SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2098- 22 HEATHER L. FUREY, THOMAS FUREY, and VOORHEES LAW CENTER, LLC, Plaintiffs-Appellants,

v. VOORHEES TOWNSHIP ZONING BOARD OF ADJUSTMENT and VOORHEES ROUTE 73 DEVELOPMENT GROUP, LLC, Defendants-Respondents.

______________________________

Argued March 13, 2024

– Decided March 27 , 2024 Before Judges Firko and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L

- 0519

- 22. Howard N. Sobel argued the cause for appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2098

- 22 Christopher J. Norman argued the cause for respondent Voorhees Township Zoning Board of Adjustment (The Platt Law Group, PC, attorneys; Christopher J. Norman, on the brief). Timothy M. Prime argued the cause for respondent Voorhees Route 73 Development Group, LLC (Prime & Tuvel, LLC, d/b/a Prime Law, attorneys; Timothy M

. Prime, on the brief).
PER CURIAM Plaintiffs Heather L. Furey, Thomas Furey, interes ted homeowners, and Voorhees Law Center, LLC (the Law Center), an affec ted party, appeal from a February 1, 2023 Law Division order dismissing thei r complaint in lieu of prerogative writs and affirming defendant Voorhees Route 73 Development Group's (applicant) 1 application for a use variance and preliminary and final site plan approval for a Wawa with a fueling station. W e affirm.
I. The following facts are relevant to our review. O n December 19, 2019, applicant requested preliminary and final major sit e plan approval with bulk variance and design waivers to permit construction of a 5, 501 square foot Super
Wawa 24/7 convenience store with eight fuel dispensers and a 7,150 square foot

1 We refer to defendant Voorhees Route 73 Development Group as "applicant" in our opinion and to defendant Voorhees Township Z oning Board of Adjustment and applicant collectively as "defendant s."3 A- 2098

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covered canopy on Route 73 at the corner of Kresson Road (County Road 671)

. The site consists of lot s 9 and 16. The vast majority of the proposed site is located on lot 9 in the Voorhees Major Business (MB ) zoning district, except for a proposed secondary access drive on Kresson Ro ad. Voorhees, N.J., Township Code § 152.102 (2023), permits retail and commercial busi nesses, including convenience stores with gasoline function s. Therefore, lot 9 does not require a variance. However, a small portion of lot 16, consisting of approximately one-third of an acre, is located in a rural residential (RR) zone , which only permits single-family dwellings. The subject property consists of 3.48 acres in Voorhees Township and .048 acres in E vesham Township. 2 Primary access to the Wawa is from Route 73. Inclu ded in the application, and pertinent to this appeal, is a proposed seconda ry ingress and egress driveway

to be situated on lot 16 with access to Kresson Road that would occupy the residential zone portion of lot 16 , therefore requiring a use variance. The area is wooded, and a one-story dwelling on Kresson Road would be demolished to construct the secondary driveway entrance. The proposed driveway is bordered

2 The application was approved in Evesham Township and is not challenged on appeal.4 A- 2098

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by two non-residential uses, the Law Center and a c hurch. The Furey plaintiffs reside at 508 Kresson Road, across from the propose d development. Applicant sought use variance approval under Voorh ees, N.J., Township Code § 152.002 (2023), to permit construction of th e secondary driveway on Kresson Road, which is not a permitted use in the R R zone. Applicant also requested bulk variances for signage, and waivers f or drive aisles and landscaping, which are not challenged on appeal. On March 12, 2020, as required by N.J.S.A. 40:44D, defendant Voorhees Township Zoning Board of Adjustment (the Board) provided notice to residents of the March 26, 2020 hearing. The hearing was del ayed due to the COVID-19 pandemic. On April 22, 2021, a second notice was s ent to residents advising them of the new hearing date , May 6, 2021, which would be conducted vi a Zoom . In addition, on April 22, 2021, a notice was pub lished in the local newspaper, The Courier Post. 3 The May 6, 2021 Hearing

3 We note the Voorhees Township website incorrectly l isted April 8, 2021, as the hearing date. However, since posting to a Town ship's website is not statutorily or regulatorily mandated, and all the l egally required elements were satisfied by mailing and publishing in the local ne wspaper, any error on the web site is insufficient to deem the notice defective. See N.J.S.A. 40:55D-11 and - 12.5 A- 2098

