SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3387-19

BARBARA CAMACHO,

NATHALIE COOK,

CHERYL MORRISON,

JOANNE GORMAN, 

CURTIS ALLEN,

JOHN ALLEN, and

SHEILA MUHAMMED,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY 

ZONING BOARD OF 

ADJUSTMENT and INN

AT GARFIELD, LLC,

Defendants-Respondents.

__________________________

Argued June 2, 2021 — Decided June 17, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3742-19.

Robert F. Simon argued the cause for appellants 

(Herold Law, PA, attorneys; Robert F. Simon, of 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-3387-19

counsel and on the briefs; George W. Crimmins III and 

Cara A. Murphy, on the briefs).

Vincent J. LaPaglia, Esq. argued the cause for 

respondent City of Jersey City Zoning Board of 

Adjustment (The Law Offices of Vincent J. LaPaglia, 

Esq., attorneys; Vincent J. LaPaglia and Genevieve A. 

LaPaglia, on the brief).

Gregory J. Castano, Jr. argued the cause for respondent 

Inn at Garfield, LLC (Castano Quigley, LLC, attorneys; 

Gregory J. Castano, Jr., on the brief).

PER CURIAM

Plaintiffs Barbara Camacho, Nathalie Cook, Cheryl Morrison, Joanne 

Gorman, Curtis Allen, John Allen, and Sheila Muhammed appeal from an April 

3, 2020 order dismissing their complaint in lieu of prerogative writs, which 

challenged an application for final site plan approval by defendant Inn at 

Garfield, LLC (Garfield) and a resolution by defendant City of Jersey City 

Zoning Board of Adjustment (Board) approving the application. We affirm.

The Board held a hearing over the course of two days, heard testimony 

from expert witnesses presented by Garfield and plaintiffs, and heard from 

members of the community in favor of and against the project. We take the 

following facts from the record. 

Garfield applied to build a four-story twelve-unit dwelling across three 

contiguous vacant lots located on the corner of Garfield and Pearsall Avenues 
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within an R-1 Zone in Jersey City. The R-1 Zone allows for one- and two-family 

homes. The proposed building included a lobby, a courtyard open to the public,

and on-site parking for each unit on the ground floor. The remaining three 

stories were for the dwellings, which included a roof-top deck and green roof. 

Garfield sought variances pursuant to N.J.S.A. 40:55D-70(c) and (d) for the: 

number of units; height of the units; side yard setback; rear yard setback; front 

yard setback; parking space dimensions; and building coverage for the property. 

Garfield's application addressed the "positive" and "negative" criterion, 

N.J.S.A. 40:55D-70(c)(1) and N.J.S.A. 40:55D-70(d), arguing the benefits of 

the proposed project substantially outweighed potential detriments because it 

would significantly improve the vacant property. Garfield also argued granting 

the variance would advance the purposes of the Municipal Land Use Law 

(MLUL), N.J.S.A. 40:55D-1 to -63, and promote the general welfare within the 

meaning of N.J.S.A. 40:55D-2(a) because "[t]he project is proposing a density 

that is consistent with other multi-family buildings located along Garfield 

Avenue, and therefore promotes the establishment of appropriate population 

densities and concentrations that will contribute to the well-being of persons, 

neighborhoods, communities; consistent with N.J.S.A. 40:55D-2(e)." 
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Regarding the use variance, Garfield noted the property was particularly 

well suited to accommodate the building because "[t]he subject property is an 

oversized, corner lot with a total of 6,630 square feet, which is significantly 

larger than the 2,500 square foot lot size required in the R-1 District." It also 

noted "[t]he proposed multi-family building is consistent with other multifamily buildings located along Garfield Avenue, which is a major thoroughfare 

in Jersey City, and in the surrounding area." 

Regarding the height variance, Garfield stated:

the subject property can accommodate the increased 

height of the proposed building and is consistent with 

other buildings within the surrounding area. From an 

urban design standpoint, the property location, on a 

corner, supports the increased height. Furthermore, the 

proposed project provides adequate setbacks from the 

adjacent residential structures, preserving light and air. 

