                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3741-17T3

S/K OLD YORK ROAD
ASSOCIATES, LP,

          Plaintiff-Appellant,

v.

THE TOWNSHIP OF BRANCHBURG,
THE TOWNSHIP COMMITTEE OF
THE TOWNSHIP OF BRANCHBURG,
and THE PLANNING BOARD OF
THE TOWNSHIP OF BRANCHBURG,

     Defendants-Respondents.
__________________________________

S/K OLD YORK ROAD
ASSOCIATES, LP,

          Plaintiff-Appellant,

v.

THE PLANNING BOARD OF THE
TOWNSHIP OF BRANCHBURG
and CONIFER, LLC,

     Defendants-Respondents.
__________________________________
            Argued October 21, 2019 – Decided December 24, 2019

            Before Judges Sumners and Geiger.

            On appeal from the Superior Court of New Jersey, Law
            Division, Somerset County, Docket Nos. L-0657-17
            and L-0972-17.

            Derek W. Orth argued the cause for appellant
            (Inglesino, Webster, Wyciskala & Taylor, LLC,
            attorneys; Derek W. Orth, on the briefs).

            William P. Robertson argued the cause for respondents
            Township of Branchburg and Township Committee of
            the Township of Branchburg (DiFrancesco, Bateman,
            Kunzman, Davis, Lehrer & Flaum, PC, attorneys;
            William P. Robertson, on the brief).

            Mark S. Anderson argued the cause for respondent The
            Planning Board of the Township of Branchburg
            (Woolson Anderson, PC, attorneys; Mark S. Anderson
            and Christine Salimbene, on the brief).

            Stacy L. Moore, Jr., argued the cause for respondent
            Conifer, LLC (Parker McCay, PA, attorneys; Harris
            Neal Feldman, of counsel; Stacy L. Moore, Jr., on the
            brief).

PER CURIAM

      In this consolidated action in lieu of prerogative writs, plaintiff S/K Old

York Road Associates, L.P. (Old York), appeals from a March 13, 2018 order

dismissing its complaints challenging:     (1) a zoning ordinance amendment

changing the zoning of the subject 9.5-acre parcel (the property) from O-Office

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                                       2
to   AH-2   Affordable    Housing—non-age-restricted,      multi-family,     100%

affordable rental apartment housing and accessory uses—that was adopted to

comply with Branchburg Township's Third Round affordable housing mandate

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

(2) preliminary site plan approval granted with waivers by the Branchburg

Township Planning Board (the Board) to defendant developer Conifer, LLC, to

construct a 100-unit affordable residential rental housing project on the Property

bordering property owned by Old York. We affirm the dismissal of Old York's

complaints substantially for the reasons stated by Judge Thomas C. Miller in his

comprehensive ninety-four-page statement of reasons.

                                        I.

      The Property is located along Route 202 in the Township of Branchburg

(the Township). It is owned by the Township and comprised of approximately

9.5 acres spanning three parcels designated as Block 74, Lots 3, 3.01, and 3.02

on the Township’s official tax map. The Property is locally known as the

"Triangle Site" for its shape. "It is bounded on the northwest by Old York Road,

on the northeast by the Whiton Hills development, and on the southeast by U.S.

Route 202. The Property is bisected by wetlands that significantly impair the




                                                                           A-3741-17T3
                                        3
development of the site. It is currently undeveloped and populated with mature

woodlands."

      Old York owns adjacent property designated as Block 74, Lot 1; it consists

of approximately twenty-four acres developed with a residential apartment

complex known as Whiton Hills. Defendant Conifer is a real estate development

company.

      In July 2010, the Board "adopted the Revised Third Round Housing

Element and Fair Share Plan in accordance with the MLUL to address the

Township's third round affordable housing obligations" and             to remain

compliant with the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 to -329. The

documents detailed the Township's affordable housing history and plan to

address the Township's third round affordable housing obligations. The plan

specified the Township was actively attempting to acquire the Triangle Site in

order to contract with an affordable housing provider to construct 120 affordable

rental units in furtherance of satisfying the Township's rental obligation.

      "In December 2011[,] the Township adopted the Land Use Plan Element

of the Branchburg Master Plan pursuant to N.J.S.A. 40:55D-28(b)(2)." The

Land Use Plan Element provides, as part of its stated goals and objectives:

            Goal 4: To address Branchburg Township's affordable
            housing obligations.

