SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0034-22 

FERRIS FARMS OF EAST 

BRUNSWICK, LLC, 

 Plaintiff-Respondent, 

v.

TOWNSHIP OF EAST 

BRUNSWICK, TOWNSHIP 

COUNCIL OF EAST 

BRUNSWICK, TOWNSHIP 

OF EAST BRUNSWICK 

PLANNING BOARD, 

and TOWNSHIP OF EAST 

BRUNSWICK ZONING 

BOARD OF ADJUSTMENT, 

 Defendants-Appellants. 

________________________ 

Argued October 10, 2023 – Decided December 26, 2023 

Before Judges Gilson, Berdote Byrne, and BishopThompson. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-7257-20.

NOT FOR PUBLICATION WITHOUT THE 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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Jay A. Weiner argued the cause for appellants 

Township of East Brunswick Zoning Board of 

Adjustment (Weiner & Weiner, PC, attorneys; Jay A. 

Weiner, of counsel and on the brief).

Craig M. Gianetti argued the cause for respondent (Day 

Pitney LLP, attorneys; Craig M. Gianetti, of counsel 

and on the brief; Amanda M. Kronemeyer, on the brief). 

PER CURIAM 

In this prerogative writs matter, defendant Township of East Brunswick 

Zoning Board of Adjustment's (Board) appeals from the July 27, 2022 order, 

which incorporated a May 31, 2022 order, reversing and vacating the Board's

denial of plaintiff Ferris Farm Inc. of East Brunswick, LLC's use and density 

variance application. Having considered the arguments, the record, and the 

applicable legal principles, we affirm in part, reverse in part, and remand for a 

new determination by the Board. 

I.

 We summarize the relevant facts from the record. Plaintiff owns five 

acres in the Township of East Brunswick (Township) at 690 Cranbury Road, 

designated as Block 321, Lot 6.03. The property is within the Township's R-1 

Single Family Rural Residential Zone (R-1 Zone) that permits single-family 

detached homes on one-acre lots. Known as "Ferris Farms Garden Center," it is 
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a "highly intense, non-conforming commercial use" consisting of buildings, 

greenhouses, and parking spaces within the R-1 Zone. 

 Plaintiff submitted an application to the Board to develop fifty units of 

townhouses consisting of forty market rate units and ten affordable units at a 

density rate of ten units per acre. The application sought bifurcated use and 

density variances and, if granted, followed with a preliminary and final site plan 

approval for the development. 

 The Board held public hearings on January 17, April 4, June 20, October 

3, November 21, December 19, 2019, and on July 2, 2020 concerning plaintiff's 

original, first amended, and second amended applications. During the hearings, 

plaintiff's proposed plan underwent two iterations. The first amended 

application reduced the proposal to thirty-six townhouse units. The second 

amended application further reduced the site plan to thirty townhouse units and 

a density of six units per acre. The proposed development consists of five 

buildings, two buildings with six units, one building with eight units, one 

building with seven units, and one building with three units. All are threebedroom units. 

The second amended plan depicted each townhouse driveway as twenty 

feet wide with a paver brick line down the center of driveways between 

neighbors. A stop sign, stop bar, curb ramps, and a crosswalk had been added 
4 A-0034-22

at Cranbury Road. No parking signs were added throughout the development 

and the cul-de-sac area was striped as a fire lane because of comments from the 

Township's fire official. The size of the stormwater management basin had been 

increased and exceeded the New Jersey Department of Environmental Protection 

standards. The revised plan also kept existing trees along the south border to be 

contained within a proposed conservation easement. Trash can locations had 

been depicted along the street for weekly pickup also based on the Board's 

comment. 

 In support of its application that the site could accommodate the proposed 

townhouse development, plaintiff presented expert witnesses including an 

architect, civil engineer, planner, traffic consultant, environment consultant, 

professional planner, and a real estate sales and marketing consultant. The 

Board presented no independent testimony from its professionals to refute, or 

raise issue with, plaintiff's experts. During the hearings, the public posed 

questions concerning the stormwater management and buffering, which were 

addressed by the civil engineer. 