The proposed project provides an approximate [three]-

foot setback from the adjacent structure to the west 

along Garfield Avenue, which is itself built to the lot 

line. From the south, along Pearsall Avenue, the 

building is set back [twenty] feet from the adjacent 

structure. In total, the proposed building will cover 

approximately [sixty percent] of the property. 

Garfield argued its building "will promote a more desirable visual 

environment through creative development techniques . . . by [re]placing the 

vacant lot with a new modern building." It noted the project advanced the Jersey 

City Master Plan "by developing a currently vacant lot, which will provide [a] 
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unique, attractive, and high-quality residential area that will serve existing 

residents and attract new residents with a wide range of housing and life-style 

choice." 

Notice of the hearing on Garfield's application was issued on May 13, 

2019, and included details of the proposed project and variances sought. In 

relevant part, the notice stated: "The purpose of this application is to . . . 

[c]onstruct a new four . . . story, twelve . . . dwelling unit building with twelve 

. . . parking spaces across three . . . lots in the R-1 zone." The notice also stated 

"[a]ny person interested in this application will have the opportunity to address 

the Board at the meeting of May 23, 2019 at 6:30 p.m. in the Council Chambers 

of City Hall . . . ." 

The Board held the first hearing on May 23, 2019, during which Garfield 

presented testimony from an architect and a professional planner. The 

architect's testimony addressed each facet of the application, including setbacks, 

ingress and egress from the property, tree plantings on the ground level, unit 

height, parking, utilities and fire safety, apartment lay outs, and building façade 

and exterior construction materials. 

The planner's testimony addressed the zoning aspects and variances 

needed for the project and was equally comprehensive. The planner explained 
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a (d)(1) use variance was necessary since multifamily use was not permitted in 

the zone where the property is located, as well as a (d)(6) building height 

variance since the proposed building height exceeded the maximum permitted 

height in the zone. He testified the purpose of the R-1 Zone is "to encourage 

infill residential development." He noted the corner lot was a vacant property

and over the years served as a dumping ground for "various garbage product[s]"

and development of the lot would eliminate the dumping problem.

The planner also addressed the density issue by pointing out similar 

structures in the neighborhood. He stated:

Currently this property is three lots that all front 

onto Garfield Avenue. In their own right, they're all 

undersized lots. So they would be entitled to make an 

application, but notwithstanding, an application for a 

conforming two-family unit would require substantial 

variances because of the undersized lots and it would 

likely need relief from this Board.

So what we've done on this application is 

consolidate that lot, or propose to consolidate that lot 

and provide a larger structure. 

Further north, on Garfield Avenue, just to orient 

the Board, there's a large . . . apartment building. This 

is a much older building. The brick on it is decades old. 

I don't know when it was built. This structure, four and 

a half stories, it has [forty-four] units. When you 

aggregate that to the acreage in terms of density, that's 

approximately 180 units an acre.
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Further south on this intersection of Winfield 

Avenue and Garfield, there's a building that contains 

five units with a density on that property of 100 units 

an acre.

There are other multifamily developments 

throughout this area that are approximately within this 

four-block radius that we've kind of evaluated. There 

are approximately [twenty-five] other multifamily 

buildings. They range in density from [twenty-five] 

units on the three-family, which would be considered a 

multifamily in this zone, all the way up to that 189 unit 

multifamily . . . building here. 

Putting in perspective, what's being proposed on 

this lot is a [twelve] unit building and the density on 

this size property, 6,600 square feet, is [seventy-nine] 

units an acre. So we're certainly within that threshold 

. . . on the low end of [twenty-five] all the way up to 

186. So when you're comparing apples to apples, this 

lot is appropriate for a [twelve] unit building. It's 

within that existing range of multifamily buildings 

within these four-block radius[es]. 

The planner also explained the onsite parking would offset any impacts on onstreet parking in the neighborhood and would reduce the number of curb cuts by 

having one garage entrance to the building. 

The planner testified the building was consistent with the Jersey City 

master plan because the architecture "harness[ed]" the aesthetics of other 

existing structures, is consistent with other multi-family dwellings in the city, 

and also met the diversity in housing envisioned by the master plan. He opined 
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the building was the "appropriate density for the site. It's a large enough 

size. . . . It's certainly not considered a high-rise building by Jersey City 

standards." In addition to the rooftop deck, he noted "the element of the 

courtyard in the rear . . . that will be . . . accessible . . . . It will provide for an 

amenity space not only for the tenants, but anyone who wants to come [to] sit 

and relax under the [shade] in a garden setting." 