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                                        4
            Objective 4a:   To provide for a variety of housing
            types compatible with the size and scale of the
            surrounding area serving a broad range of needs of
            Branchburg residents of all ages and income levels.

            Objective 4b:      To address the affordable housing
            obligation with the minimum amount of new residential
            construction.

The Land Use Element also stated goals such as the "preservation of the rural

character of [the Township's] undeveloped areas (Goal 2), [provision of]

compatible infill development (Goal 3), and protection of the Township's

important natural resources (Goal 7)."

      In October 2014, the Board adopted the 2014 Reexamination Report of

the Master Plan pursuant to N.J.S.A. 40:55D-89. The report documented the

changes in policies, assumptions, and objectives underlying the Master Plan

since the previous reexamination report. It specified affordable housing as an

area of concern. It recommended amending any land use regulations and zoning

designations that inhibited the potential for affordable housing.

      The preliminary site plan approval application sought waivers of fifty-

nine check list requirements, deferring nine checklist requirements until final

approval, and six design waivers. Plaintiff objected to the waivers and argued

the application was not complete.        Despite this, the Board deemed the


                                                                       A-3741-17T3
                                         5
application complete and granted the checklist and deferral waivers, but

refrained from approving the design waivers.

      On October 24, 2016, the Township entered into an Affordable Housing

Agreement with Conifer to facilitate the construction, ownership, and

management of a 100-unit affordable rental project on the Triangle Property in

furtherance of satisfying the Township's affordable housing obligation.

      On March 13, 2017, the Committee introduced Ordinance No. 2017-1308.

The Ordinance proposed to rezone the Triangle Site from O-Office to a newly

created zone designated as AH-2. The purpose of the new zone was to "provide

for non-age restricted, multi-family, 100% affordable, rental apartments and

accessory uses.   The [O]rdinance was referred to the Planning Board for

consistency review in accordance with N.J.S.A. 40:55D-26."

      The consistency review was completed on March 28, 2017; a letter

confirming the Ordinance was not inconsistent with the Township's Master Plan

was issued to the Committee the following day. The Committee conducted a

public hearing and adopted the Ordinance on April 10, 2017.

      On March 31, 2017, Conifer applied for preliminary site approval to

construct the 100-unit affordable rental project on the Triangle Site. The Board

held public hearings on April 18, 25, and May 1, 2017. Conifer presented expert


                                                                          A-3741-17T3
                                       6
testimony from its project engineer, traffic engineers, and project consultant.

Old York was represented by counsel who cross-examined Conifer's witnesses

at length. Old York also presented its own experts, including a licensed civil

engineer and traffic expert. Although it had the opportunity to present expert

testimony regarding landscaping concerns, Old York's expert did not appear for

the April 25, 2017 hearing before the Board concluded testimony for the evening

at approximately 11:30 p.m. The Board agreed to hear the expert's testimony at

the subsequent May 1, 2017 hearing, but Old York advised the witness was "still

unavailable."

      At the conclusion of the testimony, the Board granted Conifer's

application for preliminary site plan approval, along with the requested waivers,

based upon the evidence presented and subject to certain conditions. The Board

adopted a Resolution on June 27, 2017, detailing its findings that the proposed

development was a permitted use in the AH-2 zone, "consistent with the goals

and objectives of the Master Plan[,] and in furtherance of the Township's

affordable housing obligations."     The Board was further satisfied Conifer

"submitted sufficient information on the fundamental elements of the [Plan] as

to permit preliminary site plan approval."




                                                                         A-3741-17T3
                                       7
      On May 25, 2017, Old York filed an action in lieu of prerogative writs to

challenge the Committee's adoption of the Ordinance and the Board's finding of

consistency (Docket No. SOM-L-657-17) (the First Complaint). The complaint

alleged: (1) the Ordinance violated the MLUL, in part, because the zone change

was not recommended by the Township's 2011 Land Use Element or the 2014

Master Plan Examination Report (count one); (2) the Committee engaged in

unlawful contract zoning (count two); (3) the rezoning was unlawful because it

constituted spot zoning (count three); and (4) the Township exceeded its zoning

authority by sustaining the rental requirement imposed by the Ordinance (count

four). The action sought to invalidate the Ordinance.

      On August 11, 2017, Old York filed a second action in lieu of prerogative

writs based on the Board's grant of preliminary site plan approval to Conifer

(Docket No. SOM-L-972-17) (the Second Complaint). The complaint alleged:

(1) the Board's action was arbitrary, capricious, and unreasonable based on

defects in Conifer's site plan application and the Board's refusal to allow Old

York to put on a full objector case (count one); and (2) the Board lacked

jurisdiction over Conifer's application (count two).    The action sought to

overturn the preliminary site plan approval.




