                                NOT FOR PUBLICATION WITHOUT THE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-3744-18T1

JANEK PATEL,

          Plaintiff,

and

A&D CONVENIENCE STORE,
INC.,

          Plaintiff-Appellant,

v.

CITY OF SOUTH AMBOY
PLANNING BOARD and
DEVIMY EQUITIES, LLC,

     Defendants-Respondents.
____________________________

                   Submitted February 24, 2020 – Decided March 9, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-4101-18.

                   Gasiorowski & Holobinko, attorneys for appellant
                   (Ronald S. Gasiorowski, on the brief).
            Respondents have not filed a brief.

PER CURIAM

      Plaintiffs, Janek Patel and his company A&D Convenience Store, objected

to approvals granted by the South Amboy Planning Board to a developer that

wishes to build a convenience store next to plaintiffs' own convenience store.

The Law Division rejected all of plaintiffs' arguments to set aside the Board's

approvals. A&D Convenience Store appeals that decision. For the reasons that

follow, we affirm.

                                        I.

      We derive the following pertinent facts and procedural history from the

proceedings before the Planning Board and the trial court.

      The proposed project would be built within a redevelopment zone. In

February 2002, the South Amboy governing body adopted the Broadway/Main

Street Redevelopment Plan. The Plan covers a roughly ten-acre area of land,

comprising forty-six parcels fronting Broadway and Main Street in South

Amboy.

      In June 2017, defendant DeVimy Equities, LLC, the developer and the

property's contract purchaser, filed an application for preliminary and final site

plan approval for a proposed 7-11 convenience store. The store would be


                                                                          A-3744-18T1
                                        2
located on a parcel at the corner of Main Street and Broadway in South Amboy.

Appellant concedes the proposed convenience store is an approved commercial

use within the redevelopment zone.

      The property currently has an unused building that, according to appellant,

was previously used as an antique store and auto upholstery store.           The

remainder of the parcel is presently a parking lot.

      Appellant operates a Krauszer's convenience store adjacent to one side of

the proposed 7-11. The two establishments would be competitors, although,

unlike the proposed 7-11, the Krauszer's has a liquor license.

      The Planning Board held four public hearings on DeVimy's proposed

development from November 2017 through early March 2018.              Following

revisions made to the original application during the hearing process, the

Planning Board ultimately considered the following variances and waivers as

part of the overall application:

            A variance for maximum impervious coverage, which
            would be 82.7% rather than the required 80%.

            A waiver for parking space size from the required ten
            feet by twenty feet to a proposed nine feet by eighteen
            feet.

            A waiver for minimum parking space distance from the
            building, from the required twenty feet to six feet.


                                                                         A-3744-18T1
                                        3
             A waiver of the requirement for a loading area for
             delivery vehicles.

             A waiver to increase fence height from a statutory
             maximum of four feet to a proposed six feet.

             A waiver for driveway distance from an intersection
             from a required fifty feet to a proposed forty-four feet.

             A waiver to construct signs when signs are generally
             not permitted in the zone.

      Several expert witnesses respectively testified at the hearings; some on

behalf of the applicant DeVimy and others for the objectors who oppose the

project. There is no indication either party objected to the qualifications of any

of the testifying experts.   In addition, several local residents spoke at the

hearings.

      Josh Sewald—DeVimy's Engineer

      Josh Sewald, a site design engineer, testified for DeVimy. He described

the current layout of the property, DeVimy's proposal, and the required

variances.

      Sewald opined that the variance for nine-by-eighteen-foot parking spaces,

rather than the ten-by-twenty-foot requirement, were appropriate because the 7-

11 customers would be making quick trips for small purchases without shopping

carts, and would not require additional space. He also testified that a six-foot


                                                                          A-3744-18T1
                                        4
distance between the parking spaces and the building was "very standard and

prototypical" for small convenience stores like this one. He noted that the

Planning Board engineer's report agreed with both of these conclusions.

      Sewald explained that the store would be serviced by a tractor trailer

delivery during "off-peak" hours "once-a-week" for thirty to forty-five minutes.

Sewald also described newspaper deliveries and garbage pickup, and how the

site would accommodate these services.

      Regarding the loading zone variance, Sewald testified that because a 7-11

is a small store, its deliveries would be made through the front door and do not

require a formal loading zone. He testified that during the once-a-week, thirty-

minute delivery time, a delivery truck would take up most of the parking spaces

on the property, but other vehicles would be able to maneuver around the truck

to enter and exit the property. In response to questions from the Planning Board,

Sewald stated that there would be fourteen overall deliveries a week, including

the tractor trailer delivery, but the remainder of the deliveries would be in vans

that could occupy a regular parking space.

      On cross-examination by plaintiffs' counsel, Sewald acknowledged that

one parking space would be blocked during trash pickups. He also conceded

that nearly all the parking spaces directly in front of the store would be blocked


                                                                          A-3744-18T1
                                        5
by the tractor trailer deliveries. He noted that, if the spaces in front were initially

occupied, the trucks could circulate the block and reenter the parking lot.

      According to Sewald, the current property has 94.6 percent impervious

coverage, and under DeVimy's proposal that coverage would be reduced. The

reduced coverage would comply with state and local requirements and be a

"positive to the drainage situation on the property."

