SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4405-15T4

ROBINSON HOLLOWAY,

Plaintiff-Appellant/

Cross-Respondent,

v.

THE ZONING BOARD OF 

ADJUSTMENT OF THE CITY 

OF JERSEY CITY,

Defendant-Respondent,

and

BGT ENTERPRISES, LLC,

Defendant-Respondent/

Cross-Appellant.

_____________________________

Argued September 26, 2018 – Decided 

Before Judges Nugent and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3862-15.

NOT FOR PUBLICATION WITHOUT THE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.

October 30, 2019
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Cynthia Amelia Hadjiyannis argued the cause for 

appellant/cross-respondent.

Vincent J. La Paglia argued the cause for respondent.

Ira E. Weiner argued the cause for respondent/crossappellant (Beattie Padovano, LLC, attorneys; Ira E. 

Weiner, of counsel and on the briefs; Mariya Gonor, on 

the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Plaintiff, Robinson Holloway, appeals from a Law Division order that 

dismissed with prejudice her complaint in lieu of prerogative writs, in which she 

challenged defendant Zoning Board of Adjustment of the City of Jersey City's 

(Board) grant of a development application to defendant BGT Enterprises, LLC

(BGT). BGT cross-appeals from an earlier Law Division order that denied its

motion to dismiss plaintiff's prerogative writs action as untimely. For the 

reasons that follow, we affirm the trial court's dismissal of plaintiff's prerogative 

writs action. We dismiss the cross-appeal as moot.

I.

In February 2015, BGT filed a general development application for 

preliminary and final major site plan approval with the Board. Following a 

hearing in June of the same year, the Board approved the application by a five 
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to two vote. The Board memorialized its decision in a resolution it adopted on 

July 23, 2015. 

On September 14, 2015, plaintiff filed a complaint in lieu of prerogative 

writs in which she challenged the Board's approval of BGT's development 

application. BGT filed a motion to dismiss the complaint as untimely. The 

court denied the motion. Following further proceedings, the trial court 

determined the Board had not acted arbitrarily, capriciously, or unreasonably, 

and therefore dismissed the complaint with prejudice. These appeals followed.

BGT presented the testimony of five witnesses during the hearing on its 

development application. The Board's Planner also testified. Although 

numerous members of the public spoke following BGT's presentation, no one 

presented any witnesses to refute the testimony and opinions of BGT's experts. 

BGT presented the following evidence.

The subject of BGT'S development application is designated on the City 

of Jersey City Tax Map as Block 9901, Lots 7, 8, 9 and 10 (the Property). 

Located on the northwest corner of the intersection of Newark Avenue and 

Brunswick Street, in the Neighborhood Commercial (NC) zoning district, the 

vacant, oddly shaped property, consisting of 9,019 square feet, was once used 

as a service station, a use no longer permitted. The NC Zone permits, among 
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other uses, retail sales on the ground floor and residential apartments above the 

first floor. The property has 110 feet of frontage along Brunswick Street and 

166 feet of frontage along Newark Avenue. Under the applicable zoning 

ordinance definition, Brunswick Street is the front property line and Newark 

Avenue a side property line. 

The purpose of the NC zoning district, according to the applicable 

ordinance, "is to recognize the existence and importance of neighborhood 

business districts and promote continued efforts to strengthen and revitalize 

them through public-private partnerships." The section describing commercial 

building height consists of two subparts. The first limits buildings to "[f]our 

stories from grade where on-site parking is not required. (See Parking standards 

for NC uses); five stories from grade where on-site parking is required 

regardless of whether parking level is below, at, or above grade." The second 

sub-section provides that "[m]inimum floor to ceiling height shall be nine feet 

for all floors except those devoted to parking; maximum floor to ceiling height 

for residential floors shall be twelve . . . feet." 

BGT proposed to develop the Property with a seven-story mixed-use 

building consisting of six stories for fifty residential dwelling units over a 

ground floor containing 4,895 square feet of commercial space. The proposed 
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development also included a residential lobby, bicycle parking for thirty 

bicycles, and parking for three "Zipcars." A roof deck and an amenity room 

were also proposed on the building's roof for the use of its occupants. To build 

its project, BGT required a height variance as well as variances for rear yard 

setback, parking, and commercial signage. 