                                                                       A-3741-17T3
                                       8
      The trial court consolidated the first and second complaints for trial. On

February 22, 2018, the court conducted a one-day bench trial. On March 14,

2018, the court issued an order and written statement of reasons dismissing the

first and second complaints with prejudice. The court concluded Old York failed

to meet its heavy burden of proof. It further determined the Ordinance was

neither arbitrary, capricious, nor unreasonable, represented a valid exercise of

the Township's zoning power that advanced the creation of affordable housing,

was consistent with the Master Plan, and advanced the purposes of the MLUL.

      The 2010 Revised Third Round Plan earmarked the Property for

affordable housing. The Council on Affordable Housing (COAH) never ruled

on the sufficiency of the 2010 Revised Third Round Plan and failed to adopt

regulations governing the third round.     Nevertheless, the court found the

Ordinance "is substantially consistent with COAH's Substantive Rules for the

development of [the Township's] housing plan and represents a suitable site as

defined by COAH's rules."

      The court rejected the opinions and conclusions of Old York's expert, John

McDonough, finding they did not accurately or fully characterize the existing

site conditions and the surrounding land uses. It further found his testimony

stated negative impacts in a conclusory fashion without any evidence to support


                                                                        A-3741-17T3
                                       9
such assertions. His testimony also did not fully analyze COAH's Second Round

Rules and either ignored or did not fully analyze the Township's adopted land

use policies with respect to the Ordinance and its application to the subject

property. The court concluded McDonough did not present any convincing

evidence that the Ordinance was in conflict with the MLUL and the credible

testimony of the opposing experts "substantially outweigh and overcome his

opinions in that regard."

      The court also rejected Old York's spot and contract zoning arguments

since those concepts have no application to municipally owned property used in

furtherance of the public purpose of creating affordable rental housing. It als o

found the Ordinance is valid as part of a comprehensive plan, essential to the

general welfare, and clearly within the Township's zoning power. The court

rejected Old York's lack of jurisdiction argument. The court further found the

record supported a finding that the developer provided sufficient information

regarding the feasibility of a compliant stormwater management plan to the

Board allowing it to grant preliminary site plan approval.

      As to Old York's claim that it was prevented from fully presenting its

objector case, the court concluded Old York was given a fair and ample




                                                                         A-3741-17T3
                                      10
opportunity to present witnesses and cross-examine the developer's witnesses,

noting a planning board has discretion to limit testimony in a reasonable manner.

      This appeal followed. Old York seeks reversal of the dismissal of counts

one and four of the first complaint and count one of the second complaint. It

raises the following points on appeal:

            POINT I: THE TRIAL COURT ERRONEOUSLY
            DETERMINED THAT THE ORDINANCE WAS
            CONSISTENT WITH AND DESIGNED TO
            EFFECTUATE THE TOWNSHIP'S LAND USE
            ELEMENT.

            POINT II: IF THE APPELLATE COURT FINDS
            THAT THE ORDINANCE WAS INCONSISTENT
            WITH OR NOT DESIGNED TO EFFECTUATE THE
            LAND USE ELEMENT, THE ORDINANCE MUST
            BE DECLARED VOID.

            POINT III: THE TRIAL COURT'S AFFIRMATION
            OF THE RENTAL HOUSING REQUIREMENTS IN
            THE ORDINANCE WAS INCORRECT AS A
            MATTER OF LAW.

            POINT IV:  THE TRIAL COURT ERRED BY
            AFFIRMING   THE   BOARD'S GRANT   OF
            PRELIMINARY SITE PLAN APPROVAL TO
            CONIFER BECAUSE CONIFER FAILED TO
            PROVIDE       SUFFICIENT    EVIDENCE
            DEMONSTRATING THE FEASIBILITY OF ITS
            DRAINAGE AND STORMWATER MANAGEMENT
            PLANS.

            POINT V:  THE TRIAL COURT ERRED IN
            DETERMINING THAT THE BOARD PROVIDED

                                                                         A-3741-17T3
                                         11
            OLD YORK WITH ADEQUATE OPPORTUNITY TO
            PRESENT ITS OBJECTOR CASE DURING THE
            HEARINGS BELOW.

                                      II.

