 

before land use board). However, zoning boards cannot rely upon 

unsubstantiated allegations. Bd. of Educ., 409 N.J. Super. at 435. "[A] fact 

finding or a legal determination cannot be based on hearsay alone. Hearsay 

may be employed to corroborate competent proof, or competent proof may be 

supported or given added probative force by hearsay testimony." Ruroede v. 

Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013) (quoting Weston v. 

State, 60 N.J. 36, 51 (1972)). Thus, when such conclusions are based on 

hearsay, the court must ensure there is "'a residuum of legal and competent 

evidence in the record to support it.'" Ibid. (quoting Weston, 60 N.J. at 51). 

Staigar's testimony as to the number of anticipated deliveries to the 

property was admittedly hearsay – it was based entirely on his conversations 

with the property owner. Because there was no other evidence to substantiate 

Staigar's testimony on the number of deliveries, it is unclear whether his 
40 A-0511-19

testimony represented a fair estimate of the number of actual deliveries that 

could be expected at the property. Simply stated, Staigar's testimony regarding 

the number of deliveries was unsubstantiated hearsay. 

(d) Net Opinion

Last, Riverview Towers argue that the Board should have rejected 

Staigar's testimony regarding tractor-trailer deliveries not blocking both lanes 

of West Broadway as a net opinion. According to Riverview Towers, Staigar 

"had no support for this assertion[,]" and "[o]n cross-examination, he admitted 

he had no supporting documentation and that his opinion was based on his own 

analysis." Further, Staigar's opinion was contrary to 160 West's civil 

engineer's plan, which showed that the tractor-trailers would block both lanes 

of West Broadway. Staigar also "had no knowledge of what happened when 

the prior supermarket use was in operation years earlier, and whether the 

tractor-trailer deliveries . . . presented any problems." We agree that Staigar's 

testimony as to the traffic circulation plan was a net opinion.

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

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

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

(2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "Simply 
41 A-0511-19

put, the net opinion rule 'requires an expert to give the why and wherefore of 

his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186 

N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401

(App. Div. 2002)). See also Pomerantz Paper Corp. v. New Cmty. Corp., 207 

N.J. 344, 371-72 (2011) ("[A] trial court may not rely on expert testimony that 

lacks an appropriate factual foundation and fails to establish the existence of 

any standard about which the expert testified.").

The rules of evidence do not apply in administrative proceedings. 

N.J.R.E. 101(a)(3); see also N.J.S.A. 40:55D-10(e). Nonetheless, the policy of 

the net opinion rule has been applied in land use cases. New Brunswick 

Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 

(1999); Bd. of Educ., 409 N.J. Super. at 435. Indeed, zoning boards cannot 

rely upon unsubstantiated allegations, nor can it rely upon net opinions that are 

unsupported by any studies or data. Cell S. of N.J. v. Zoning Bd., 172 N.J. 75, 

88 (2002).

Staigar testified that, although the plans indicated that tractor-trailers

would have to cross into the opposing lane of traffic, he analyzed the traffic 

plan himself and disagreed. "[Trucks] may cross that centerline, the physical 

centerline of the road, but not into the opposing lane." However, he did not 
42 A-0511-19

provide an updated plan or any other report explaining his analysis. He did not 

give the "why" and "wherefore," or otherwise explain his analysis. He did not 

provide a foundation for his testimony. His testimony therefore amounted to a 

net opinion, Pierre, 221 N.J. at 53-54; Polzo, 196 N.J. at 583; Townsend, 186 

N.J. at 494, and the Board should have lent no weight to it. See Nextel of 

N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 43 

(App. Div. 2003) ("An expert opinion that is not factually supported is a net 

opinion or mere hypothesis to which no weight need be accorded.").

We further conclude the trial court erred by affirming the resolution 

because the Board's approval was arbitrary, capricious, and unreasonable since 

it was not based on substantial credible evidence in the record.

Variances Required by The Redevelopment Plan

Riverview Towers contend that the Board's approval was arbitrary, 

capricious, and unreasonable and should be reversed because 160 West did not 

apply for or obtain the necessary variances under the Redevelopment Plan. 