BGT presented the following witnesses to establish that it met the criteria 

for the required variances. William J. Groeling, a licensed site remediation 

professional, explained that his company's environmental investigation revealed 

that two underground storage tanks, a 550-gallon heating oil tank and a 550-

gallon waste oil tank, remained under the Property's surface and had to be 

removed. Excessive amounts of benzene, lead, and tetrachloroethylene 

contaminated the subsurface soil and groundwater. To remediate the site, BGT 

proposed to remove approximately 350 tons of contaminated soil, replace it with 

certified uncontaminated soil, and monitor the groundwater. According to 

Groeling, the groundwater would likely clean itself up once the contamination 

from the soil was removed. In his opinion, the soil was the source of 

contamination of the groundwater. 

In addition, BGT proposed to include a vapor barrier. Groeling estimated 

that the cost of remediation was between $200,000 and $250,000, at minimum. 
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The final cost could increase because no one could predict the cost with certainty 

until the excavation and remedial work commenced. 

Rodney Simon, who conducted a geotechnical investigation, including 

soil borings to approximately ninety feet, explained that the soil conditions were 

so poor "that a deep-foundation system [was] necessary. Piles [were] necessary 

on the property." Simon explained the technical aspects of the soil and his 

investigation, including why the soil conditions would not permit a typical 

"shallow foundation type," consisting of reinforced concrete footings bearing 

directly on the ground with a minimum amount of steel reinforcement. Because 

a "deep" foundation would be required, the cost of the foundation for the 

proposed project would be significantly greater than a project built on a 

"shallow" foundation. 

BGT's "expert in architecture," Anthony Vandermark, testified the

anticipated foundation costs would exceed one million dollars. Vandermark also 

explained the architectural aesthetics of the building. He explained that the six 

residential floors would be constructed "at the minimum [nine] foot floor to 

ceiling and the commercial level [would be constructed] at [fourteen] foot floor 

to ceiling." He also explained there would be fifty residential units: forty-one 

one-bedroom units, twenty-nine of which would have "den space," and nine 
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units with either two or three bedrooms. BGT proposed 140 square feet of 

signage. Vandermark testified he believed the proposed signage would decrease 

"depending on how many actual commercial tenants are going to occupy the 

unit." 

BGT's principal testified BGT had entered into a thirty-five year lease, 

twenty-five years with two five-year options, for a nearby parking lot. The

leased parking would permit twenty occupants to park from 7:00 p.m. to 7:00 

a.m. 

BGT's final witness was Edward Kolling, an acknowledged expert in 

planning. Kolling explained that factors impacting the site included its highly 

irregular property shape, which made it difficult "in terms of laying out the 

building." The soil and environmental conditions added "multiple layers of 

hardship." In addition to the odd lot shape and environmental contamination, 

an adjacent building had balconies on the property line, thus creating "a zero lot 

line, a zero setback." 

Kolling testified that the elimination of a non-conforming use, albeit 

abandoned, could be viewed as a benefit to the community because it advances 

the purposes of zoning and the intent of the current zone plan. He explained 

that although the service station had been vacant a long time, it was an eyesore 
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in the community. BGT's proposed remediation of the environmental 

contamination also provided a community benefit and advanced the purposes of 

zoning. 

Next, Kolling addressed the variances. He noted the proposed uses were 

permitted in the NC Zone. He opined that the avoidance of a severe impact to 

the soft soils, remediation of environmental conditions, a design which included 

"a light well," and the shape of the property, all supported the height variance. 

Conceding the increased height also increased density and intensity of 

development, these factors "support[ed] the undue hardships and the extreme 

economic conditions that impact[ed] this property in terms of being able to 

develop it." 

Kolling noted the added height also could be supported by the building's 

larger size, more than 9,000 square feet. Because the property was a corner 

location, it had street frontage of 110 and 160 feet, or 270 total feet of street 

frontage, "which allows air and light to penetrate it." Such air and light 

penetration would benefit not only the proposed project, but the adjacent 

structure as well. 