The planner further testified as follows:

With respect to the [(d)(6)] height variance, 

obviously what we're proposing is a four-story structure 

with an overall roof height of . . . [forty three] feet. To 

put it in perspective, this Board may be aware that in 

[the] R-1 [zone], a three-story structure is permitted; 

what's being proposed is four. But the actual overall 

height . . . what's permitted . . . is [thirty nine] feet for 

a flat roof and [forty four] feet for a sloped roof. 

And I'm not trying to split hairs, but my point 

being is that it's well within reason of a consistent 

permitted building. Forty-three feet, in my opinion, for 

a four-story structure is an efficient use of the building 

height and it's consistent with other permitted uses in 

the area or other permitted building height in the area.

The adjacent multifamily structure to the north on 

Garfield Avenue [is a] four-and-a-half-story 

structure[;] we're actually less than that in building 

height when you compare it based on me counting 

brick. That's how I was able to estimate that building 

height.
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Addressing the setbacks, the planner explained a zero-foot setback would 

be appropriate because it would accommodate the parking by maximizing the 

ground floor parking area. Responding to neighborhood concerns, the planner 

explained the site plan includes a proposal for a stormwater detention system 

"that will be sized appropriately for the lot and the building to offset any sort of 

mitigation." Regarding the negative criteria, the planner testified in terms of the 

building mass

as the sun casts a shadow, most of the impact will be to 

the street and the intersection, which serves as a 

mitigating factor to the building mass. 

We provide enough separation from structures to 

mitigate and provide for light and air, so there's no 

substantial impact there. And this building will be 

designed to modern building code standards, so 

everything in the plan that the architect covered is 

appropriate and beneficial and future residents will not 

have any sort of impacts on their livelihood.

With respect to the second prong of the negative 

criteria, no substantial impairment of the zone plan, I 

want to recognize that this is an R-1 district that permits 

one- and two-family homes. But as I mentioned earlier 

and through our evaluation of this neighborhood, there 

are a number of other multifamily structures. This 

really does try to accomplish the goal of creating an 

infill residential project which will help preserve the 

integrity of the area and complete that block. So I do 

think there are advantages to this application and what's 

being proposed here that really try to advance the 
10 A-3387-19

purposes of zoning and advance the purposes of zoning 

and advance the goals and objectives of the R-1 district. 

Plaintiffs also presented testimony from a planner. The planner testified 

the proposed building "is a very difficult design, and the reason is there's too 

many units on the property. The applicant does not have anything close to the 

residential site improvement standards." He claimed the variances sought by 

Garfield did not justify constructing one building on three lots and that Garfield 

could have applied for (c) variances to build three single family dwellings on 

each of its three lots, which would have been more suitable. Plaintiffs' planner 

testified Garfield instead 

wants three [(d)] variances: A use that's not permitted 

in the zone, a height that is not permitted — and I would 

say it's both stories. The reason that the [MLUL] says 

you get a [(d)(6)] variance when you're [ten] percent or 

[ten] feet over, [is that ten] feet is a story. This is a full 

story above what is permitted. And this is a density 

variance also. The applicant has effectively much more 

density than is permitted by right.

So, in my opinion, there are no public purposes 

that are legitimately advanced by this. The applicant 

talks about the most appropriate use of land. Well, 

that's not something you make up. The zoning 

ordinance tells you what the most appropriate use of 

land and the master plan tells you what the most 

appropriate use of land is here and it's one- and twofamily dwellings.
11 A-3387-19

The applicant has to show particular suitability. 

This is a lot that is a composite of three lots. They can 

build three conforming uses on this property. That's not 

a hardship. That's what the zoning ordinance was 

looking for. What's appropriate by having a building 

that is too big, too dense?

The applicant talks about a [twenty]-foot rear 

yard. It's supposed to be [thirty-five] feet. Well, 

actually, it's [sixteen] feet in the rear yard because there 

are balconies on the back of the buildings. So we're 

going to have people now [sixteen] feet from the rear 

property line, which is supposed to be [thirty-five] feet.