At the hearings, the Board focused on snow removal, electric vehicle 

charging stations, the homeowners' association, the sidewalk on Cranbury Road, 

and the turning direction of residents leaving their driveways. The Board also 

focused on inadequate visitor parking for holiday and "potential overflow." 
5 A-0034-22

Although the Board acknowledged the Residential Site Improvement Standards 

were "probably adequate," they also noted the police department found the 

proposed 135 physical spaces to be inadequate. Additionally, the Board 

declined to permit parallel parking on the proposed thirty-foot roadway for guest 

parking. 

The Board was advised plaintiff met with the lone objector, a neighboring 

homeowner, and agreed to a "24-foot-wide access and utility easement" 

dedicated to the homeowner, with a "single water" and "single sewer lateral" for 

one unit. Plaintiff also agreed to preserve the wood line along the shared 

property line in a conservation easement and to provide additional landscaping 

to screen the parking spaces and detention basin. At the December hearing, the 

attorney for the lone objector advised the Board that the homeowner was 

satisfied with the second amended application. 

 On July 2, 2020, the Board heard recommendations by its professional 

staff. The Board then denied the application in a 6-1 vote without deliberation, 

which rendered the bifurcated site plan moot. Each Board member placed the 

reasons for denial on the record. 

On September 3, 2020, the Board issued a twelve-page resolution 

memorializing its July 2 decision. The Board found "the proposed project [was] 

not appropriate and not suitable at the proposed site for the reasons provided on 
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the record;" and based on the testimony presented the "[a]pplica[tion] [did] not 

satisf[y] the positive and negative requirements for the [u]se [v]ariance pursuant 

to N.J.S.A. 40:55D-70(d)(1) and N.J.S.A. 40:55-70(d)(5), and that it cannot be 

granted without substantial impairing the intent and purpose of the Township's

Master Plan and Zoning Ordinances." 

 Plaintiff filed a complaint in lieu of prerogative writs, challenging the 

Board's action as arbitrary, capricious, and unreasonable. It sought reversal of 

the Board's denial and requested approval of its second amended application. 

The Board filed an answer and separate defenses. 

Following a one-day trial, the trial court reserved decision. On May 31, 

2022, the trial court entered an "order for judgment and other related relief" and 

issued a comprehensive forty-three-page written decision. After conducting a 

"scrutinizing review and analysis of the transcripts, the [a]pplication, and the 

proofs adduced in the record," the court found the "Board's denial of [p]laintiff's 

[a]pplication was without foundation, arbitrary, capricious[,] and unreasonable." 

The court reversed and vacated the Board's denial of plaintiff's second amended 

application. The court also directed the Board to adopt a resolution approving 

plaintiff's application, granting the use and density variances, and granting 

plaintiff leave to submit a follow-up development application for preliminary 

and final site plan approval for the proposed development. 
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Thereafter on July 27, 2022, the trial court entered final judgment 

incorporating the May 31 order and the parties' consent order dismissing the 

remaining claims. 

II. 

On appeal, defendant raises the following points: 

POINT I 

THE TRIAL COURT ERRED IN ITS 

DETERMINATION THAT DEFEN[]DANT 

TOWNSHIP OF EAST BRUNSWICK ZONING 

BOARD OF ADJUSTMENT WAS ARBITRARY, 

CAPRICIOUS, AND UNREASONABLE IN ITS 

DECISION DENYING PLAINTIFF’S APPLICATION 

FOR THE USE AND DENSITY VARIANCES 

SOUGHT. 

POINT II 

THE TRIAL COURT ERRED IN ITS 

DETERMINATION THAT PLAIN[]TIFF SATISFIED 

THE POSITIVE CRITERIA THRESHOLD NEEDED 

FOR THE USE AND DENSITY VARIANCES 

SOUGHT. 