Kolling noted that the building would not be unique in terms of its height. 

A short distance to the west, two buildings were approved "on either side of 
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Newark Avenue" as twelve-story buildings. Not far to the east, there existed a 

six-story building. Consequently, approving the variance would not result in

any substantial detriment to the intent of the zone plan or to the general welfare. 

Further, according to Kolling, the height of the building would be 

mitigated by the project being "a corner property, [and] also by the step-back of 

the upper floor and the way the architect has treated that in terms of materials. 

There are actually two-step backs on the western side of the property as it 

adjoins lot 11." 

In summary, Kolling concluded the height variance could be granted "in 

terms of the extreme hardships facing this property and the fact that this property 

[could] accommodate the height" without substantial detriment or impact on 

either the general welfare or to the zone plan.

Turning to the rear yard variance, Kolling explained the rear yard runs 

perpendicular to Newark Avenue. In actuality, it 

serves as a side property line of lot 11. So having this

property adjoin the side of the property of lot 11 would 

be appropriate because you would end up with a 

continuous streetscape and street frontage rather than 

gaps, which you don't have in any neighborhoodcommercial districts, whether it be Newark Avenue 

commercial or Central Avenue or west side.
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Kolling added that maintaining the streetscape was a better approach to urban

design and its benefits would outweigh any detriment.

Acknowledging the zone required the project to have fifty parking spaces, 

Kolling noted that because of the Property's configuration and its narrowness in 

certain locations, it could not support parking without completely decimating

the commercial ground floor. Because the purpose of the NC Zone was to 

encourage commercial activity and street activity, granting the parking variance 

would promote the purposes of zoning as well as the zone plan and would 

contribute to the vitality of Newark Avenue. The latter factor, in Kolling's 

opinion, contributed to the public good. Kolling added the benefits of granting 

the parking variance would outweigh any detriments. 

Kolling also testified that the impact of the parking was further mitigated 

by the "Zipcar-like or style facility that would be provided. Those types of cars 

are sometimes considered to substitute for anywhere from five to seven to eight 

parking spaces." Kolling explained that "not having to have a car, those Zipcars 

are available to a larger population. And it would not only be available to 

residents of this building, but to the general neighborhood." Kolling considered 

this circumstance as additional mitigation. He opined that the additional signage 

sought was warranted to help support commercial activity. 
11 A-4405-15T4

The Board asked Senior Board planner Matthew Ward to explain his 

report on the application. The report was admitted into evidence. Ward noted 

the difficulties in developing the site, from its irregular dimensions to soil 

contamination. He asserted, however, that the requested variances would 

advance the purpose of the NC Zone, and promote "continued efforts to 

strengthen and revitalize" the area. Ward added that a variance for parking 

would also benefit and help restore the property. 

Based on BGT's presentation, the Board granted its development 

application. In its memorializing resolution, the Board found the property 

particularly well suited for the type of mixed-use 

structure proposed and well suited to support the 

proposed height and stories without any substantial 

detrimental impacts because of the large size or the lot, 

its corner location and orientation along Newark 

Avenue, the soil conditions affecting the property, the 

design of the building, and the character of the area. 

The Board noted that the actual height of the building was consistent with 

"what is permitted by the NC Zone for similar or alternative permitted uses in 

the NC Zone." The Board concluded the proposed development met the intent 

and purpose of the zone plan.

The Board found that the environmental clean-up and condition of the 

soils made it "impractical to construct a smaller mixed-use commercial building 
12 A-4405-15T4

from a practical structural perspective and results in a hardship in the 

development of this property." The Board determined that granting the 

variances and approving the project would promote the Municipal Land Use 

Law in five ways. First, granting the variances would guide the appropriate use 

and development of the property as a mixed-use building in a NC Zone, in 

keeping with the character of the area and by removing an unsightly vacant and 

non-conforming service station that had become a blight on the neighborhood.

Thus, the public health and safety would be promoted through environmental 

remediation at the site. 

Second, granting the variances would support the goal of providing 

adequate light and air through the provision of a 425 square foot open space on 

each of the upper stories, in order to accommodate the balconies constructed on 

the adjoining building along the common property line.