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On May 6, 2021, the Board held the first of three n on-consecutive days of remote public hearings via Zoom. At the first hear ing, applicant presented testimony from two expert witnesses. The first exp ert, Matthew Sharo, 4 a professional site and use engineering planner, test ified about the zoning layout of the property, the benefit of a right-turn only egress to Kr esson Road to lessen traffic at the Kresson Road and Route 73 intersecti on, and a proposal to reduce th e speed limit along Kresson Road from forty-five miles pe r hour to thirty-five miles per hour for safety reasons, which he indicat ed the Camden County Engineering Department would favorably consider. Sharo indicated the proposed driveway on Kresson Road would be twenty-f ive feet wide. Sharo testified about proposed parking spaces, inst allation of three sidewalks, and a 100-foot buffer at the rear of the Wawa building leaving some natural buffer intact. He also testified about ant icipated operations for the Wawa, such as deliveries of groceries and other ite ms . Sharo indicated fuel would be delivered during off-peak hours. He state d ample landscaping wa s proposed that would satisfy the Voorhees Township C ompensating Tree Ordinance, and the proposed stormwater management w ould comply with local and state regulations.

4 Also referred to as "Shero" in the record.6 A- 2098

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Applic ant's second witness, Nick Verderese, an expert in traffic and transportation engineering, testified about traffic studies and the methodologies supporting the studies in connection with the appli cation. Verderese testified that three quarters of the traffic attracted to Waw a

— roughly seventy- six percent

— would be individuals already traveling on the adjacent roadway, which means the Wawa would not significantly increase tra ffic. 5 Verde re se testified that the Route 73 shoulder lane would be widened an d the proposed Kresson Road secondary driveway would be shifted 600 feet back from the KressonGibbsboro Road intersection. Verderese opined that he anticipated "little to no impact to the area." He recommended the speed limit be reduced from fort yfive to thirty-five miles per hour. Verderese also addressed two important traffic con cerns: (1) the traffic would not be a new problem as the majority of individuals stopping at the Wawa were already using the roads; and (2) additional tr affic would not be drawn to Voorhees because there are other Wawas located four miles to the south and six miles to the north that individuals from those area s could stop at. Verderese

5 These individuals are frequently referred to as "pa ss-by" traffic. Here, the individuals are already driving on Route 73 and w ould stop at Wawa because it is on route. Based on applicant's studies, only ab out twenty-four percent of the individuals would be considered new traffic because they drove on the road specifically to go to Wawa, not simply to pass by.7 A- 2098

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also testified that the traffic study anticipated o ne customer per minute. He explained that the application sought to restrict t he left turn egress on Kresson Road by providing an island. Verderese also testif ied that the applicant would widen Kresson Road to provide a five-foot wide lane in the eastbound direction with a five-foot wide bike lane adjacent to i t. At the conclusion of the experts' testimony, the Board considered testimony from residents who lived on Kresson Road and nearby Birch Street. The members of the public who spoke were predominan tly concerned with traffic generated by the proposed secondary access driveway, safety for children and bicyclists in the area, trash, and debris. In response, applicant's counsel explained that a s econd driveway was needed for safety purposes because if the first dri veway on Route 73 was blocked, individuals at the Wawa would be blocked i n. Verderese clarified the need for the driveway on Kresson Road was to avoid re sidents on Kresson Road and the area west of the site from having to enter the intersection, make a lefthand turn onto northbound Route 73, then circling b ack to get into the "right in/right out" driveway on the divided highway on Ro ute 73 South, and enter the
Wawa.8 A- 2098

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Later in the meeting, plaintiffs' counsel indicated he want ed an opportunity to cross-examine defendants' expert wit nesses and raised issues about notice and a lack of available records. The Board's chairman and defendants' attorney assured plaintiffs' counsel that he would be able to conduct cross-examination at the next hearing on July 8, 20 21, and present his expert witnesses, and would be sent a full set of plans, a ll of the reports, and anything else counsel needed to prepare for cross-examinatio n . The plans were provided more than ten days in advance of the second hearing

. The July 8, 2021 Hearing At the second hearing, applicant's counsel address ed proposed amendments to its application for a revised drivewa y plan, which included a widening and slight relocation of the driveway to d istance it from the Law Center, and to provide room for a full sidewalk alo ng the front of the property for pedestrian safety. Since Verderese was unable to att end the second hearing, another colleague from his firm, Justin Taylor, an expert in traffic and transportation engineering, who was familiar with t he matter, testified in his place. Taylor stated that his office had a meeting with C amden County representatives regarding the application, and the County confirmed that the9 A- 2098