POINT III 

THE TRIAL COURT ERRED IN ITS 

DETERMINATION THAT PLAINTIFF SATISFIED 

THE NEGATIVE CRITERIA THRESHOLD NEEDED 

FOR THE USE AND DENSITY VARIANCES 

SOUGHT. 
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POINT IV 

THE TRIAL COURT ERRED IN ITS 

DETERMINATION THAT DEFENDANT 

TOWNSHIP OF EAST BRUNSWICK ZONING 

BOARD OF ADJUSTMENT’S RESOLUTION 

MEMORIALIZING ITS DECISION WAS 

INADEQUATE AND/OR INSUFFI[]CIENT TO 

SUPPORT ITS DETERMINATION, THEREBY 

RENDERING THE DENIAL OF THE APPLICATION 

AR[B]ITRARY, CAPRICIOUS, AND 

UNREASONABLE. 

"When reviewing a trial court's decision regarding the validity of a local 

board's determination, 'we are bound by the same standards as . . . the trial 

court.'" Jacoby v. Zoning Bd. of Adj. of Bor. of Englewood Cliffs, 442 N.J. 

Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem 

Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "We have long 

recognized that zoning boards, 'because of their peculiar knowledge of local 

conditions[,] must be allowed wide latitude in the exercise of delegated 

discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in 

original) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)). 

However, we review de novo a board's conclusions of law. Wyzykowski v. 

Rizas, 132 N.J. 509, 518 (1993). Thus, we exercise plenary review of a board's 

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

65. See Russo v. Bd. of Trs., Police and Firemen's Retirement Sys., 206 N.J. 
9 A-0034-22

14, 27 (2011) (stating a court is "'in no way bound by an agency's interpretation 

of a statute'") (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93, 

312 A.2d 497 (1973)); Motley v. Borough of Seaside Park Zoning Bd. of Adj., 

430 N.J. Super. 132, 146 (App. Div.) (reviewing de novo board of adjustment's 

interpretation of MLUL), certif. denied, 215 N.J. 485 (2013). 

We give deference to the actions and factual findings of local boards. 

Jacoby, 442 N.J. Super. at 462. "A board's decision 'is presumptively valid, and 

is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of 

N.Y., Inc. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998) (quoting 

Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 166-67 (1992)); see also Kane Props., 

LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "We do not review the 

wisdom of [a planning board's] decision, rather . . . we merely 'determine 

whether the board could reasonably have reached its decision.'" Pullen v. Twp. 

of S. Plainfield Plan. Bd., 297 N.J. Super. 1, 6-7 (App. Div. 1996) (quoting Davis 

Enters, v. Karpf, 105 N.J. 476, 485 (1987)). "Accordingly, we will not disturb 

a board's decision unless we find a clear abuse of discretion." Cell S. of N.J., 

Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 82 (2002). 

We first address whether the trial court erred in finding plaintiff presented 

sufficient proofs at the hearing to satisfy the criteria to be granted a use variance. 

The MLUL governs land use and development planning generally and 
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specifically authorizes zoning boards to grant variances under circumstances 

defined in the statute. The statute requires 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 not 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 criteria 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 promotes the general welfare 

because the proposed site is particularly suitable for the proposed use"; or (3) 

the applicant would experience "undue hardship," because "the property cannot 

reasonably be developed with a conforming use." Medici 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). 

However, when an applicant seeks a d(5) variance from density 

restrictions with a d(1) use variance, the applicant need not demonstrate that the 

property is "particularly suitable to more intense development" to satisfy the 

"special reasons" requirement under the MLUL. Coventry Square, Inc. v. 

Westwood Zoning Bd. of Adj., 138 N.J. 285, 287 (1994); Price, 214 N.J. at 296-

97; Grubbs v. Slothower, 389 N.J. Super. 377, 388 (App. Div. 2007). Instead, 
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the applicant need only show that the particular site will "accommodate the 

problems associated with the proposed use with [a greater density] than 

permitted by the ordinance." Id. at 398. 