They argue that 160 West's application should have been evaluated under 

standards set forth in the Redevelopment Plan because "all the general zoning 

standards of the underlying C-2 (general commercial district) zone are 

superseded under the terms of the [Redevelopment] Plan." According to 
43 A-0511-19

Riverview Towers, 160 West's application "deviated from the Redevelopment 

Plan standard – thus requiring variances – that were never addressed or proven 

by 160 West or considered by the Board." "Even if some deviations are 

preexisting or are impractical to meet, [it was] 160 West's obligation to prove 

entitlement to a variance required by the [Redevelopment] Plan." 

We hold the trial court erred when it affirmed the Board's resolution 

because the Board's approval was arbitrary, capricious, and unreasonable since 

it failed to properly consider the requirements of the Redevelopment Plan. 

Planning boards have a duty to determine all variances required for a 

particular application. See O'Donnell v. Koch, 197 N.J. Super. 134, 143 (App. 

Div. 1984) (finding local zoning boards have a duty to take cognizance of what 

variances are required in connection with an application, even if no evidence 

was presented regarding variances and no variance was specifically requested).

Here, the Board acknowledged that the application was under the 

purview of the Redevelopment Plan. The Redevelopment Plan specifically 

provided:

The Area shall be redeveloped in accordance with the 

standards detailed in this Redevelopment Plan. The 

Plan supersedes the use, bulk, and design standard 

provisions of the Paterson Zoning Ordinance unless 

specifically referenced. Other standards and 

submission requirements relating to all zones in 
44 A-0511-19

Paterson not specifically enumerated within as 

detailed in the Zoning Ordinance shall apply.

Any deviation from standards of this Plan that result 

in a "d" variance pursuant to N.J.S.A. 40:50D-70d 

shall be addressed as an amendment to the Plan rather 

than via variance relief through the Paterson Zoning 

Board of Adjustment "C" variance relief pursuant to 

N.J.S.A. 40:55D-70c and design waivers may be 

addressed by the Planning Board through the 

development application process. All developments 

must be approved by the Planning Board and shall be 

submitted through the normal site plan and 

subdivision procedures as identified by N.J.S.A. 

40:55D, et seq.

Riverview Towers argues that the application deviated from the 

Redevelopment Plan, and the following required variances, which are in 

addition to the three variance we previously identified as improperly omitted:

1. Signage . . . shall be standardized so as to 

reduced visual clutter. 

2. Provisions shall be provided to separate 

pedestrian from vehicular traffic within lots.

3. Parking lots must be buffered from the public 

right-of-way with a minimum of three feet and 

the buffer shall contain walls between two and 

four feet in height and landscaping.

4. The commercial parking areas shall only be lit 

without spilling onto neighboring properties and 

the lighting should conform to existing 

standards for brightness and spillage. 
45 A-0511-19

5. Regarding landscaping, commercial parking lots 

coverage cannot exceed [eighty] percent, 

including at least [ten] percent of the lot 

landscape.

6. The parking lot must have one tree for every ten 

parking spaces, and the trees must provide 

shade.

7. At least fifty percent of the parking lot must be 

shaded within a [ten]-year growth period, and 

there are many other landscaping requirements 

not met by the application.

8. Parking lots with over [thirty] spaces must have 

a pedestrian walkway through the lot which 

must be of a different surface material and 

should be at least five feet wide.

9. Parking lots next to the public right-of-way 

must be buffered and segregated from the street 

with partition elements including fences, shrubs, 

raised paving that grades a level difference, and 

other methodologies. 

Riverview Towers' argument has merit. The Redevelopment Plan zoning 

regulations supersede the zoning regulation contained in the Paterson Zoning 

Ordinance. 160 West asserted that it complied with the number of parking 

spaces required under the Redevelopment Plan, which was fewer than what 

was mandated by the C-2 commercial zone standards. However, 160 West did 

not identify any other requirements under the Redevelopment Plan, and 
46 A-0511-19

therefore failed to request any other variances. The Board likewise failed to 

identify or consider any additional variances under the Redevelopment Plan. 

Even if the deviations were preexisting or impractical to meet, it was 160 

West's obligation to prove it was entitled to the necessary variances.