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additional driveway on Kresson Road would be benefi cial because it would alleviate traffic issues along Route 73 and minimiz e the impact at the KressonGib bsboro Road, Kresson Road and Route 73 intersection . Taylor opined that the Department of Transportation (DOT) would recomm end this plan as it would "prefer to see some access on the secondary roads t o improve the efficiency of the state highway system and the intersections alon g there." Taylor stated the Wawa would not increase traffic in the area. Applic ant then offered testimony from Paul Phillips, an exp ert in the field of planning and zoning land use. Phillips opined that, al though lot 9 comported with the required zoning, lot 16 would require a D- l use variance, and testified "the secondary access is critical to the convenienc e store fuel sales operation as it's all about being readily accessible to the publ ic." Phillips also testified that the driveway would pro mote or advance three purposes of N.J.S.A. 40:55D-2(a): (1) guide develop ment in a manner that promotes the public welfare; (2) provide sufficient space in appropriate locations for a variety of uses; and (3) promote the free flow of traffic to reduce congestion. Regarding the "negative criteria" of N .J.S.A. 40:55D- 70 (d), Phillips further opined that the impact on the neighborhood would be minimal, as the properties adjacent to the proposed secondary acces s driveway were10 A- 2098

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nonresidential

— the La w Center on one side and a church on the other

— and would not compromise the integrity of the RR zone. 6 Following the testimony of applicant's experts, the Board again heard from members of the public. Eleven members of the public spoke , including three members who testified at the first meeting ab out the safety and overall impact on the neighborhood, including children who attend Kresson Elementary School and who play baseball at Rabinowitz Field, a s well as bicyclists using the designated bike paths on Kresson Road. In resp onse to questions raised by members of the public, Taylor confirmed that the pr oposed driveway would not change the volume of traffic on Kresson Road and tr affic entering or exiting Birch Street. Plaintiffs' counsel objected to Verderese's absence at the second hearing, stating it denied counsel the opportunity to conduc t cross-examination. For efficiency, the Board allow ed plaintiffs' counsel to have his witnesses testify at

6 It was Phillips's opinion that the area around the Wawa was "transitional in nature" and a clear residential land use pattern or presence did not come into play until Birch Street. Phillips opined that he did not think this particular section of Kresson Road wou ld maintain long -term viability for single-family residential use; therefore, allowing a driveway in that location would not rise to the level of creating a substantial impact on the zon ing plan.11 A- 2098

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the hearing since they were available and let him cross-examine applicant's witnesses at the next hearing date. Plaintiffs presented testimony from Steve Chepurny, a landscape architect, and Barbara Woolley, a professional plan ner. Chepurny opined that the proposed driveway would have a dramatic impact on the Law Center's property. Chepurny testified that the proposed sidewalk impro vements along the right- of -way would require the removal of a large tree , disrupt the buffering and landscaping, and increase sunlight, to the detriment of the Law Center and its koi pond , and potentially the building's foundation. Chepurny opined the removal of landscaping from the right- of -way w ould make the 100-year-old Law Center building appear to be too close to Kresson R oad. Althoug h the Board generally gave each witness ten minutes to testi fy , Chepurny testified for fifteen minutes. Woolley was qualified as an expert in planning and development. She testified that the proposed variance violated the M unicipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to - 65 , and its goal of promoting "aesthetics and the preservation of the neighborhood character." Woolley stated the application does not satisfy the purpose of zoning or positive criteria. Woolley testified that the area to the rear of the site is primarily resid ential, and the proposed12 A- 2098

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development is too intense for this site because it "is introducing a major commercial development into that more lower intensi ty area." Woolley stated that no zoning goals would be advanced by the appli cation, and the applicant failed to meet its burden for a use variance. She testified that removing the dwelling and constructing a commercial driveway in its place will "blur" the zoning boundaries of the zoning district. At the conclusion of plaintiffs' experts' testimony , the Board heard testimony from Stacey Arcari, 7 the Board's traffic engineer. Arcari testified th at she agreed with applicant's experts' testimony that most of the traffic for the property would be pass-by traffic and that the seco nd commercial driveway would alleviate tension from

— and take the burden off

— Route 73, Kresson Road, and Kre sson - Gibbsboro Road. A rcari confirmed that the DOT could not require a driveway on C ounty Road 671 , but was highly recommending it.