      Our review is governed by well-established principles.             "[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. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004).

Thus, our review of the Township's and the Board's actions is limited.

      "[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 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. Thus, a reviewing court must not

substitute its own judgment for that of the local board unless there is a clear

abuse of discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W.

Windsor Twp., 172 N.J. 75, 82 (2002) (citing Med. Realty Assocs. v. Bd. of

Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988)).




                                                                          A-3741-17T3
                                      12
      "A presumption of validity attaches to a zoning ordinance that may be

overcome only if an opponent of the ordinance establishes the ordinance is

'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental

principles of zoning or the [zoning] statute.'" Manalapan Realty, L.P. v. Twp.

Comm. of Twp. of Manalapan, 140 N.J. 366, 380 (1995) (alteration in original)

(quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343

(1973)). "Although the judicial role is circumscribed, a court may declare an

ordinance invalid if in enacting the ordinance the municipality has not complied

with the requirements of the statute." Riggs v. Long Beach Twp., 109 N.J. 601,

611 (1988) (citing Taxpayer Ass'n of Weymouth Twp, Inc. v. Weymouth Twp.,

80 N.J. 6, 20 (1976)). Riggs adopted the following objective test to determine

an ordinance's validity:

            First, the ordinance must advance one of the purposes
            of the [MLUL] as set forth in N.J.S.A. 40:55D–2.
            Second, the ordinance must be substantially consistent
            with the land use plan element and the housing plan
            element of the master plan or designed to effectuate
            such plan elements, unless the requirements of that
            statute are otherwise satisfied. Third, the ordinance
            must comport with constitutional constraints on the
            zoning power, including those pertaining to due
            process, equal protection, and the prohibition against
            confiscation. Fourth, the ordinance must be adopted in
            accordance with statutory and municipal procedural
            requirements.


                                                                          A-3741-17T3
                                       13
            [Griepenburg v. Twp. of Ocean, 220 N.J. 239, 253
            (2015) (quoting Riggs, 109 N.J. at 611–12 (citations
            and internal quotation marks omitted)).]

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

that the Legislature vested zoning 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, 50 N.J. 302, 306 (1967). A planning

board's discretionary decisions carry a rebuttable presumption of validity.

Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970).

The "decision of a zoning board may be set aside only when it is 'arbitrary,

capricious or unreasonable.'" Cell S., 172 N.J. at 81. (quoting Medici v. BPR

Co., 107 N.J. 1, 15 (1987)). 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).

                                      III.

      We affirm the dismissal of the first and second complaints with prejudice

substantially for the reasons stated by Judge Miller in his comprehensive and

cogent statement of reasons. Judge Miller's findings are amply supported by the

record and his conclusions fully comport with applicable legal principles. We

discern no basis to disturb his rulings. We add the following comments.


                                                                       A-3741-17T3
                                     14
      Our Supreme Court has explained that its decisions in Southern

Burlington County N.A.A.C.P. v. Mount Laurel Township., 67 N.J. 151, 179

(1975) (Mount Laurel I) and South Burlington County N.A.A.C.P. v. Township.

of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II):

             recognized that the power to zone carries a
             constitutional obligation to do so in a manner that
             creates a realistic opportunity for producing a fair share
             of the regional present and prospective need for
             housing low- and moderate-income families. The
             Legislature enacted the Fair Housing Act of 1985 (FHA
             or the Act), N.J.S.A. 52:27D-301 to -329, to assist in
             municipal compliance with that constitutional
             obligation.

             [In re Adoption of N.J.A.C. 5:96 and 5:97 by the N.J.
             Council on Affordable Hous., 221 N.J. 1, 3-4 (2015).]

      The Court emphasized its decades long constitutional doctrine of

requiring municipalities to implement measures to make affordable housing

"realistically possible." Id. at 7.

                   In 1975, this Court prohibited the discriminatory
             use of zoning powers and mandated that each
             developing municipality "must, by its land use
             regulations, make realistically possible the opportunity
             for an appropriate variety and choice of housing for all
             categories of people who may desire to live there, of
             course including those of low and moderate income."
             [Mount Laurel I, 67 N.J. at 179, 187]. In 1983, the
             Court reaffirmed the constitutional obligation that
             towns provide “a realistic opportunity for the
             construction of [their] fair share of the present and

                                                                          A-3741-17T3
                                        15
             prospective regional need for low and moderate income
             housing.” [Mount Laurel II, 92 N.J. at 205] (citing
             Mount Laurel I, 67 N.J. at 174).