Third, granting the variances would provide sufficient space in an 

appropriate location for types of residential and commercial uses according to 

their environmental requirements. 

Fourth, granting the variances would promote a desirable visual 

environment through removal of an unsightly, vacant service station and its 

replacement with an attractive mixed-use structure.
13 A-4405-15T4

Last, granting the variances would help shape development of the land 

with a view of the cost of such development and provide for the most efficient 

use of the land. 

The Board was satisfied that granting the variances would not result in 

any substantial detriments to the public good or general welfare. The members 

arrived at this conclusion because Newark Avenue is a "mixed-use 

commercial/residential area and the proposed building is consistent with the 

character of the area, and will provide a positive impact on the area." In this 

regard, the Board reiterated that the development would remove a vacant, 

abandoned service station building that was an eyesore and a blighting influence 

on the area. The Board also repeated the benefit of environmental "mitigation." 

As to parking, the Board concluded there would be no substantial 

detriment because any substantial impacts would be mitigated by the provision 

for the Zipcars and the parking lease. Concluding that BGT satisfied both the 

positive and negative criteria for the variances, the Board granted BGT's

development application. 

II.

Plaintiff argues the Board misapplied the criteria under N.J.S.A. 40:55D70(d)(6) when it granted the height variance based on financial hardship. 
14 A-4405-15T4

Plaintiff notes the Board made no finding that a conforming structure could not 

be constructed. Instead, the Board emphasized the considerable costs BGT 

would be required to incur to remediate the soil contamination and build the 

proposed structure on a "deep" foundation. Plaintiff contends with respect to

the Board's finding "that due to soil conditions construction of a conforming 

structure would be 'impractical[,]' . . . the word impractical should be read to 

mean more costly." Plaintiff adds that the evidence BGT presented to the Board, 

specifically its chart entitled "Stories vs. Foundation Cost Comparison," 

establishes "that a conforming [five]-story building can be constructed, but that 

it would not be as profitable as a [seven]-story building."

In addition, plaintiff argues that when a developer is aware of site 

conditions when the developer purchases land, the conditions and resulting costs 

cannot be considered a hardship. In short, plaintiff argues that a conforming 

structure could have been built and been profitable, albeit less profitable than a 

seven-story building.

Plaintiff next contends the trial court's affirmance of the Board's decision 

is unsupported by the record. Moreover, the Board failed to take into 

consideration the surrounding neighborhood and the purpose of the height 

restriction in the NC zoning district.
15 A-4405-15T4

BGT responds that the Board's resolution was supported by substantial 

evidence in the record. In its cross-appeal, BGT argues the trial court erred 

when it permitted plaintiff to pursue an untimely filed complaint. 

The Board, like BGT, argues that BGT satisfied the positive and negative 

criteria for a height variance. The Board also agrees with BGT that the trial 

court should have dismissed plaintiff's complaint as untimely.

In response to BGT's cross-appeal, plaintiff argues that the trial court 

properly determined the accrual date for her cause of action, and, alternatively, 

that expanding the time for filing a prerogative writs action was an appropriate 

exercise of discretion. BGT disputes plaintiff's arguments.

III.

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

provides that a board of adjustment shall have the power to:

In particular cases for special reasons, grant a variance 

to allow departure from regulations pursuant to article 

8 [C.40:55D-62 et seq.] of this act to permit: (1) a use 

or principal structure in a district restricted against such 

use or principal structure, (2) an expansion of a 

nonconforming use, (3) deviation from a specification 

or standard pursuant to section 54 of P.L.1975, c.291 

(C.40:55D-67) pertaining solely to a conditional use, 

(4) an increase in the permitted floor area ratio as 

defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), 

(5) an increase in the permitted density as defined in 

section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as 
16 A-4405-15T4

applied to the required lot area for a lot or lots for 

detached one or two dwelling unit buildings, which lot 

or lots are either an isolated undersized lot or lots 

resulting from a minor subdivision or (6) a height of a 

principal structure which exceeds by 10 feet or 10% the 

maximum height permitted in the district for a principal 

structure. A variance under this subsection shall be 

granted only by affirmative vote of at least five 

members, in the case of a municipal board, or twothirds of the full authorized membership, in the case of 

a regional board, pursuant to article 10 [C.40:55D-77 et 

seq.] of this act.