The December 16, 2021 Hearing On December 16, 2021, the third hearing date, Verde rese was recalled to testify about applicant 's recently updated plan, known as "Concept B," dated November 8, 2021. The third hearing primarily focused on the physical impact of the secondary driveway on the Law Center's prope rty. Verderese indicated

7 Also referred to as "Arceri" in the record.13 A- 2098

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that after taking into account the public's comment s from the prior hearing, the road widening would now be shifted to the opposite side of Kresson Road to increase the buffer for the Law Center and other si milarly affected properties. In addition, Verderese noted that the sidewalk woul d be relocated to be situated entirely within the right- of -way, and extended to fill gaps to improve pedestrian safety. He also noted that if applicant only built the Wawa store and did not add a driveway, then children in the area w ould be walking on the street for 2,000 feet instead, creating a safety issue. Ultimately, Verderese opined that it would be a " positive " for the Board to grant the variance because it was a better alter native than having the driveway on the east side or within the commercial zone s in c e it would be closer to the signal. Plaintiffs' counsel was then allotted time to cross-examine applicant's three expert witnesses. After the hearing was opened for public comments, p laintiffs' counsel elicited testimony from Gordon Meth, a traffic engi neering expert. Meth testified about sight distancing and opined that th e site distance to the secondary access on Kresson Road is 200 feet, when it should be 430 feet. Plaintiffs' counsel then recalled Chepurny, who rei terated his prior testimony that the proposed driveway would have a s ubstantial adverse impact14 A- 2098

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on the Law Center. At the completion of Chepurny's rebuttal testimony, the Board again opened the meeting for public comment. Heather Furey and three members of the public commented and again expressed traffic concerns. The Board then closed the evidentiary portion of the he aring. The Board proceeded

t o vote on the application, with five members voting y es and two members voting no. On January 13, 2021, the Board adopted a twenty-fiv e-page resolution granting defendant's application for a use variance to allow for the secondary access drive on Kresson Road. The Board reasoned t he property is "primarily in the MB" zone and would be a permitted use "but f or the secondary access drive on Kresson Road in the RR" zone. The Board found applicant's traffic engineer's testimony "credible" regarding the "traf fic design with the secondary access on Kresson Road with restriction on left-tur n egress represent[ing] a better planning alternative than a plan strictly li miting ingress/egress on Route 73." The Board found limiting ingress/egress only to Route 73 will "likely create congestion issues at the Route 73/Kresson Ro ad traffic-light intersection" and that the Board's engineer has "endorsed" the tr affic design. The Board also found applicant's professional plann er was "credible" regarding the proofs for a use variance and a bulk variance. The Board found15 A- 2098

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"special reasons exist," "the purposes of zoning ar e advanced," the secondary driveway on Kresson Road is "particularly suitable, " and "the granting of relief will not substantially impair the neighborhood." The Board also concluded the "negative criteria" wa s met by the applicant based upon the testimony of its three expert witnes ses. In particular, the Board noted a Wawa convenience store and fueling station is a permitted use on the subject property on Route 73, and applicant "will m itigate any substantial adverse impacts on adjoining non-residential proper ties within the RR zone." The Board found the proposed use is "compatible" wi th the MB zone and the RR zone "with adequate buffering and screening." The Board considered the concerns raised by plainti ffs and neighbors regarding traffic patronizing Wawa's as "primarily 'pass-by trips' that are already on the roadway heading to other destinations" as co nfirmed by applicant's traffic engineers and the Board's engineer. The Board spec ifically rejected the argument that the secondary access driveway w ould create new traffic problems on Kresson Road "as it is anticipated that motorist s will comply with posted speed limits and traffic laws." Lastly, the Board found "the expert planning testimony in support of granting variance relief was more credible on the part of Wawa," and plaintiffs' planner's expert testimony t hat a Wawa convenience16 A- 2098

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store/fueling station was inappropriate on Route 73 /Kresson Road within the MB zone "simply is not credible." On February 28, 2022, plaintiffs filed a four-count complaint in lieu of prerogative writs in the Law Division, challenging the Board's decision on the following grounds: lack of jurisdiction (count one ); lack of procedural due process (count two); arbitrary, capricious, and unr easonable conduct (count three); and violation of the MLUL and Voorhees Ordi nance § 156.008(D), claiming two Board members, Alina Tulman and Balrup Hundal, were not present for all hearings and did not provide certif ications to the Board that they read a transcript or listened to recordings of the hearings they missed (count four). The trial court conducted several case manag ement conferences established a briefing schedule for discovery, and conducted oral argument on December 5, 2022. The trial court reserved decisio n. On February 1, 2023, the trial court entered an ord er denying the relief sought by plaintiffs and issued a comprehensive fif ty-page written decision. The trial court found applicant's three expert witnesse s

— Sharo, Verderese, and Phillips

— were all "credible." The trial court determined pl aintiffs' expert, Chepurny, was "less credible" than applicant's expe rt witnesses because he offered "irrelevant or unreasonable testimony and d id not evidence the breadth17 A- 2098