. . . . 

When the application was presented, there's 

something like public space in the back. Well, you're

supposed to have public space and you're supposed to 

have it in proportion to the building coverage. That's 

one of the variances they want. Although the applicant 

is going to let, you know, tenants use the open space, 

the answer is that's fine except the applicant doesn't 

have enough. This is a regular shaped property. Again, 

it could be developed with three conforming uses. 

Maybe some [(c)] variances, but no [(d)] variances.

In terms of the negative criterion, . . . the building 

is too close to the front property lines. Clearly out of 

character with the area. The building is too tall. . . .

It is clearly substantially detrimental to the zone 

plan and zoning ordinance. Your master plan and your 

zoning ordinance are in sync. If you think that the 

Planning Board didn't know what the land use pattern 

was in the area, that's incorrect. This . . . neighborhood 

from 1912 on has largely stayed the way it is. This is 

an anomaly of the area. 
12 A-3387-19

In my opinion, there are no special reasons. The 

[(d)1] variance is the hardest variance to get. It's the 

[Medici1] standard where you have to show not only 

peculiar suitability, but you have to show why it's not 

detrimental to the public good or does not impair the 

zone plan and zoning ordinance by an enhanced burden 

of proof. You have to really go through the standards. 

I don't think the applicant has met those standards.

After testimony from plaintiffs' planner, members of the community asked 

questions about the application. Then the meeting was adjourned to June 27, 

2019. 

When the matter returned, the Board continued to hear testimony from 

community members regarding the building's effects on traffic and noise level, 

the public works system, garbage, and the building's proximity to other 

structures and the effects it would have on privacy. The Board also heard 

testimony from a community member who supported the project because it 

would occupy the vacant land and would "no longer [be] a drug spot." 

Garfield responded it would address the privacy concerns by re-orienting

the rooms in the building. Garfield also stated it would contain the building's 

garbage inside the building so as not to combine with garbage from neighboring 

properties and avoid encouraging rodents and other animals. 

1 Medici v. BPR Co., 107 N.J. 1 (1987).
13 A-3387-19

The Board passed a seventeen-page resolution in favor of the project and 

made the following findings of fact: 

17. The [a]pplication secures safety from fire, 

flood, panic and other natural man-made disasters in 

accordance with purpose B of the MLUL by proposing 

a detention system designed to collect all water runoff 

generated on-site as well as approximately green roof 

area and landscaping;

18. The [a]pplicant continues efforts to stabilize 

and upgrade residential neighborhoods and protects and 

preserves residential neighborhoods from intrusion by 

non-residential uses in accordance with the Land Use 

Objectives of the Jersey City Master Plan;

19. The overall site design mitigates issues 

related to the bulk standards for the R-1 Zone; 

20. The proposed use is suited to the [p]roperty 

because the site is considered oversized;

. . . . 

24. The overall site design mitigates issues 

related to the bulk standards for the R-1 Zone;

25. Garfield Avenue is more suitable for the 

proposed [seventy-nine] units per acre when compared 

to adjoining streets. 

26. The [a]pplicant studied below grade parking 

and determined it was not feasible and would reduce the 

number of parking spaces.

27. The [a]pplicant did not perform a formal 

shadow study because of the [p]roperty's location on 
14 A-3387-19

the block. Virtually all of the shadow cast from the 

building would be cast in the intersection. The sun rises 

in the east and Garfield Avenue itself will absorb much 

of the shadow. Later in the day as the sun sets in the 

west the shadow will be cast into Pearsall Avenue itself.

28. The proposed building height is marginally 

greater than [the] maximum permitted in the R-1 zone 

would be.

29. The [a]pplicant has agreed to reduce the floor 

to ceiling heights which would, in turn, reduce the 

height of the building to mitigate objector concerns.

30. The [a]pplicant has agreed to move the 

garbage storage inside of the building to mitigate 

objector concerns. 

31. The [a]pplicant has agreed to work with 

Division of Planning Staff on the façade design and 

elements to mitigate objector concerns.