      Justin Taylor – DeVimy's Traffic Expert

      Justin Taylor testified for DeVimy as a professional traffic operations

engineer. Applying concepts from the Institute of Transportation Engineers,

Taylor projected the expected customer traffic into the 7-11 store and evaluated

whether the adjacent roads could handle the traffic changes. As part of his

review, Taylor examined the proposed site approximately six to seven times.

      According to Taylor, traffic on adjacent roads would "circulate and

function well" with the proposed development. He opined that the increase in

traffic would be "negligible." In particular, Taylor estimated that "60 to 70

percent of the traffic associated with the project would already be there",

because the 7-11 would serve as a stop along customer's preexisting commute

routes. He expected about thirty-one vehicles would use the property during

morning peak hours, and twenty-four or twenty-five during evening peak hours.


                                                                               A-3744-18T1
                                          6
      Taylor contended the roads could accommodate these changes with no

more than a two-second increased delay in traffic flow. Taylor further testified

the driveways into and out of the building would operate "safely and efficiently

with the adjacent traffic."

      Taylor also addressed traffic and parking within the parking lot itself. He

concluded that the proposed nine-by-eighteen-foot parking spaces were

appropriate and would not be a safety issue, and that the proposed six -foot

distance between the parking spots and the building was "prototypical."

      According to Taylor, 7-11 stores around the nation rely on front-loading

deliveries without a loading zone. He noted deliveries would occur at off-peak

times, or between the morning and evening rush hours. The lot was designed so

a tractor trailer would not need to swing out into oncoming traffic when entering

the parking lot, and thus would not impede the flow of traffic in the opposite

direction.

      On cross-examination, Taylor conceded that a truck would need to cross

into the opposite lane to exit the property. He also acknowledged trucks would

block most of the front entrance to the store while making deliveries.




                                                                          A-3744-18T1
                                       7
      Christine Cofone – DeVimy's Planning Expert

      Christine Cofone, a licensed professional planner, testified for DeVimy

about the benefits of the proposed project and the requested variances.

      Cofone noted that the 7-11 was a permitted use in the redevelopment zone.

She acknowledged the project's impervious coverage exceeded legal

requirements, but it would nonetheless reduce the current coverage from 96.4

percent to 82.7 percent. She further testified that proposed landscaping and

green space for the project would improve the "curb appeal" of the property.

      Regarding the fence height variance, Cofone testified that the proposed

six-foot fence beneficially would give neighbors more screening from the store.

      Cofone testified that it was common for other similarly sized stores in the

area to not have loading zones. She asserted that the parking size and location

variances were "prevailing industry standard practices of a use of this type," and

would result in a "safe and efficient circulation plan." She opined that requiring

the site to comply with these requirements would result in a less efficient use of

land and interrupt traffic circulation. With a variance for smaller spaces, the

developer could introduce more green space onto the site.

      As to overall benefits of the project, Cofone asserted the 7-11 would serve

the goals of revitalizing the Broadway/Main Street area. The business would


                                                                          A-3744-18T1
                                        8
also improve the tax base by upgrading existing commercial uses from a

preexisting abandoned property.

      Cofone identified other benefits of the proposal compared to the property's

current use, including reducing impervious coverage, providing better screening

for neighboring residential properties, and improving the aesthetic appeal of the

lot. She testified there were no negative impacts from the proposed project, and

that the extent of the variances would be "de minimis."1

      Andrew Thomas – Plaintiffs' Planning Expert

      As part of the objectors' case, plaintiffs called Andrew Thomas, a planning

expert.

      Thomas    opined    that   nine-by-eighteen-foot   parking   spaces   were

inappropriate for a convenience store like the one proposed, particularly because

a larger parking space could more easily accommodate delivery vehicles.

Thomas further stated the proposed development would cause traffic disruption

in the redevelopment zone due to the location of its trash and recycling

containers, the inadequate parking space sizes, and the lack of loading area. He




1
 We will discuss, infra, Cofone's testimony concerning buffer zone issues, as
well as that of plaintiffs' planning expert.
                                                                         A-3744-18T1
                                        9
also contended that the parking and circulation issues, and lack of buffer zone,

would be a detriment to the surrounding neighborhood.

      Craig Robbins – Truck Driver Witness

      Plaintiffs called Craig Robbins to testify in his capacity as a professional

truck driver. Based on his experience driving a tractor trailer, he stated such a

vehicle could not enter or exit the property without swinging into the oncoming

traffic lane.

      Alexander Litwornia – Plaintiffs' Traffic & Noise Expert

      Plaintiffs called Alexander Litwornia as a traffic and noise expert.

Litwornia asserted that a garbage truck picking up trash from the dumpster on

the proposed property would "consistently violate" noise codes. He estimated

the noise of the truck from readings he had heard on other garbage trucks.

However, Litwornia had not studied the baseline noise level on Broadway at the

proposed location.