[N.J.S.A. 40:55D-70(d).]

However, 

No variance or other relief may be granted under the 

terms of this section, including a variance or other relief 

involving an inherently beneficial use, without a 

showing that such variance or other relief can be 

granted without substantial detriment to the public good 

and will not substantially impair the intent and the 

purpose of the zone plan and zoning ordinance.

[Ibid.]

Thus, generally, an applicant for a (d) variance must show "special 

reasons," the statute's positive criteria, and that the variance can be granted 

"without substantial detriment to the public good and will not substantially 

impair the intent and the purpose of the zone plan," the statute's negative criteria. 

Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 48-49 (App. Div. 

2004) (quoting N.J.S.A. 40:55D-70(d). "The standard for establishing special 
17 A-4405-15T4

reasons depends on the type of (d) variance at issue." Id. at 49 (citing Cell S. of 

N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 83 (2002)). 

For a (d)(6) or height variance, an applicant can establish the positive 

criteria by demonstrating undue hardship, that is, "the property for which the 

variance is sought cannot reasonably accommodate a structure that conforms to, 

or only slightly exceeds, the height permitted by the ordinance. Stated 

differently, the applicant for a (d)(6) variance on grounds of hardship must show 

that the height restriction in effect prohibits utilization of the property for a 

conforming structure." Id. at 51. Alternatively, an applicant can demonstrate

that the proposed structure's height will not offend the zoning ordinance's 

purpose for the height restriction and will "nonetheless be consistent with the 

surrounding neighborhood." Id. at 53. A zoning board must also "consider the 

effect of the proposed height variance on the surrounding municipalities affected 

by the decision." Jacoby v. Zoning Bd. of Adjustment, 442 N.J. Super. 450, 466 

(App. Div. 2015).

A.

When reviewing a zoning board's decision to grant or deny a development 

application, we apply the same principles as the Law Division. D. Lobi Enters., 

Inc. v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009)). A 
18 A-4405-15T4

"board's decisions enjoy a presumption of validity, and a court may not 

substitute its judgment for that of the board unless there has been a clear abuse 

of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing Cell S. 

of N.J., 172 N.J. at 81). "Even if we have some doubt about the wisdom of a 

board's action or some part of it, we may not overturn its decision absent an 

abuse of discretion." D. Lobi Enters., 408 N.J. Super. at 360 (citing Medici v. 

BPR Co., 107 N.J. 1, 15 (1987)). That is so because such boards "are composed 

of local citizens who are far more familiar with the municipality's characteristics 

and interests and therefore uniquely equipped to resolve such controversies." 

First Montclair Partner, L.P. v. Herod Redevelopment I, LLC, 381 N.J. Super. 

298, 302 (App. Div. 2005). Boards have "peculiar knowledge of local 

conditions [and] must be allowed wide latitude in their delegated discretion." 

Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005).

The burden is on the party challenging a board's decision to show the 

decision was arbitrary, capricious, or unreasonable. Ten Stary Dom P'ship v. 

Mauro, 216 N.J. 16, 33 (2013). "A board acts arbitrarily, capriciously, or 

unreasonably if its findings of fact in support of a grant or denial of a variance 

are not supported by the record, [Smart SMR of N.Y., Inc. v. Bd. of Adjustment, 

152 N.J. 309, 327 (1998)], or if it usurps power reserved to the municipal 
19 A-4405-15T4

governing body or another duly authorized municipal official, Leimann v. Bd. 

of Adjustment, 9 N.J. 336, 340 (1952)." Ibid. Moreover, we review a board's 

determinations of questions of law de novo. Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

B.

Applying the legal principles applicable to height variances and our 

standard of review, we conclude plaintiff has not proved the Board's decision 

was arbitrary, capricious, or unreasonable.