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of knowledge of the area as did the other witnesses ." In addition, the trial court noted Chepurny's testimony "seemed confusing at tim es." Regarding Woolley's testimony, the trial court fou nd her testimony was "credible," but "irrelevant," and "based only upon personal experience." The trial court explained that Woolley's answers were " concise" but "inherently unbelievable" because she stated, without authority , that "too much variance relief is being requested;" testified about vehicle traffic "despite admitting she is not a traffic expert; " and "misunderstood section B of the MLUL as it pert ains to flood, fire, panic, natural, and manmade disaste rs." The trial court also pointed out Woolley's testimony that the variance s hould not be granted because the master plans dating back to 1998 failed to ment ion changes to the permitted uses of the area "appears to misunderstand the natu re of use variance relief." The trial court concluded the Board was not arbitra ry, capricious, or unreasonable when it approved applicant's variance. For the positive criteria, the trial court found "the Board ha[d] ample basis to designate lot 16 as particularly suitable for the requested use variance." The trial court reasoned the proposed driveway was already situated between two non-confo rming properties, and the Board reasonably relied on expert testimony on this issue. For the negative criteria, the trial court found the Board's decisio n was entitled to deference,18 A- 2098

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reasoning, "[t]he driveway w[ould] not be substanti ally detrimental to public good, nor w[ould] it, as already mentioned, substan tially impair the intent and purpose of the zone plan and zoning ordinance." This appeal followed. On appeal, plaintiffs raise the following arguments for our consideration: (1) the trial court usurped its role and made findi ngs of fact that were contradicted by the record; (2) plaintiffs were den ied due process, and their counsel received disparate treatment; and (3) the a pplicant failed to satisfy the positive and negative criteria and ultimately sought re zoning by variance.
II.
A. We first address plaintiffs' argument that the tria l court usurped its role and made findings of fact that were contradicted by the record. "When reviewing a trial [court's] decision regarding the validity of a local [B] oard's determination, 'we are bound by the same standards as was the trial [judge].'" Jacoby v. Zoning Bd. of Adjustment of Borough of En glewood Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone P rops., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). However, when an appeal raises a question of law, we apply a plenary standard of review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).19 A- 2098

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We "give deference to the actions and factual findi ngs of local [B] oards and may not disturb such findings unless they [are] arbitrary, capricious, or unreasonable." Jacoby, 442 N.J. Super. at 462. Lo cal z oning boards have "peculiar knowledge of local co nditions" and must be afforded "wide latitude in the exercise of delegated discretion." Kramer v. B d. of Adjustment, 45 N.J. 268, 296 (1965). However, we give less deference to a Board's grant of a variance than a denial because "[v]ariances to allow new nonconform ing uses should be granted sparingly and with great caution since they tend to impair sound zoning." Burbridge v. Governing Body of Twp. of Mine Hill, 1 17 N.J. 376, 385 (1990) (alteration in original) (quoting Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967)). The MLUL vests a z oning board with the power "[i]n particular cases for special reasons, [to] grant a variance to allow dep arture from regulations . . . to permit . . . a use or principal structure in a dist rict restricted against such use or principal structure." N.J.S.A. 40:55D-70(d)(1). T he burden on the applicant to show "special reasons" is often referred to as the positive statutory criteria. See Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustm ent, 152 N.J. 309, 323 (1998).20 A- 2098

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"N o variance . . . may be granted . . . without a sho wing 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." N.J.S.A. 40:55D- 70. "This is sometimes referred to as one of the 'negative' statutory criteria for the grant o f a use variance." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of A djustment, 388 N.J. Super. 67, 76 (App. Div. 2006) (quoting Smart SMR, 152 N.J . at 323). Plaintiffs contend that the trial court made indepe ndent credibility findings even though the Board made none. Defendan ts counter the trial court did not usurp its role in reviewing the record and did not make independent findings of fact that were not supported by the rec ord.
A Board's resolution "must contain sufficient finding s, based on the facts in the record, to satisfy a reviewing court that th e Board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." N.Y. SMSA v. Bd. of Adj. , 370 N.J. Super. 319, 333 (App. Div. 2004). We have rejected memorializing resolutions that "summarize[d], in a very cursory f ashion, the testimony presented by [the applicant's] witnesses, and reite rate[d] selected comments by Board members and the public." Ibid. ; see also Cox & Koenig, N.J. Zoning &21 A- 2098