      Litwornia also voiced concerns about parking and traffic issues. He

testified that in order to have a truck exit the property safely, three off-site

parking spaces on Broadway would need to be removed to accommodate its

turning path. According to appellant, this conflicted with DeVimy's expert

testimony about traffic flows. Litwornia contended that DeVimy should have


                                                                          A-3744-18T1
                                      10
conducted what he called a "gap study" to properly determine the flow of traffic

to and from the proposed development.

      Given the site location and traffic volume, Litwornia maintained traffic

circulation to and from the site would be unsafe. He also testified the site plan

was in violation of state, county, and local regulations governing the locations

of driveways near residential properties.

      Upon considering these competing presentations, on March 28, 2018, the

Planning Board narrowly voted, five to four, to approve DeVimy's application.

A corresponding resolution of approval was adopted on May 23, 2018.

                                       II.

      Plaintiffs challenged the Planning Board's action by filing in the Law

Division a complaint in lieu of prerogative writs in July 2018. After plaintiffs

slightly amended their complaint, the Planning Board and DeVimy filed

answers. Following an initial case management conference with the trial court,

the matter was temporarily remanded to allow the Planning Board to revise its

resolution of approval. The resolution was amended accordingly, and the case

returned to the Law Division.

      Following briefing and argument, the trial court issued an oral opinion on

March 18, 2019 rejecting plaintiffs' various challenges to the Planning Board's


                                                                         A-3744-18T1
                                      11
approvals. Although the court recognized certain aspects of the case were of

concern, on the whole the court found the Planning Board had complied with

the law and reasonably applied its expertise and knowledge of local conditions.

      The present appeal by plaintiff A&D Convenience Store ensued. For

reasons that are not disclosed, counsel for DeVimy and for the Planning Board

each wrote letters to this court advising that they would not file briefs or

participate in the appeal. Hence, we have reviewed the issues raised on appeal

without the benefit of opposing counsel's advocacy.

                                      III.

      On appeal, the objector to the project argues:

            POINT ONE

            THE BOARD ARBITRARILY AND UNFAIRLY
            LIMITED AND INTERFERED WITH THE
            PLAINTIFF/OBJECTOR'S PRESENTATION AND
            CASE, AND THAT SHOULD INVALIDATE THE
            PROCEEDING AND THIS BOARD APPROVAL
            DETERMINATION.

            POINT TWO

            THE BOARD ERRED BOTH PROCEDURALLY
            AND SUBSTANTIVELY IN ITS CONSIDERATION
            AND DETERMINATION AS TO THE NEED FOR A
            10 FOOT BUFFER ON THE SITE AS PER SECTION
            53:79(A)(5)(a).

            A. Procedural Errors in Buffer Determination

                                                                        A-3744-18T1
                                      12
            1. Board Planner's Repeated Interjection as to the Legal
            Issue of Buffer Requirement.

            2. Improper Preclusion of Evidence as to Prior Buffer
            Determination and Application.

            POINT THREE

            THE BOARD APPROVAL WAS ARBITRARY AS
            THE BOARD FAILED TO PROPERLY ASSESS THE
            ADVERSE IMPACTS OF DEFICIENT PARKING
            AND LOADING FACILITIES AT THIS INTENSE
            COMMERCIAL USE.

            POINT FOUR

            THE BOARD'S REVISED RESOLUTION REMAINS
            INADEQUATE AND CONCLUSIONARY, AND
            CONFIRMS THE LACK OF ADEQUATE PROOFS
            AND FINDINGS SUPPORTING THE BOARD
            ACTION.

      We approach the issues on appeal guided by well-established principles.

Generally, judicial review of a decision of a municipal planning board or board

of adjustment is highly deferential.        "[T]he law presumes that boards of

adjustment and municipal governing bodies will act fairly and with proper

motives and for valid reasons [and] will be set aside only when it is arbitrary,

capricious and unreasonable." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J.

268, 296 (1965); see also Friends of Peapack-Gladstone, 407 N.J. Super. 404,

424 (App. Div. 2009) (reiterating the judiciary's limited standard of review of


                                                                        A-3744-18T1
                                       13
local land use decisions). The plaintiff has the burden of proving the land use

decision is arbitrary, capricious and unreasonable. See Dunbar Homes, Inc. v.

Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018). A

reviewing court may not substitute its judgment "for the proper exercise of the

Board's discretion," CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd.

of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010).                However, a

municipal board's interpretation of the law is reviewed de novo and not entitled

to deference. Dunbar Homes, 233 N.J. at 559.

      Among other things, DeVimy sought "(c)(2)" variances under N.J.S.A.

40:55D-70(c)(2). That subsection provides, in pertinent part, that:

            (2) where in an application or appeal relating to a
            specific piece of property [it is shown that] the purposes
            of this act . . . would be advanced by a deviation from
            the zoning ordinance requirements and the benefits of
            the deviation would substantially outweigh any
            detriment, [the Board may] grant a variance to allow
            departure from regulations pursuant to article 8 of this
            act . . . .

            [N.J.S.A. 40:55D-70(c)(2).]