Following an exhaustive review of the record, the court examined the 

findings of fact made by the Board, disagreed, and found the Board was 

"incapable of refuting the fact that the proposed residential use is permitted in 

the R-1 Zone (albeit for single-family, not the townhome type) and that, if the 

use variance were granted, it would eliminate the pre-existing, nonconforming 

use to which the [p]roperty was being utilized" as a retail garden center. The 

court further determined the elimination of the garden center, "that fact alone, 

could qualify as a "special reason" that satisfied the "positive criteria" under the 

MLUL to qualify it for a (d)(1) use variance. 

In finding plaintiff demonstrated "special reasons" for the d(1) and d(5) 

variances sought, the court analyzed whether plaintiff satisfied the positive 

criteria. The court reasoned the record was "undisputed that residential use is 

permitted in the R-1 Zone, but that the unit type and density were not." Upon 

determining the d(1) and d(5) were "inextricably intertwined," the court 

concluded plaintiff satisfied the positive criteria by "demonstrating with 

overwhelming evidence" and the exhaustive and "uncontroverted" testimony 
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from the planning expert that the site was "particularly suited for a townhouse 

development" and "furthered the purposes of zoning." 

As to the negative criteria, the court found plaintiff "proved that a grant 

of the use and density it sought could be approved by the Board and would not 

be a "substantial detriment to the public good." The court highlighted the

"'hodgepodge' of residential and commercial uses along the Cranbury Road 

corridor – many of which were approved by use variance by the Board." The 

court also noted "the surrounding area is residential just as [the proposed 

development] would be, and it was further demonstrated that the unit type and 

density (as reduced) would be consistent with most of the surrounding 

properties." Based on the record, the court concluded plaintiff satisfied the first 

prong of the negative criteria. 

The court next considered the second prong and concluded plaintiff 

proved the grant of the use and density variance could be approved by the Board 

and would not "substantially impair the intent and the purpose of the zone plan 

and zoning ordinance." It also determined that the record was devoid of 

substantial credible evidence to support the Board’s findings and conclusions 

concerning a substantial impairment to the public good. The court concluded 

the Board's "denial was rendered in spite of preponderating, uncontroverted and 

substantial, credible evidence adduced by the [p]laintiff in the record that 
13 A-0034-22

supported – and proved – its satisfaction of both the positive and negative

criteria." Thus, the court found that the record "warranted the Board’s grant of 

the use variance and attendant density variance," and approval of the bifurcated 

application. 

 We are persuaded that the proposed development for thirty-unit 

townhouses does not run afoul of a "determination that the use ordinarily should 

not be allowed in the zoning district." Coventry Square, 138 N.J. at 287. We 

are satisfied the trial court's findings that plaintiff satisfied the positive and 

negative criteria are amply supported by the record. We also conclude the record 

supported the trial court's findings that residential use is permitted within the R1 Zone and the proposed development is consistent with "goal 28" of the 2015 

Master Plan Reexamination to establish "appropriate development standards for 

lots which adjoin high density residential and commercial areas." As a 

consequence, we find no error in the court's conclusions that the Board neither 

followed the statutory guidelines nor properly exercised its discretion. 

Columbro v. Lebanon Twp. Zoning Bd. of Adj., 424 N.J. Super. 501, 508 (App. 

Div. 2012) (quoting Med. Ctr. at Princeton v. Twp of Princeton Zoning Bd. of 

Adj., 343 N.J. Super. 177, 199 (2001)). 

We also reject the Board's contention that the trial court erred in finding 

the Board's denial was arbitrary, unreasonable, and capricious. A board's 
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resolution "must contain sufficient findings, based on the proofs submitted, to 

satisfy a reviewing court that the board has analyzed the applicant's variance 

request in accordance with the statute and in light of the municipality's master 

plan and zoning ordinances." N.Y. SMSA, 370 N.J. Super. at 333. We have 

rejected as deficient memorializing resolutions that "summarize[d], in a very 

cursory fashion, the testimony presented by [the applicant's] witnesses, and 

reiterate[d] selected comments by Board members and the public." Ibid. 