32. The [a]pplicant has worked with the 

municipal water authority in designing this 

development. The [a]pplicant is expected to share the 

costs of infrastructure upgrades scheduled to begin in 

September 2019;

33. The [a]pplication would create a single curb 

cut on Pearsall Avenue. An as-of-right project would 

create three curbcuts on the busier Garfield Avenue.

34. The [a]pplication advances the general 

welfare and public good of . . . New Jersey and . . . 

Jersey City in accordance with purpose A of the MLUL 

by advancing the redevelopment of the site, providing 

one parking space per unit, providing green roof, 

stormwater detention system, bicycle parking spaces, 
15 A-3387-19

and providing ADA [(Americans with Disabilities 

Act)] compliant units; and 

35. The [a]pplication provides sufficient space 

in appropriate locations for a variety of uses in order to 

meet the needs of all New Jersey citizens in accordance 

with purpose G of the MLUL by providing spacious 

units that are ADA compliant and one parking space for 

each unit as well as outdoor community space; and

36. The [a]pplication promotes a desirable visual 

environment through creative development techniques 

and good civic design and arrangement in accordance 

with purpose I of the MLUL through the new 

construction of a twelve-unit, four-story brick building 

on a vacant oversized lot; and

37. The [a]pplication establishes appropriate 

population densities and concentrations that will 

contribute to the well-being of persons, neighborhoods 

and communities consistent with purpose E of the 

MLUL;

38. There are no substantial detriments to the 

public welfare. The proposed project involves the 

construction of an in-fill, multi-family residential 

development on a vacant parcel in a residential 

neighborhood. The proposed setbacks provide 

adequate light and air to adjacent structures. The new 

building which meets all current building codes, 

including egress, sprinklers, etc.

39. Granting the variances will likewise not 

result in a substantial detriment to the intent and 

purpose of the zone plan and zoning ordinance. The 

purposes of the R-1 District include "encouraging 

compatible in-fill development" and "preserving the 

integrity of residential neighborhoods." The proposed 
16 A-3387-19

use is consistent with, and promotes, the residential 

character of the neighborhood.

40. The proposed project advances the Jersey 

City Master Plan by developing a currently vacant lot, 

which will provide unique, attractive, and high-quality 

residential area that will serve existing residents and 

attract new residents with a wide range of housing and 

life-style choice. 

The Board approved the application for the (d) and (c) variances subject 

to certain conditions. Relevant to the issues raised on this appeal, the Board 

required Garfield to reduce the overall height of the building by two feet and 

relocate the trash room inside the building. 

Plaintiffs filed a complaint in lieu of prerogative writs challenging the 

resolution. They argued Garfield did not meet its burden of proof as to the (d) 

variance application, failed to obtain a (c) variance, and failed to meet minimum 

parking requirements. Plaintiffs also argued Garfield's experts had offered net 

opinions because they failed to conduct a shadow study and the Board erred in 

accepting their testimony and concluding the building's height was permitted. 

They also argued the Board's findings were not based on the evidence and there 

was inadequate notice to the public of the hearing. 

Judge Mary K. Costello issued a comprehensive written decision 

addressing each of plaintiffs' claims and entered an order dismissing the
17 A-3387-19

complaint. At the outset, the judge found Garfield had met its burden to show 

the project did not negatively impact the master plan and was not contrary to the 

zoning ordinance. She noted plaintiffs' expert relied on a map dating to 1912, 

which purported to show the character of the property and the surrounding 

neighborhood and that Garfield's lots had been unimproved. However, Garfield

proved the lots were previously occupied by two four-story multi-family

dwellings, one of which contained eight units and the other nine. 

The judge also noted the Board addressed and made findings regarding 

the positive criteria when it 

cited to the record and found that the development of 

the property would promote the general welfare by 

transforming vacant lots that had been attracting trash 

and drug-trafficking. (Finding #34). The Board found 

that the project would provide needed housing and 

would meet the parking requirements. (Finding #17). 

The Board also addressed the notion that the project 

would address environmental concerns such a water 

runoff and detention. (Finding #17). The Board cited 

favorable findings on population density and 

concentration. (Finding #37). The Board cited with 

favor the ADA-compliant units and outdoor community 

space. (Finding #35). 