      As this court explained when construing the Municipal Land Use Law

("MLUL") in Wilson v. Brick Twp. Zoning Bd. of Adj., 405 N.J. Super. 189,

198 (App. Div. 2009), the application for a (c)(2) requires:



                                                                            A-3744-18T1
                                       14
            (1) [that it] relates to a specific piece of property; (2)
            that the purposes of the Municipal Land Use Law would
            be advanced by a deviation from the zoning ordinance
            requirement; (3) that the variance can be granted
            without substantial detriment to the public good; (4)
            that the benefits of the deviation would substantially
            outweigh any detriment and (5) that the variance will
            not substantially impair the intent and purpose of the
            zone plan and zoning ordinance.

            [Ibid. (citing William M. Cox, New Jersey Zoning and
            Land Use Administration, § 6-3.3 at 143 (2008)).]

      "[N]o (c)(2) variance should be granted when merely the purposes of the

owner will be advanced." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551,

563 (1988). "The grant of approval must actually benefit the community in that

it represents a better zoning alternative for the property." Ibid. Hence, the focus

of a subsection (c)(2) case ordinarily is "on the characteristics of the land that

present an opportunity for improved zoning and planning that will benefit the

community." Ibid.; see also Cicchino v. Twp. of Berkeley Heights Planning

Bd., 237 N.J. Super. 175, 181-83 (App. Div. 1989).

      DeVimy also requested several waivers, apart from the variances. In

general, a planning board has the authority to waive certain requirements for site

plan approval where their application would result in "undue hardship" because

of conditions unique to the property. N.J.S.A. 40:55D-51(b). The primary

distinction between waivers and variances is that waivers are exceptions from

                                                                           A-3744-18T1
                                       15
requirements contained in a site plan ordinance, whereas variances are

exceptions from a municipal zoning ordinance. See, e.g., Wawa Food Mkt. v.

Planning Bd. of Borough of Ship Bottom, 227 N.J. Super. 29, 34 (App. Div.

1988) (describing the distinction between waivers and variances); see also Cox

& Koenig, New Jersey Zoning & Land Use Administration, § 23-8 (2019).

                                         A.

      We first discuss the issues concerning whether DeVimy needed a buffer

zone variance.

      Appellant argues the Planning Board erred because it concluded DeVimy

was not required to provide a ten-foot buffer between the proposed development

and an adjacent residential property. 2 We reject its effort to invalidate the

project on this basis.

      The parcel at issue in this appeal borders residential property on the

southwestern side of the property line. This is apparently the side, rather than

the rear, of the proposed development.

      DeVimy's planning expert, Sewald, testified that the proposed building

would be two feet from the adjoining residential property line. The 7 -11 would



2
  The residential property owner has not participated in the litigation, nor did
that owner appear at the hearings to object to the lack of a buffer.
                                                                        A-3744-18T1
                                      16
be separated from the adjacent residential property by a six-foot high fence,

which was intended to prevent access from one property to another and shield

the residential property from the commercial space. Appellant argues reversal

is required because the Planning Board failed to recognize that a buffer was

required and failed to discuss it in its resolution approving DeVimy's proposal.

      In considering the appellant's challenge, we recognize that a municipal

board's interpretation of the law is reviewed de novo. Dunbar Homes, 233 N.J.

at 559; Atl. Container, Inc. v. Twp. of Eagleswood Planning Bd., 321 N.J. Super.

261, 269 (App. Div. 1999) (noting "interpretation of an ordinance is essentially

a legal issue . . . . As such, the conclusions of the [planning board], as well as

the Law Division, are not entitled to any particular deference").

      Despite the de novo review of municipal ordinances, this court has

observed that, because a planning board is required to approve a master plan as

well as a zoning ordinance, "the Planning Board can be expected to have more

than a passing knowledge of the legislative intent at the time of the enactment. "

Ibid. Therefore, our courts have given "deference to a municipality's informed

interpretation of its ordinances, while nevertheless construing the ordinance de

novo." DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App.

Div. 2004).


                                                                          A-3744-18T1
                                       17
      Interpretation of an ordinance is guided by the same principles of

interpretation as any other statute or code. State, Twp. of Pennsauken v. Schad,

160 N.J. 156, 170 (1999) ("The established rules of statutory construction

govern the interpretation of a municipal ordinance."). "The meaning derived

from that language controls if it is clear and unambiguous." Ibid. Where a code

is ambiguous, a court should consider "the statute's purpose, legislative history,

and statutory context to ascertain the legislature's intent." Ibid.; See also

DePetro, 367 N.J. Super. at 174 (noting that a reviewing court's interpretation

of an ordinance should be guided by "the local legislative intent").

      That said, "the personal motivation of individual lawmakers is irrelevant

to the interpretation of the law." Cox & Koenig, § 26-2.3 at 565; See also Tasca

v. Bd. of Trustees, Police & Firemen's Ret. Sys., 458 N.J. Super. 47, 56 (App.

Div. 2019) (quoting Tumpson v. Farina, 218 N.J. 450, (2014)) ("We will not

presume that the Legislature intended a result different from what is indicated

by the plain language or add a qualification to a statute that the Legislature chose

to omit.").

      Here, the Planning Board did not discuss the need for a ten-foot buffer

zone, or a variance from that requirement, in the "Conclusions" portion of its

resolution.   The resolution did, however, include in its narrative section a


                                                                            A-3744-18T1
                                        18
summary of the opinion of its professional planner, Angelo Valetutto, that there

was no buffering requirement in the redevelopment zone. It also included

references to the contrasting testimony of plaintiffs' planner, Thomas, who

thought a buffer zone was necessary. Appellant contends the Redevelopment

Plan and Land Development Ordinance require such explicit consideration.

