                                NOT FOR PUBLICATION WITHOUT THE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-1562-18T1

440 COMPANY-CARRIAGE
HOUSE, LP,

          Plaintiff-Respondent,

v.

ZONING BOARD OF
ADJUSTMENT FOR THE
BOROUGH OF PALISADES PARK,

          Defendant-Respondent,

and

BERKELEY PALISADES PARK, LLC,

          Defendant-Appellant.


                    Argued November 13, 2019 – Decided January 22, 2020

                    Before Judges Yannotti, Hoffman, and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-0123-18.

                    Brian M. Chewcaskie argued the cause for appellant
                    (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Brian
             M. Chewcaskie, of counsel and on the briefs; Jessica V.
             Henry, on the briefs).

             Gerald R. Salerno argued the cause for respondent 440
             Company-Carriage House, LP (Aronsohn Weiner
             Salerno & Kaufman, PC, attorneys; Gerald R. Salerno,
             on the brief).

             Albert H. Birchwale argued the cause for respondent
             Zoning Board of Adjustment for the Borough of
             Palisades Park (Testa & DeCarlo, attorneys; Diane T.
             Testa, on the brief).

PER CURIAM

      Defendant Berkeley Palisades Park, LLC (Berkeley) appeals the October

22, 2018 order vacating the decision of defendant Zoning Board of Adjustment

for the Borough of Palisades Park (the Board) to grant use and bulk variances

and final site plan approval for the construction of a residential complex. The

trial court vacated the Board's approval of Berkeley's application after

determining the Board arbitrarily modified the application without justification.

We affirm.

      Berkeley filed an application with the Board in March 2016 seeking the

approval of a multi-family residential high-rise building comprised of seventeen

stories – fourteen residential floors above three levels of parking in addition to

three parking levels below grade. As a high-density apartment building, the

project was designated for affordable housing. The proposed building would

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have 154 residential units, 180 parking spaces and would be 175 feet tall.

Plaintiff owns the Carriage House, an eighteen-story residential high-rise

building in Fort Lee, about 200 feet away from Berkeley's property.

        Four variances were required for approval: 1) a "d(1)" use variance

because under the New Jersey Residential Site Improvement Standards,

N.J.A.C. 5:21-1.1 to -8.1, the property is classified as a high-rise residential

building; 2) a "d(5)" density variance because the applicable ordinance permits

64 units and Berkeley wanted to build 154;1 3) a "d(6)" height variance because

Berkeley sought to construct a seventeen-story building, and eight stories is the

maximum under the ordinance;2 and 4) a "c(1)" variance because the application

specified a zero foot front yard setback when the ordinance required fifteen feet. 3

        Although the property is in Palisades Park, due to wetlands, topography

and road layout, it cannot be accessed through that town. Therefore, Palisades

Park had previously entered into an agreement with the neighboring town – Fort

Lee – to access the property via a road located in Fort Lee.



1
    Borough of Palisades Park Municipal Ordinance § 300-9.1(E)(1)(a).
2
    Id. at § 300-9.1(D)(2)(a).
3
    Id. at § 300-9.1(F)(1)(a).


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                                         3
      In response to Berkeley's application, the Board conducted nine public

hearings between October 2016 and October 2017. The site plan and application

were amended several times during the course of the hearings; both parties

produced expert testimony.

      At the end of the October 16, 2017 hearing, the Chairman of the Board

made a motion to approve the application, modified, apparently sua sponte, to a

fourteen-story residential building with 121 units. The Board approved the

application, as modified by the Chairman, memorializing its decision in a

November 20, 2017 resolution.

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

Board's decision was arbitrary, capricious and unreasonable. On October 22,

2018, the trial court issued a comprehensive twenty-seven-page written decision

and order vacating the Board's approval of the application. The court concluded

that "the resolution as written and passed . . . granted relief far in excess of what

was sought by [Berkeley], and that relief was granted arbitrarily, capriciously

and unreasonably and without basis in the record."