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Land Use Administration § 19:7-2 (2024) (stating "m ere recitals of testimony are not 'findings.'"). Although a z oning board may reject an applicant's expert testimony, i t must do so on an identified basis, such as reliance on contra ry expert testimony, and should not rely on "bare allegations or unsubst antiated beliefs." N.Y. SMSA, 370 N.J. Super. at 338 (citing Cell S. of N.J . v. Zoning Bd. of Adjustment, 172 N.J. 75, 87 (2002) ). A resolution relying on comments and concerns from Board members or residents will not s atisfy a Board's obligation to ground its decision on evidence presented during a hearing. Cell S. of N.J., Inc., 172 N.J. at 88 (holding a Board's decision mu st be "root[ed] . . . in substantiated proofs rather than unsupported allega tions."). A Board's reliance upon non-expert testimony from its members or conce rns voiced by residents rather than qualified expert testimony to prove the adverse effects associated with a requested variance renders a Board's decisio n arbitrary, capricious, and unreasonable. Ibid. The record belies plaintiffs' assertions. For exam ple, the record shows that plaintiffs' contention the Board made no credi bility findings is simply untrue. In paragraph thirty-two of the Board's res olution, it found "credible the expert traffic testimony proffered by [a]pplicant's traffic engineer . . . ." In22 A- 2098

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paragraph thirty-three of the Board's resolution, i t found "credible the testimony of [a]pplicant's professional planner . . . ." In paragraph thirty-nine of the Board's resolution, it found "the expert planning t estimony in support of granting variance relief was more credible on the part of [a pplicant]." Also in paragraph thirty-nine, the Board found plaintiffs' expert tes timony "not credible." Based upon our review of the record, we are satisfi ed the Board properly relied on substantial credible evidence in the reco rd and made findings of fact and conclusions of law that went beyond a mere reci tal of the testimony. Therefore, we conclude that the Board upheld its st atutory responsibility to make independent findings of fact. Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41 (App. Div. 2004) (citing Scully-Boza rth Post #1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington, 362 N.J. Super. 296 (App. Div. 2003)). Nor did the trial court usurp the Board's role, as plaintiffs argue. Rather, the trial court performed its role to carefully rev iew the transcripts and the Board's findings of fact and confirmed th os e findings to support its decision that the Board was not arbitrary, capricious, or unreaso nable. For instance, the trial court confirmed the Board's finding that applicant' s planning expert was more credible than plaintiffs' planning expert noting, " Mr. Phillips was a credible23 A- 2098

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witness, whose testimony was clear and concise, and who evidenced knowledge not only about the application, but also about the area, state and local laws, and the applicant's intent." In contrast, the trial co urt found Woolley's testimony "both irrelevant and based only upon her personal e xperiences," and her answers were sometimes "inherently unbelievable." The Board's findings and conclusions are rooted in competent evidence. The Board considered and rejected evidence produced by plaintiffs and did not agree with their position. The record on which the Board's decision was made was both complete and thorough. The trial court co nfirmed the Board's decision , which was supported by findings of fact that were n ot arbitrary, capricious, or unreasonable.
B. Next, plaintiffs argue the trial court erred in fi nding there was no denial of due process or disparate treatment that negative ly impacted them. Specifically, plaintiffs contend that the Board exc luded their counsel from engaging in voir dire of the experts, objecting dur ing the direct examination of experts, and engaging in contemporaneous cross-exam ination. Defendants counter that plaintiffs' counsel received a fair an d meaningful opportunity to participate at the hearings.24 A- 2098

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It is well established that planning boards act in a quasi-judicial fashion. Kramer, 45 N.J. at 282; see also Paruszewski v. Twp. of Elsi nboro, 154 N.J. 45, 54 (1998). Proceedings before boards are usually s omewhat informal, nevertheless, some orderly manner of hearing the ev idence and testimony should be observed. Cox & Koenig, § 18-3.1. "All interest ed parties in attendance who wish to speak in favor of the application should be heard," and "all interested persons who wish to speak out against the applicati on should be heard." Id. §
18 -3.2. N.J.S.A. 40:55D

– 10(d) further establishes certain minimal procedure s by stating: The testimony of all witnesses relating to an appli cation

for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interes ted parties through their attorneys, if represented, or directly, if not represented, subject to the discre tion of the presiding officer and to reasonable limitations as to time and number of witnesses. While most objectors are entitled to be heard, the chairperson may reasonably limit duplicitous or irrelevant testimon y. Shim v. Washington Twp. Plan. Bd., 298 N.J. Super. 395, 413-14 (App. Div. 199 7). Also, where objectors had an opportunity to cross-examine witnesses on mo st days of a hearing, the fact that a particular witness was not available on one day did not deprive the objectors of their right to cross-examine and did n ot invalidate the Board25 A- 2098