      The Redevelopment Plan includes certain bulk requirements. Relevant

here, the setback requirements are:

            d. Minimum front yard setback: 0 feet
            e. Minimum side yard setback: 0 feet
            f. Minimum total side yard setback: 0 feet
            g. Minimum rear yard setback: 25 feet

The Redevelopment Plan does not include any language about buffer zones with

adjoining properties.

      The Redevelopment Plan also explains how it interacts with the

municipality's Land Development Ordinance:

            The objectives, standards and requirements contained
            in the Broadway/Main Street Redevelopment Plan,
            shall regulate development within the Redevelopment
            Area and take precedent over the Land Development
            Ordinance of the City of South Amboy. For standards
            not specifically addressed within this Broadway/Main
            Street Redevelopment Plan, the Land Development
            Ordinance shall apply. The regulations for the zone or
            zones permitting the most similar types of use or uses
            shall be applied. These requirements may be varied by


                                                                        A-3744-18T1
                                      19
              the Planning Board pursuant to N.J.S.A. 40:55D-1 et
              seq.

              [(Emphasis added).]

       The Land Development Ordinance includes a section on "Design and

Performance Standards."         Land Development Ordinance, Article XVII. 3

Appellant argues these standards apply to all zones within the municipality,

including the Redevelopment Zone. Included in this section of the Ordinance is

a general requirement for buffer zones between commercial and residential

properties:

              (5) Buffers.

              (a) Buffer areas shall require site plan approval and are
              required along all lot lines and street lines which
              separate a nonresidential use from either an existing
              residential use or residential zoning district. Buffer
              areas shall be developed in an aesthetic manner for the
              primary purposes of screening views and reducing
              noise perception beyond the lot. Buffer widths shall be
              measured horizontally and perpendicularly to lot and
              street lines. No structure, activity, storage of materials
              or parking of vehicles shall be permitted in a buffer
              area. The standards for the location and design of
              buffer areas are intended to provide flexibility in order
              to provide effective buffers. The location and design of
              buffers shall consider the use of the portion of the
              property being screened, the distance between the use
              and the adjoining property line, differences in
              elevations, the type of buffer such as dense planting,

3
    Available at: https://clerkshq.com/Southamboy-nj.
                                                                           A-3744-18T1
                                         20
existing woods, a wall or fence, buffer height, buffer
width and other combinations of man-made and natural
features. The buffer shall be designed, planted, graded,
landscaped and developed with the general guideline
that the closer a use or activity is to a property line or
the more intense the use, the more effective the buffer
area must be in obscuring light and vision and reducing
noise beyond the lot, as determined by the
administrating Board.

(b) A minimum of one-half (1/2) of the periphery that
requires a buffer shall have a buffer at least ten (10) feet
wide which shall be designed, planted, graded,
landscaped and developed to obscure the activities of
the site from view. In addition, the periphery that
requires a buffer shall consist of at least the following:
fencing or walls in a landscaped area not less than ten
(10) feet wide; a landscaped area with at least five (5)
feet high growth. A building with a setback of at least
two hundred (200) feet with a grade of less than twenty
percent (20%) shall have groups of plantings and trees
located within this setback area to enhance some
architectural feature(s) of the structure as well as offer
a break to large open areas, but with no other use
permitted in this yard area. A parking area setback shall
be landscaped as required under the off-street parking
provisions of this chapter. If in the judgment of the
approving authority any of these alternate provisions
will not provide sufficient buffers for the portion of the
site proposed, the approving authority may require the
site plan to be modified to show the extension of the
ten-foot buffer area outlined above or require that the
proposed alternatives be landscaped differently or be
relocated until, in the approving authority's judgment,
they provide the desired buffering effect.

[Section 53-79(A)(5)(a-b) (emphasis added).]


                                                               A-3744-18T1
                           21
      Furthermore, the Land Development Ordinance defines a "buffer area" as:

            BUFFER AREA — A dense and continuous landscaped
            screening area, planted and maintained, consisting of
            fences, massed trees and shrubs of such species and size
            as will produce a sufficient density to obscure or
            confine throughout all seasons automobile headlight
            glare, site noise, windblown debris and other typical
            and frequent nuisance problems, etc., as well as create
            an aesthetically pleasing and attractive view to mask or
            obscure the use, function or structure located upon the
            site.

            [Land Development Ordinance, Definitions, Article
            VII].

The Land Development Ordinance does not define the term "setbacks."4

      The need for a buffer zone was discussed extensively at the hearings.

Plaintiffs' attorney cross-examined DeVimy's expert Cofone at length on the

subject. He asked her whether the zoning ordinance required a buffer zone with

adjoining residential properties. She testified that, because the Redevelopment

Zone has zero-foot front and side yard setback requirements, and because there

was a conscious decision in the Plan to "build flexibility into the redevelopment

process" and encourage new development, it was reasonable to read the

enactments as not requiring a buffer zone.