"[S]tatements of individual Planning Board members, 'represent informal 

verbalizations of the speaker's transitory thoughts, they cannot be equated to 

deliberative findings of fact . . . . '" Rocky Hill Citizens for Responsible Growth 

v. Plan. Bd. of Rocky Hill, 406 N.J. Super. 384, 413 (App. Div. 2009) (quoting 

N.Y. SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 334

(App. Div. 2004)). 

Although a zoning board may reject an applicant's expert testimony, it 

must do so on an identified basis, such as reliance on contrary expert testimony, 

and should not rely on "bare allegations or unsubstantiated beliefs." N.Y. 

SMSA, 370 N.J. Super. at 338 (citing Cell S. of N.J., Inc., 172 N.J. at 87). A 

resolution relying on comments and concerns from board members or residents 

will not satisfy 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 
15 A-0034-22

must be "root[ed] . . . in substantiated proofs rather than unsupported 

allegations."). A board's reliance upon non-expert testimony from its members 

or concerns voiced by residents rather than qualified expert testimony to prove 

the adverse effects associated with a requested variance renders a board's 

decision arbitrary, capricious, and unreasonable. Ibid. 

Here, the trial court relied on N.Y. SMSA and found the Board's resolution 

contained a "mere recital of testimony" and "conclusory statements couched in 

statutory language" contrary to the requirements of applicable law. The court 

explained the Board's findings in the resolution were in "clear conflict" with the 

"uncontroverted testimony" provided by plaintiff's expert witnesses. Moreover, 

the "conclusions reached and recited in the [r]esolution lacked substantial, 

credible evidence in the record to support" the Board's action. 

Having reviewed the record, we conclude the Board's resolution was 

deficient because it simply identified the applicant, described the proposed 

development, provided a cursory summary of the expert witness testimony, and 

reiterated select comments by board members as a basis for the denial of the 

application. In sum, the Board's resolution failed to meet the requirements of 

N.J.S.A. 40:55D-10(g). See Medici, 107 N.J. at 23. 

We are satisfied the trial court expressed his findings of fact and 

conclusions of law in a cogent, written opinion. As discussed above, we are 
16 A-0034-22

cognizant of plaintiff's burden of proof, which was met by overwhelming and 

uncontroverted evidence. Medical Realty Assoc. v. Bd. of Adj., 228 N.J. Super. 

226, 233 (App. Div. 1988); see also N.Y. SMSA, 370 N.J. Super. at 331. We 

find no error in the trial court's conclusion that the Board's action in denying 

plaintiff's application was arbitrary, capricious, and unreasonable. 

We also agree with the court's conclusion that the Board's resolution lacks 

the fact-finding required by Medici. However, we conclude the trial court 

mistakenly exercised its discretion in directing the Board to adopt a resolution 

approving plaintiff's application, granting the use and density variances, and 

granting plaintiff leave to submit a follow-up development application for 

preliminary and final site plan approval for the proposed development. See Jock 

v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005) (explaining that 

generally a court should not make a decision for a zoning board). Instead, we 

hold that the Board should be given an opportunity to reconsider the application 

on the existing record. 

Accordingly, we reverse that portion of the trial court's order and direct 

that the matter be remanded to the Board. The Board is to reconsider the 

application on the existing record and take a new vote on the application. If the 

Board votes to deny the application, its resolution must expressly explain how 

it has overcome the errors identified by the trial court. If it cannot explain how
17 A-0034-22

it can overcome those errors, the Board should vote to approve the application. 

Either way, the Board shall issue a new resolution, setting forth specific findings 

of fact to support its decision in accordance with N.J.S.A. 40:55D-10(g). See 

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

2000). 

Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.