As the Board determined, though perhaps not in the precise language of 

relevant cases, BGT demonstrated the building's proposed increased height did 

not offend the purpose of the zone's height restriction. The Board found that the 

goal of providing adequate light and air had been satisfied by the proposed 

building's inclusion of 425 square feet of open space in each of the upper stories, 

in order to accommodate the balconies constructed on the adjoining building 

along the common property line. Moreover, the Board determined the proposed 

structure was well suited to support the proposed height and additional stories 

because of the large lot size, its corner location with frontage along two streets, 

and its orientation along Newark Avenue.
20 A-4405-15T4

The Board also determined that the actual height of the building was 

consistent with heights permitted by the NC Zone for similar or alternative 

permitted uses. As BGT's planning expert pointed out, two development 

applications in the vicinity of BGT's proposed project had been approved for 

development of twelve-story structures.

In addition to the foregoing special reasons, which satisfied the enhanced 

positive criteria for a (d)(6) variance, the Board found BGT met the positive 

criteria for special reasons defined by the general purposes of the MLUL, 

codified in N.J.S.A. 40:55D-2. See Burbridge v. Twp. of Mine Hill, 117 N.J. 

376, 386 (1990); Medici v. BPR Co., 107 N.J. at 18. The Board determined the 

project would result in the removal of the remnants of an unsightly, nonconforming service station that had become a blight to the neighborhood, as well 

as environmental contamination at this site, thus promoting the public health 

and safety. In addition, the Board determined the project would provide 

adequate light and air, and sufficient space in an appropriate location for 

residential and commercial uses. The project itself would promote a desirable 

visual environment not only through the removal of an unsightly, vacated 

service station, but also by its replacement with an attractive mixed-use 
21 A-4405-15T4

structure. Last, the Board determined the project would provide the most 

efficient use of the land.

Concerning the negative criteria, the Board determined the variances for 

the proposed structure could be granted without substantial detriment to the 

public good and would not substantially impair the intent and purpose of the 

zone plan and zoning ordinance. In that regard, the Board noted that Newark 

Avenue was a mixed-use, commercial and residential area, and thus BGT's 

proposed project was consistent with the area's character. The Board also 

determined the structure would provide a positive impact on the area. The NC 

section of the municipal zoning ordinance established the purpose of the district 

was "to recognize the existence and importance of neighborhood business 

districts and promote continued efforts to strengthen and revitalize them through 

public-private partnerships." The Board determined the project would serve this 

purpose.

Moreover, the project was consistent with the surrounding neighborhood 

and with the surrounding area. As BGT's planner had pointed out during his 

testimony, two other buildings in the vicinity were approved for twelve stories.

The Board's determination was amply supported by the record and did not 

usurp the zoning power reserved to the municipal governing body. Thus, the 
22 A-4405-15T4

Board's decision to approve BGT's development application was not arbitrary, 

capricious, or unreasonable.

Citing language in the Board's resolution that site soil conditions made 

construction of a conforming structure impractical, plaintiff argues the proofs 

BGT presented showed only that a conforming structure would be less 

profitable, not impractical; an inadequate reason for granting a (d)(6) variance. 

Plaintiff also argues the Board made no finding that the height restriction 

effectively prohibited utilization of the property for a non-conforming structure, 

an omission fatal to its grant of BGT's development application. Plaintiff

contends that if a developer is aware of site conditions at the time it purchases 

property to develop—as BGT was here—the resulting cost cannot be considered 

a hardship. 

In view of our determination that BGT presented evidence that satisfied 

the alternative criteria for a (d)(6) variance, and that the Board's determination 

was thus supported by the record, we need not address whether soil conditions 

that render construction of a building below a specified number of stories

economically impractical establish the positive criteria for a (d)(6) variance, or 

whether BGT's proofs established such impracticality.
23 A-4405-15T4

Plaintiff's remaining arguments—the Board failed to properly apply the 

standard for a (d)(6) variance to the surrounding neighborhood, the purpose of 

the zone's height restriction is offended, and the Board's decision is not 

supported by the record because it is based on a hardship—are without sufficient 

merit to warrant further discussion. R. 2:11-3(e)(1)(E). 

In view of our disposition of plaintiff's appeal, BGT's cross-appeal is 

moot.

Affirmed.