4
  The MLUL does not provide a definition of either "setback" or "buffer." See
N.J.S.A. 40:55D-3 to -7.
                                                                         A-3744-18T1
                                      22
      Cofone opined that the Redevelopment Plan governed this particular use,

and that the municipal ordinance would not be implicated unless there was a use

variance requirement that the Redevelopment Plan did not cover. She concluded

in her opinion as a professional planner, that "the use is permitted in the

[R]edevelopment [P]lan, and that the [R]edevelopment [P]lan has bulk standards

in it to regulate the use."

      Valetutto, the Board's professional planner, who represented he was the

author of the Redevelopment Plan, testified 5 at the hearings about the report he

had prepared concerning DeVimy's application. He explained his intent when

he was drafting the Redevelopment Plan:

             MR. VALETUTTO: Well, in our report, we did not
             comment on buffer, because we didn't think it was
             applicable. When you have a redevelopment plan that
             has [zero] setback lines, it's kind of hard to say you can
             build to the property line, but we want a buffer. We
             didn't deem it appropriate. We don't believe it's
             applicable what you're trying to do, in terms of saying

5
  As an incidental issue, we reject appellant's contention that Valetutto was not
sworn as a witness. The record for the first hearing on November 20, 2017
shows otherwise. We also reject appellant's claim that Valetutto was not
qualified to provide expert testimony or that he lacked sufficient personal
knowledge of the matters he addressed. See Concerned Citizens of Princeton,
Inc. v. Mayor & Council of Borough of Princeton, 370 N.J. Super. 429, 463–64
(App. Div. 2004) (finding no statutory requirement for such a witness to be
qualified as an expert to testify). Valetutto also clearly had personal knowledge
of the issues.


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                                        23
             there should be a buffer because of the proximity. Even
             though it was 2002 or so when I did the report, it's still
             – still what my intention was, and why we didn't bring
             it up in our report.

      Plaintiffs' expert planner, Thomas, testified to the contrary. Thomas

opined the Zoning Ordinance requires a landscaped ten-foot buffer with

adjoining residential properties. He noted that, by comparison, DeVimy had

requested several bulk variances and waivers for design standards that were in

the Land Development Ordinance, not the Redevelopment Plan, including

"driveway and drive aisle requirements, parking requirements, loading

requirements, other buffer fence and screening requirements and sign

requirements." He concluded that the buffer requirement was as applicable as

any of the other standards.

      Valetutto agreed that the Redevelopment Plan states that, if it does not

cover a standard, the Zoning Ordinance governs.            However, according to

Valetutto, "when you have zero setback with no differentiation as to whether it's

next to a residential, commercial or industrial tract . . . there is . . . nothing [in

the Plan] to indicate that we require a buffer for those setbacks."

      Appellant contends the "buffer" requirements are distinct from "setback"

requirements. Appellant maintains the "buffer" requirement of Section 53-

79(A)(5) is applicable to all zones and, because buffers are not "specifically

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                                        24
addressed" in the Redevelopment Plan, it plainly requires that the "Land

Development Ordinance shall apply."         Hence, this site required a ten-foot

landscaped buffer between the lot and an adjoining residential property.

      The trial court recognized that a "setback" is distinct from a "buffer zone."

It also accepted plaintiffs' argument that, because the Redevelopment Plan does

not address buffer zones, the Land Development Ordinance is applicable and

"some sort of buffer is required." However, the court interpreted the Land

Development Ordinance buffer zone requirement, specifically Section 53-

79(A)(5)(b), to permit a Planning Board to determine what kinds of buffer would

be appropriate and effective.      The court concluded the Planning Board

permissibly allowed DeVimy to construct a six-foot fence with the adjoining

property, that a fence was a permitted type of buffer under the Ordinance, and

therefore the fence satisfied the buffer requirement.

      Although we agree with the trial judge no ten-foot buffer was required

here, we do not subscribe fully to the court's reasoning. Section 53-79(A)(5)(b)

requires that at least half of a commercial/residential property line "shall" have

a ten-foot-wide buffer and, "[i]n addition," other buffer elements such as fences,

walls, or vegetation. To the extent it contemplates modifications to the buffer,

it does not suggest the ten-foot requirement is interchangeable with other types


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                                       25
of buffers, although, like any other structural feature, a variance could

presumably be granted. The notion that the Planning Board considered and

approved a buffer in the form of a higher fence cannot be squared with the

Board's written resolution. Although the Planning Board could have considered

and granted a variance for this requirement, it appears it determined there was

no need to do so.

      Where a land use provision is ambiguous, it is reasonable to look to the

legislative intent. Schad, 160 N.J. at 170. The Redevelopment Plan lists goals

that both support and conflict with a buffer zone requirement. As DeVimy 's

expert planner noted, one goal of the Plan is the expansion and development of

commercial areas in the zone. On the other hand, the Plan seeks to "minimize

any disruption or inconvenience to any of the residents" in the vicinity of the

Redevelopment Plan. The stated goals therefore do not resolve the issue.