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decision. See Lincoln Heights Ass'n v. Cranford Pla n. Bd., 314 N.J. Super. 366 (Law Div. 1998). Accordingly, a Board's decision sh ould not be overturned if substantial justice was in fact achieved notwithsta nding the Board's errors. DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 146 (Law Div. 2003). Here, the record shows the Board conducted all three hearings in a manner that did not deny plaintiffs, or any member of the public, the right to fully and meaningfully participate. After an exhaustive revi ew of the record, the trial court correctly noted, "[t]he Board's refusal to he ar the argument when [plaintiffs' counsel] sought to present it was neit her an error warranting reversal, nor an error warranting remand. It was, simply, a d etermination by the [B]oard as to when the argument would be heard, at a time t hey chose, and not at a time when counsel chose." See Mercurio v. DelVecchio, 2 85 N.J. Super. 328, 335 (App. Div. 1995). The record supports that determination. Moreover, plaintiffs' counsel was permitted to raise his arguments at eac h hearing. Plaintiffs' counsel also takes issue with the time restrictions imposed on him to question witnesses, but, again, the record d emonstrates, he was not denied due process. In fact, even when reasonable time li mitations were placed on plaintiffs' counsel for questioning witnesses

— a ten-minute limitation

— which is something the Board has a right to do pursuant to N .J.S.A. 40:55D-10(d), the26 A- 2098

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Board consistently allowed him to exceed his allott ed time even though he agreed to abide by the ten-minute limitation

. For example, during his crossexamination of Verderese, plaintiffs' counsel was a fforded fifteen minutes over the eight minutes he claimed he needed. Woolley testified on direct examination for fourteen minutes. As the trial court correctly noted, "by necessity, reasonable limitations do not necessarily equate to equal time allotments for all witnesses." Similarly, the int erruptions and objections interjected against plain tiffs' counsel by the chairperson and applicant's counsel were not unfair nor a denial of due process. It is well established that the cha irperson is allowed to reasonably limit duplicitous or irrelevant informat ion. During the third hearing, the Board appropriately interrupted plaintiffs' cou nsel to ensure his experts were testifying about issues about which they were quali fied and to st ay focused on the application. We reject plaintiffs' assertion t hat their landscaping architect was "shackled with unreasonable restrictions"; he w as merely barred from testifying about surveying, which he was not qualif ied to testify about in an expert capacity. Moreover, plaintiffs' claim that they w ere prejudiced because the applicant confused the Board and the public by its experts' testimony opining27 A- 2098

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that the second driveway entrance was required by t he DOT is also devoid of merit. The record clearly demonstrates that any con fusion was clarified when applicant's counsel represented that the D OT encouraged and supported the second driveway, but could not require it because t he DOT does not have jurisdiction over a c ounty road. Even plaintiffs' own expert witness, Wo oll e y, understood that to be the case when she noted, "they've clearly stated for th e record that it is . . . encouraged, not required and not mandated." Thus, the trial court correctly found that the record showed the Board properly con ducted the hearings without any infringement of plaintiffs' due process rights and without prejudice to any members of the public.
C. Plaintiffs next contend that the trial court erred in finding the applicant presented sufficient proofs at the hearings to sati sfy the criteria to be granted a use variance. The MLUL governs land use and develo pment planning generally and specifically authorizes zoning boards to grant variances under circumstances defined in the statute. The statute r equires a finding of "special reasons" or positive criteria, and "a showing that such variance or other relief can be granted without substantial detriment to the public good and will not28 A- 2098

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substantially impair the intent and the purpose of the zone plan and zoning ordinance" or negative criteria. N.J.S.A. 40:55D-70 (d). To satisfy the "special reasons" or positive criter ia as a predicate to granting a use variance under (d)(1), an applicant must prove: (1) the use "inherently serves the public good"; (2) "the use p romotes the general welfare because the proposed site is particularly suitable for the proposed use"; or (3) the applicant would experience "undue hardship," be cause "the property cannot reasonably be developed with a conforming use." Me dici v. BPR Co., 107 N.J. 1, 4 (1987); see also Stop & Shop Supermarket Co. v . Bd. of Adj. of Springfield , 162 N.J. 418, 430-31 (2000). The Board's function is to analyze whether these special reasons exist and in actions in lieu of pre rogative writs, the judge considers whether the Board's action was arbitrary, capr icious, or unreasonable, and whether it acted properly in accordance with th e statutory standard. Paruszewski , 154 N.J. at 54- 55. Plaintiffs assert that applicant failed to satisfy the positive criteria requirement because it did not present sufficient s pecial reasons. According to plaintiffs, the application here serves no purpose other than profit for Wawa and increased customer flow.29 A- 2098

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In Price v. Himeji, LLC, 214 N.J. 263, 284 (2013), our Court considered the meaning of "particularly suited." The Price Court held demonstrating that a proposed site is particularly suited for the propos ed use "does not require proof that there is no other potential location for the u se, nor does it demand that the project 'must' be built in a particular location." Id. at 293.