             [Ibid. (second alteration in original).]

      As correctly recognized by Judge Miller, the provision of affordable

housing is "an absolute essential in promotion of the general welfare required in

all local land use regulation," Mount Laurel I, 67 N.J. 151, 179 (1975), and

advances one of the principles of the MLUL set forth in N.J.S.A. 40:55D-2,

Sartoga v. Borough of West Paterson, 346 N.J. Super. 569, 580 (App. Div.

2002). The Ordinance permissibly advances the goal of affordable housing in

the Township.

      Old York contends the Ordinance constitutes impermissible spot zoning.

We disagree. "'Spot zoning' is the use of the zoning power to benefit particular

private interests rather than the collective interests of the community. It is

zoning which disregards the requirement of [N.J.S.A. 40:55D-62(a)] that

regulation be accomplished in accordance with a comprehensive plan to promote

the general welfare." Weymouth Twp., 80 N.J. at 18. Old York bears the burden

of proving that the Ordinance constitutes illegal "spot zoning." Id. at 19. We

agree with the trial court that it did not satisfy that burden.




                                                                         A-3741-17T3
                                        16
      As observed by Judge Miller, the Property was owned by the Township.

The Township is exempt from its zoning regulations. See Thornton v. Vill. of

Ridgewood, 17 N.J. 499, 513 (1955) (noting the zoning statute "contain[s] no

specific limitation upon municipal use of land"). This exemption has been

extended to entities who join in advancing a public purpose. Hills of Troy

Neighborhood Ass'n. v. Twp. of Parsippany-Troy Hills, 392 N.J. Super. 593,

607 (Law Div. 2005).       Nevertheless, municipal exemption from zoning

regulation is subject to a test of reasonableness. Id. at 601-06. We do not find

the use of the Property for affordable housing to be unreasonable.

      More fundamentally, the Ordinance advanced the general welfare of the

community and the State by promoting the availability of affordable housing in

the Township, thereby addressing its constitutional mandate to make low and

moderate income housing "realistically possible."

      As further noted by the judge, the Property "is contiguous to [Old York's]

property which is a high density, inclusionary, affordable housing project.

Certainly, the use type is compatible with surrounding uses." The judge also

found "the bulk standards for building height, buffering and building separation

are reasonable and rational under the circumstances. Further, those standards,

although slightly different from the zoning on Old York's contiguous parcel,


                                                                        A-3741-17T3
                                      17
they are in substantial conformity with the zone plan and the surrounding

properties." We agree "that that the record supports the proposition that the

proposed Ordinance is part of a comprehensive plan."

      Finally, we address Old York's argument that the Board prevented it from

presenting its entire objector case. Old York contends the Board arbitrarily and

unreasonably precluded it from presenting the testimony of its expert regarding

landscaping concerns. The record reveals the expert chose to attend a hearing

in a different municipality on April 25, 2017, and did not arrive until 11:30 p.m.

before the Board. By that point, testimony was concluded for the evening. The

Board offered to allow the expert to testify on May 1, 2017, but the expert did

not appear. Old York maintains that the expert was not available on that date

without providing specific reasons for his unavailability.

      The judge found Old York "was given a fair and ample opportunity to

present witnesses and cross-examine Conifer's experts." It "had three meetings

to present the testimony of a landscape witness, but unfortunately it chose a

witness who could not attend." A township planning board has discretion to

limit testimony and cross-examination in a reasonable manner. The court noted

that pursuant to N.J.S.A. 40:55D-10(d), the testimony of witnesses is "subject

to the discretion of the presiding officer and to reasonable limitations as to time


                                                                           A-3741-17T3
                                       18
and number of witnesses." Moreover, "[j]ust because a person is an objector

does not confer an absolute right to have an applicant's matter adjourned due to

claimed inability to attend one of several scheduled hearings." Mercurio v.

DelVecchio, 285 N.J. Super. 328, 334-35 (App. Div. 1995). "Generally, it is the

applicant and the Board that control the scheduling of the application." Id. at

335.

       The judge also found that "[t]he Board simply followed its own rules that

no testimony be heard after 10:30 p.m." The Board's decision to adjourn the

hearing at 11:30 p.m. and to "'start fresh' on May 1, 2017" were deemed rational

and appropriate. Under the totality of the circumstances, we discern no abuse

of discretion by the Board or the judge.

       Affirmed.




                                                                        A-3741-17T3
                                      19