      That said, an objective examination of the Plan – viewed in its context –

supports an interpretation that a buffer was not required. The map of the

Redevelopment Zone contained in the record shows it is a long, thin stretch of

properties along Broadway in South Amboy mostly surrounded by a residential

zone. Virtually all of the commercial developments in this Redevelopment Zone

would abut a residential property. It would be counterintuitive to permit zero-


                                                                       A-3744-18T1
                                     26
foot setbacks for properties in this zone, allowing development to occur up to

the front and side property lines, but simultaneously require a ten-foot buffer

zone for most, if not all properties, where "[n]o structure, activity, storage of

materials or parking of vehicles shall be permitted." Section 53-79(A)(5).

        To be sure, we are not bound by the views of a single town professional,

even the purported drafter of the Redevelopment Plan, as indicative of

legislative intent. Nevertheless, the Redevelopment Plan declares there are

zero-foot front and side setbacks, and does not distinguish between residential

and commercial uses, both of which are permitted within the Redevelopment

Zone.     Moreover, the zone envisions "residential over top of permitted"

commercial uses.       (Emphasis added).      On the whole, the Zone allows

overlapping residential and commercial uses, and is surrounded by a residential

zone, but still allows no front and side building setbacks. This does not logically

mesh with the imposition of a ten-foot commercial/residential buffer zone.

        Despite the omission of analysis in its written conclusions, the Planning

Board evidently concluded the buffer zone was not required. No Board members

raised the issue at the vote approving DeVimy's application. It is reasonable to

find the zero-setback requirement in the Redevelopment Zone was intended to

remove the buffer zone requirement. Hence, there was no error in the Board's


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                                       27
decision to not consider the issue in the application process. Consequently, we

affirm the Law Division's denial of relief on this ground, albeit for different

reasons than those articulated by the judge. Isko v. Planning Bd. of Livingston

Twp., 51 N.J. 162, 174-75 (1968) (appellate court may affirm judgment on

different grounds than set forth below); see also State v. Armour, 446 N.J. Super.

295, 310 (App. Div. 2016) (appellate court may affirm judgment on different

grounds than set forth below).

                                       B.

       Appellant contends the Board should have admitted into evidence a review

letter from 2001 for a proposed Dunkin' Donuts located on the same site as the

present application. 6 Appellant concedes that 2001 application predates the

2002 adoption of the Redevelopment Plan.

       Plaintiffs' counsel attempted to admit the 2001 application letter into

evidence during his examination of his expert planner.             The evidence

purportedly showed that in 2001, when the property was in a residential zone, a

Dunkin Donuts was proposed on the site and, as part of the application proc ess,

a buffer zone was required.




6
    Apparently, the Dunkin' Donuts project was never built.
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                                       28
      The Planning Board's attorney advised this 2001 letter should be excluded

because that application was for a use variance, not a bulk variance, because it

was seventeen years old and preceded the Redevelopment Plan, and because it

was prepared by a different Board planner. He concluded it would only confuse

issues for the Planning Board and was irrelevant to the current proposal,

particularly considering the Redevelopment Plan adopted the following year.

The Board Chairman agreed that the letter was irrelevant and did not admit it

into evidence.

      The trial court found that, because the Redevelopment Plan was not in

effect at the time of the 2001 Dunkin' Donuts application, it was reasonable to

exclude the document from coming into evidence. We agree.

      If the Redevelopment Plan had not been enacted, there is no question that

a buffer zone would have been required. Therefore, a development application

filed before the Redevelopment Plan existed merely states the obvious. It does

not help resolve the interplay between that Plan and the Land Development

Ordinance, and hence was reasonably excluded.

                                      C.

      Appellant maintains the application process was compromised because

the Planning Board imposed "unfair and arbitrary limitations" on its counsel's


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                                      29
ability to cross-examine DeVimy's experts and on his ability to present

witnesses. These limits allegedly deprived plaintiffs of a "fair and level playing

field" and in particular, they "could not fully explore the extent and impact of

the proposal's parking and traffic impacts." We disagree.

      Plaintiffs had more than a reasonably sufficient amount of time to present

their case and to examine their own witnesses and the opposing witnesses. The

Planning Board did not act arbitrarily in imposing reasonable time limitations in

this case that spanned several hearings. N.J.S.A. 40:55D-10(d); See also Sea

Girt, 45 N.J. 284–85 (holding procedures were not erroneous where they "did

not prevent the objectors from setting forth either their legal or factual

contentions"); Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 413

(App. Div. 1997) (upholding an application where the objectors "and their

attorney had full opportunity to express their views during the entire hea ring").

                                       D.

      Next, appellant contends the Planning Board failed to properly consider

"the relevant evidence and issues as to traffic congestion, unsafe conditions, and

severe traffic circulation issues arising from the proposed development. " We

disagree.




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                                       30
      Appellant argues there was "essentially unrebutted" evidence by its

experts that delivery trucks could not enter or exit the property without swinging

into oncoming traffic, that box trucks would block parking spaces while

deliveries were being made, and tractor trailer deliveries would entirely block

the parking area while deliveries were being made. Appellant further contends

that because their next-door convenience store already serves the community,

there is no benefit to the new proposed 7-11. Appellant also notes eight residents

spoke up in opposition to the plan. Appellant has argued the lack of a loading

zone at the 7-11 would "cause congestion and safety problems."