In addition to these general findings, as to the 

issue of "particular suitability," the Board found that 

because each of the single lots is undersized, any 

development of any one of the lots would inevitably 

require Board action in the future. The merger of the 

three lots, and the proposed project design being 
18 A-3387-19

entirely residential, would not offend the master plan or 

the zoning ordinance, especially since there had been 

two multi-family buildings on the site previously. This 

precedent as well as the fact that the newly proposed 

project would have off-street parking was of particular 

note regarding site suitability. 

The judge found the Board also addressed the negative criteria. She noted 

the Board made specific findings regarding lack of 

detrimental impact on public welfare (Finding #38) and 

lack of detrimental impact on the master plan and 

zoning ordinance (Finding #39[ ]and #40). Nine 

specific notations were made in the record to aspects of 

the project that either affirmative[ly] promote or are not 

a detriment to the general welfare. . . . 

It cannot be said that [Garfield] did not address 

the issues. Nor can it be said that the Board was derelict 

in their duty to canvass the proofs, cite to the record and 

make specific findings on the positive and negative 

criteria. As such, this court finds that [Garfield] met its 

burden of proof and that the Board did not act 

arbitrarily or capriciously in approving the (d)(1) 

variance. 

The judge rejected plaintiffs' argument the lack of a (c) variance was fatal 

to Garfield's application. She noted 

[i]t is . . . well settled that . . . the (c)(2) variance(s) 

become "subsumed" in the (d)(1) variance application. 

While the Board may not ignore the (c)(2) bulk 

variances, when they are considered in conjunction 

with (d)(1) variances, they may be considered as 

ancillary to the [principal] relief sought. Price [v. 

Himeji, LLC, 214 N.J. 263, 301 (2013).] 
19 A-3387-19

The judge concluded as follows: "In this case, this very issue is addressed 

specifically in findings #10[

2

] and #24. These findings are fully supported by 

the ample record and nothing therein can be deemed arbitrary or capricious."

The judge rejected plaintiffs' argument regarding the building's effects on 

the parking conditions in the neighborhood. She found "[t]he prevailing 

ordinance in Jersey City requires one parking space per unit. Here, [Garfield] 

planned for [twelve] spaces for [twelve] units."

The judge also rejected plaintiffs' argument Garfield's experts had offered 

a net opinion. She noted the lack of a shadow study was not grounds to exclude 

the expert testimony presented on Garfield's behalf, but rather "goes to the 

weight to be accorded [to] the experts' testimony." The judge noted "the height 

issue was but one of many considered as part of the bulk variance analysis." The 

judge found plaintiffs' arguments the Board had improperly delegated its 

2 This finding read as follows: 

10. The [a]pplicant is proposing four . . . stories when 

three . . . stories are permitted. Additionally, the 

[a]pplicant is proposing a twelve . . . unit multi-family 

building, which is not a permitted use in the R-1 Zone. 

There is one . . . "C" variance required for compact 

spaces. Additionally, while subsumed under the use 

variance, there are nonconformities based on R-1 bulk 

standards.
20 A-3387-19

decision-making duties to the experts and the claim of inadequate notice for the 

hearing "not worthy of further discussion."

The judge concluded as follows:

Applicant deftly pointed out that prior development on 

the site was denser and did not conform to parking 

requirements whereas this project was less dense and 

provided necessary parking. This goes directly to the 

required showing of why the proposed use can be 

reconciled with the prevailing ordinance. 

As many as four meetings were held prior to the 

hearings wherein the parties negotiated the height of the 

building and changes were made to the design. This 

disposes of the argument by [plaintiffs] now that the 

Board did not [assess] the height deviation. The 

precedent of the prior development adequate[ly]

addresses the "particular suitability" standard. 

The presumption of validity of the decision of the 

Board has not been rebutted in this case. There was no 

density requirement to address or comply with. This 

project and the parking plan inherent in it will not 

impact the street parking at all. The Board did not 

ignore the (c)(2) variances. They were identified and 

reviewed by the Board within the context of their 

consideration of the (d)(1) use variance. For these 

reasons, the resolution of the Board is found to be free 

of any arbitrary or capricious characteristics.