      In its decision, the court noted that the lengthy resolution failed to explain

why the final application submitted by Berkeley did not meet the criteria for the

required variances or why the Chairman's modified application did. The court


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                                         4
stated the resolution was "devoid of reasons why the Board determined that a

reduction in floors and units to 14 and 121, meets the criteria, when 17 and 154

did not."   Furthermore, the court noted: "[T]he entire resolution assumes,

without basis in the record, that [Berkeley] will accept the reduction in stories,

and a more than a twenty percent reduction in the number of units, but continue

to abide by the representations made in furtherance of its application for [thirty -

three] additional units."

      The court observed that, although the Board did not specifically deny the

requested variances, it "did in fact deny them de facto by proposing, apparently

sua sponte, substantial modifications and granting variances, which on the face

of the resolution, appear to be a significant reduction from those sought."

Because the Board relied upon testimony presented in support of the application

to both deny and grant the application as modified, without any explanation, the

court was unable to "reasonably analyze what the resolution passed by the Board

actually permits. . . ." Therefore, the court could not "determine whether the

variances granted [were] inconsistent with the intent and purpose of the master

plan and zoning ordinance."

      On appeal, Berkeley argues: 1) the trial court failed to accord deference

to the Board's determination; 2) the Board's analysis of the positive and negative


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                                         5
criteria for the "d" variances was not an abuse of discretion; 3) the court erred

in not addressing the Board's analysis of the "c" variance prior to vacating the

site's approval; and 4) the Board's omission of certain conditions in the

resolution was not an abuse of discretion.

      In reviewing a zoning board's decision, we are governed by the same

standard used by the trial court. Bd. of Educ. of Clifton v. Zoning Bd. of

Adjustment of Clifton, 409 N.J. Super. 389, 433-34 (App. Div. 2009) (citing

Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-

15 (App. Div. 2007)). "Ordinarily, when a party challenges a zoning board's

decision through an action in lieu of prerogative writs, the zoning board's

decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214

N.J. 199, 229 (2013). Therefore, a court "should not disturb the discretionary

decisions of local boards that are supported by substantial evidence in the record

and reflect a correct application of the relevant principles of land use law." Lang

v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

      "[T]he action of a board will not be overturned unless it is found to be

arbitrary and capricious or unreasonable, . . . ." Dunbar Homes, Inc. v. Zoning

Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018) (alteration in

original) (quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)).


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                                        6
"A board acts arbitrarily, capriciously, or unreasonably if its findings of fact in

support of [its decision] are not supported by the record, . . . or if it usurps power

reserved to the municipal governing body or another duly authorized municipal

official, . . . ." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citations

omitted) (first citing Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,

152 N.J. 309, 327 (1998); then citing Leimann v. Bd. of Adjustment of Cranford,

9 N.J. 336, 340 (1952)).

      A board's decision concerning a question of law "is subject to a de novo

review by the courts, and is entitled to no deference since a zoning board has 'no

peculiar skill superior to the courts' regarding purely legal matters." Dunbar

Homes, 233 N.J. at 559 (quoting Chicalese v. Monroe Twp. Planning Bd., 334

N.J. Super. 413, 419 (Law Div. 2000)).

      As we have explained, Berkeley sought to construct a seventeen-story

building with 154 units. The governing ordinance required a residential building

to be less than nine stories with a maximum of 64 units. Therefore, Berkeley's

application sought use and bulk variances. To approve Berkeley's application,

the Board had to grant the needed variances. And, in its resolution, the Board

agreed the variances were required.




                                                                              A-1562-18T1
                                          7
      However, the Board did not grant the requested variances. Nor did it

approve Berkeley's application.    Instead, the Board approved a building of

fourteen stories and 121 units – without any rationale provided as to why this

number of stories and units met the criteria for variance relief or why Berkeley's

proposed building did not. Moreover, the reduction in units was still double the

number of units permitted on the property. Borough of Palisades Park Municipal

Ordinance § 300-9.1(E)(1)(a).

      In approving a substantially modified plan of its own devise, the Board

did not grant the needed variances or approve Berkeley's application. To the

contrary, its sua sponte, unsupported modification was a de facto denial of

Berkeley's application. Without any explanation for its determination, we must

conclude the Board's actions were arbitrary and capricious.       Therefore, the

approval of the modified application is vacated.

      Affirmed.




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