Rather, it is an inquiry into whether the property is particularly suited for the proposed purpose, in th e sense that it is especially well-suited for the use , in spite of the fact that the use is not permitted in the zo ne. Most often, whether a proposal meets that test will depend on the adequacy of the record compiled befor e the z oning board and the sufficiency of the board's explanation of the reasons on which its decision to grant or deny the application for a use variance is based

. [Ibid.] In finding the applicant demonstrated "special rea sons" for the (d)(1) variance here, the trial court analyzed whether the positive criteria were satisfied. The trial court reasoned the Board had "ample b asis to designate [l]ot 16 as particularly suitable for the requested use v ariance" because the proposed driveway is "uniquely situated in the RR Zone, as i t is bordered on both sides by properties with non-conforming uses." The trial court highlighted that the proposed driveway "abuts the MB Zone where the use would be conforming and provides the Wawa with frontages on two major thoro ughfares."30 A- 2098

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The trial court concluded the Board relied on exper t testimony in finding the enumerated (d)(1) factors were met, and that th e resolution cited "specific, independent facts" from the hearings evidencing the proposed driveway: "(1) promotes the public health, safety, morals, and gen eral welfare; (2) provides sufficient space for a commercial location; and (3) promotes the free flow of traffic to reduce vehicle congestion." Having reviewed the record, we are satisfied the p ositive criteria were met. Citing Price, the trial court here correctly pointed out a variance was granted because the pa rc el was situated across the street from a zone where the use was permitted, and in the residential area of t he subject property, only thirty percent of the structures complied with the existin g height requirement. 214 N.J. 272, 274- 75. Like Price, applicant's secondary driveway also si ts directly next to a lot where its use would be conforming. And, it is also uniquely situated in a residential zone that is surrounded by properties w ith non-conforming uses

— the Law Center and a church. The trial court was c orrect in its determination that the positive criteria were met. As to the first factor of the negative criteria, t he trial court found that the secondary driveway would not "damage the character of the neighborhood" or31 A- 2098

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"exacerbate existing problems." The trial court hi ghlighted that "76% of anticipated customers were already driving by the p roposed Wawa and would return to either Route 73 or Kresson Road upon exit ing." The trial court also considered that the "remaining 24% of anticipated c ustomers have the potential to exacerbate traffic," however, plaintiffs "failed to quantify the share of those drivers expected to come from Route 73, where no use v ariance is required, visà-vis Kresson Road, the actual site of the requeste d variance and where exacerbation is relevant." The trial court also examined the experts' testimo ny pertaining to site distances

— which look to whether vehicles have sufficient time to exit safely

— and determined the Board's finding that the negativ e criteria were met was supported by the record. We agree. The trial court next considered the second prong a nd concluded applicant proved the grant of the use variance "would not sub stantially impair the intent and purpose of the zone plan and zoning ordinance." The tria l court noted there "had been a substantial change in the character of the neighborhood surrounding the subject property" and along the north side of K resson Road between Route 73 and Birch Street, "there is only one single residence l ocated in the RR zone." In rejecting plaintiffs' argument that the Wawa wou ld compromise the integrity32 A- 2098

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of the RR zone, the trial court concluded that base d on Taylor's credible testimony, Kresson Road will "operate at levels of Service B . . . which shows that there is capacity to accommodate the additiona l traffic." Based on the record, we are satisfied the applicant satisfied th e second prong of the negative criteria. There is sufficient evidence supporting the Board' s finding that the use variance will not cause substantial detriment to th e public good. Transformation of the vacant space, with the exception of the dwel ling to be demolished, will provide an amenity to the area. With little impact o n traffic, there is no credible evidence that the application will cause a substant ial detriment to the public good. Medici, 107 N.J. at 22, n.12. On this record, there is substantial credible evid ence supporting the Board's decision to grant the use variance. Consis tent with the Board's "peculiar knowledge of local conditions, [it] must be allowed wide latitude in [its] delegated discretion." Jock v. Zoning Bd. of Adjus tment, 184 N.J. 562, 597 (2005). The Board thoroughly reviewed the testimon y and evidence and detailed its findings in its resolution. When weighing the benefits and detriments of granti ng the variance, the Board found benefits to the community and noted tha t any detriments were33 A- 2098

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insignificant. And in its review, the trial court was satisfied the Board's decision was grounded upon facts found in the record and tho se facts support the

conc lusions it reached in granting the variance and application. The Board's approval is therefore supported by sufficient, cred ible evidence in the record, and is not arbitrary, capricious, or unreasonable. We conclude that plaintiffs' remaining arguments

— to the extent we have not addressed them

— lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.