On appeal, plaintiffs raise the following points:

POINT I:

THE COURT COMMITTED REVERSIBLE ERROR 

BY UPHOLDING THE BOARD'S ERRONEOUS 
21 A-3387-19

DETERMINATION THAT THE APPLICANT 

SATISFIED THE POSITIVE AND NEGATIVE 

CRITERIA REQUIRED FOR A USE VARIANCE

UNDER N.J.S.A. 40:55D-70(d)(1).

POINT II:

THE COURT BELOW COMMITTED REVERSIBLE 

ERROR BY: 

(a) holding no density standard exists despite the 

fact all parties had concurred that a standard 

exists; and

(b) failing to the invalidate the Resolution for 

failure to grant a density variance under N.J.S.A. 

40:55D-70(d)(5).

POINT III:

THE COURT BELOW COMMITTED REVERSIBLE 

ERROR BY CONSIDERING THE HEIGHT 

VARIANCE TO HAVE BEEN SUBSUMED INTO 

THE USE VARIANCE, AND BY DECLINING TO 

ADDRESS THE BOARD'S ARBITRARY AND 

CAPRICIOUS ADOPTION OF THE HEIGHT 

VARIANCE.

POINT IV:

THE COURT COMMITTED REVERSIBLE ERROR 

BY APPLYING A LOCAL ORDINANCE SETTING 

MINIMUM PARKING STANDARDS THAT ARE 

SUPERSEDED BY MORE STRINGENT 

REQUIREMENTS UNDER THE RESIDENTIAL 

SITE IMPROVEMENT STANDARDS AND NEW 

JERSEY LAW.
22 A-3387-19

POINT V:

THE COURT BELOW COMMITTED REVERSIBLE 

ERROR BY DECLINING TO ADDRESS THE MANY 

EGREGIOUS DEFICIENCIES IN THE 

APPLICANT'S PUBLIC NOTICE THAT DEPRIVED 

THE BOARD OF JURISDICTION TO HEAR THE 

APPLICATION, AND THE BOARD'S 

IMPERMISSIBLE DELEGATION OF ITS DUTIES 

AS TO THE APPROVAL OF CRITICAL ELEMENTS 

OF THE DEVELOPMENT PLAN.

"[W]hen reviewing the decision of a trial court that has reviewed 

municipal action, we are bound by the same standards as was the trial court." 

Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562

(App. Div. 2004). Thus, our review of the Board's action is limited. Bressman 

v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by 

the same scope of review as the Law Division and should defer to the local landuse agency's broad discretion).

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

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

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

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

planning board's discretionary decisions carry a rebuttable presumption of 
23 A-3387-19

validity. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 

368 (1970).

It is well-established that "a decision of a zoning board may be set aside 

only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. 

Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting

Medici, 107 N.J. at 15). "[P]ublic bodies, because of their peculiar knowledge 

of local conditions, must be allowed wide latitude in their delegated discretion." 

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

Therefore, "[t]he proper scope of judicial review is not to suggest a decision that 

may be better than the one made by the board, but to determine whether the 

board could reasonably have reached its decision on the record." Ibid.

The burden is on the challenging party to overcome this highly deferential 

standard of review. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of 

Adjustment, 152 N.J. 309, 327 (1998). A court must not substitute its own 

judgment for that of the local board unless there is a clear abuse of discretion. 

See Cell S., 172 N.J. at 82. As we stated in CBS Outdoor, Inc. v. Borough of 

Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010), "[e]ven were we 

to harbor reservations as to the good judgment of a local land use agency's 

decision, 'there can be no judicial declaration of invalidity in the absence of clear 
24 A-3387-19

abuse of discretion by the public agencies involved.'" (quoting Kramer v. Bd. of 

Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965)).

Applying these standards, we discern no basis to disturb the Board's 

reasoned decision to approve Garfield's application and the variances. The 

Board's decision is clearly supported by sufficient credible evidence in the 

record and is not arbitrary, capricious, or unreasonable. Plaintiffs' arguments 

are without sufficient merit to warrant further discussion in a written opinion.

R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in the 

Board's lengthy resolution and Judge Costello's cogent decision.

Affirmed.