In its brief, the Board responds to Riverview Towers' argument as 

follows: "The appellant conveniently neglects to mention that the property 

was the subject of several applications over approximately [fifteen] years 

which, along with the subject application, addressed all of the issues that the 

appellant incorrectly states as part of the redevelopment plan." Even if the 

Board is correct, 160 West did not establish that the prior applications did, in 

fact, "address all of the issues" raised by Riverview Towers, which was its 

obligation. In fact, there was no substantive evidence presented that the prior 

applications sufficiently addressed those issues or the requirements of the 

Redevelopment Plan. Thus, the Board did not properly address the 

requirements of the Redevelopment Plan. 

We hold that the trial court erred when it affirmed the resolution because 

the Board's approval was arbitrary, capricious, and unreasonable since it failed 

to properly address the requirements of the Redevelopment Plan. 

Supplemental Expert Report
47 A-0511-19

Memorial contends that 160 West "poisoned" the record when, "[d]espite 

the express limitations of the trial court's remand order, 160 West chose to 

submit a supplemental expert report in direct violation of the order." As a 

result, the Board improperly considered Staigar's supplemental report. We 

conclude his argument has merit since it is clear from the Board's deliberations 

that they did review and consider the report in violation of the court's order. 

We therefore hold that the trial court erred by affirming the resolution because 

the Board's approval was arbitrary, capricious, and unreasonable since it 

considered evidence outside of the record.

"The factual determinations of the planning board are presumed to be 

valid and the exercise of its discretionary authority based on such 

determinations will not be overturned unless arbitrary, capricious or 

unreasonable." Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. 

Super. 552, 560 (App. Div. 2004). "[T]he law presumes that boards of 

adjustment and municipal governing bodies will act fairly and with proper 

motives and for valid reasons." Id. at 560-61 (quoting Kramer, 45 N.J. at 296). 

"The arbitrary and capricious standard is analogous to the substantial evidence 

standard." Rocky Hill Citizens for Responsible Growth v. Plan. Bd., 406 N.J. 

Super. 384, 411 (App. Div. 2009); see also Cell S. of N.J., 172 N.J. at 88-89. 
48 A-0511-19

Indeed, it is "essential that the [planning] board's actions be grounded in 

evidence in the record." Fallone Props., 369 N.J. Super. at 562.

Here, the Board acted improperly by considering Staigar's supplemental 

report. Indeed, the Board's counsel acknowledged that "[t]he court order 

specifically ruled . . . that [Dean would be] the only witness" at the remand 

hearing, and that "[t]here would be no other reports other than what was 

submitted last year on behalf of the applicant." However, Memorial correctly 

points out that the Board members reviewed, considered, and were influenced 

by Staigar's supplemental report.

At the December 19, 2018, remand hearing, Commissioner Brooks 

questioned Dean about his opinion and report:

My concern, and I guess my question would be to you, 

is that we've had to review now two traffic reports. 

When does your traffic report become more adequate 

than the other person's traffic report? Because in 

looking at all of this and being here when the Board 

made the decision, I'm kind of confused as to what's 

the validity . . . over and above the original and the 

other traffic report?

Commissioner Brooks also said: "My second question I think is the 

interpretation of the N.J.S.A. 39:4-67. Here again the details of what this 

means varies from one report to the other. I mean, I see where . . . Mr. Staigar 

has taken apart your interpretation." 
49 A-0511-19

The Board, or at the very least Commissioner Brooks, was improperly 

influenced by evidence outside of the record. Because it is impossible to 

ascertain the extent to which Staigar's supplemental report influenced the other 

Board members, we hold that the trial court erred when it affirmed the Board's 

resolution because the Board's approval was arbitrary, capricious, and 

unreasonable since it considered evidence outside of the record.

We recognize that boards have local knowledge of the community and 

this is the reason for our general deference. Jock v. Zoning Bd., 184 N.J. 562, 

597 (2005). However, a board's decision still must have a factually 

substantiated basis, which was not demonstrated here. Any arguments not 

specifically addressed lack sufficient merit to warrant discussion in a written 

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

Reversed.