      The trial court concluded that both DeVimy and plaintiffs produced expert

testimony about traffic and parking issues with the proposed development and

that this was therefore a conventional case with "dueling experts." It noted

DeVimy's experts had introduced evidence that the parking space size and

distance from the building was safe and sufficient, the increased traffic flow

would be minimal, and that there was no need for a loading zone. Although

plaintiffs' experts disagreed with these findings, the trial court concluded there

was sufficient evidence to support the Planning Board's approval of the

requested variances and waivers.




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                                       31
      "Where the testimony before the board is in conflict, the board must

decide what the true facts are. The board has the choice of accepting or rejecting

the testimony of witnesses, and where reasonably made, such decision is

conclusive on appeal." Cox & Koenig, § 18-4.2; See also Sea Girt, 45 N.J. at

288 (1965) (same); Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment

of City of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009) (same, and citing

cases).

      Here, despite appellant's contention that the objector experts were

"essentially unrebutted," DeVimy and plaintiffs each introduced competing

expert testimony about the parking, traffic, and safety effects of the proposed

development.    The Board's written resolution summarized this testimony

presented at the hearings. The Board concluded that pedestrian use of the

property would be safe and efficient, that there would be minimal increased

traffic delays due to the new project, that the smaller parking spaces would have

a net positive benefit through reduced impervious coverage. It specifically

found DeVimy's experts more credible than plaintiffs'. We agree with the trial

court that there is enough evidence in the record for the Board to grant the

parking and traffic related variances.




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                                         32
      Appellant further argues DeVimy could have "eliminated or mitigated"

the need for variances with "a smaller building or a less intense use" and,

because they failed to explain why they did not explore these alternatives, it was

effectively arbitrary and in error to grant the application.       This is not a

requirement for granting a (c)(2) variance. Jacoby v. Zoning Bd. of Adjustment

of Borough of Englewood Cliffs, 442 N.J. Super. 450, 471 (App. Div. 2015);

Wilson, 405 N.J. Super. at 198. 7 Accordingly, there was no requirement that

DeVimy adopt a site plan that eliminated the need for variances or waivers and

no error by the Planning Board or trial court for failing to impose such a

requirement.




7
   The case that appellant cites in apparent support of its argument stands only
for the proposition that it is better to require applicants to modify proposals to
come into accordance with a zoning ordinance rather than reject the application
altogether. ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, 352 N.J.
Super. 166, 176–77 (App. Div. 2002) ("[I]ntensification of a permitted use is
more appropriately addressed by imposing appropriate conditions and
restrictions in connection with site plan approval, rather than by completely
barring the proposed use."). In fact, DeVimy did modify its initial proposal to
eliminate the requirement for certain variances and to accommodate Planning
Board concerns.
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                                       33
                                        E.

       Lastly, appellant argues the written resolution in support of DeVimy's

application was inadequate and lacked proper findings.                 We reject this

contention.

       The MLUL requires that a municipal board memorialize in writing its

"findings of fact and conclusions based thereon in each decision on any

application for development." N.J.S.A. 40:55D-10(g). "[T]he 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." New York SMSA v. Bd. of Adjustment of Twp. of Weehawken,

370 N.J. Super. 319, 333 (App. Div. 2004). A "resolution cannot consist of a

mere    recital   of   testimony   or        conclusory   statements     couched     in

statutory language." Id. at 332-33.

       As the trial court noted, the Planning Board initially submitted a written

resolution which was remanded for further application after the parties agreed it

was inadequate. The Board then submitted a revised and amplified resolution

approving the application.




                                                                              A-3744-18T1
                                         34
      Appellant contends the revised decision is inadequate because it contains

conclusory statements in favor of the application and the required variances.

Specifically, appellant argues (1) it inadequately explains why the impervious

coverage variance should be granted; (2) it "only vaguely" discusses the

variance for smaller parking spaces; (3) it does not make specific findings about

the loading area variance; (4) it does not make specific findings about the

parking space distance requirement; and (5) does not explain its finding that

there is "adequate parking."

      The trial court found the revised resolution was sufficiently detailed. In

the oral opinion, the court listed the findings that support this conclusion. First,

the resolution described how changes to the application rendered the variance

for number of parking spaces moot. The court found the decision to grant the

reduced parking space size was supported by the record, citing the testimony of

the applicant and objector experts. The court also noted there was testimony

that smaller parking spaces would allow more green space on the property,

providing a benefit by reducing impervious coverage. Finding number ten,

which declared that the variances for fence height, loading zone, and park ing

distance were proper because they resulted in "more efficient use of the land[,]"

was supported by the record, because these changes again allowed for a reduced


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                                        35
impervious surface area. The court also noted there was testimony described in

the written resolution that a loading zone was not necessary for a store of this

size. The court found that objector testimony that box trucks would have trouble

fitting into parking spaces was mere "conjecture." The court concluded that the

resolution's statement that "pedestrian use is safe and efficient" was supported

by evidence in the record from DeVimy's expert and was enough to grant the

parking space distance variance. He also noted that there was no testimony to

the contrary.

      On the whole, the trial court concluded the revised resolution's findings

were supported by the record, and that the resolution specifically noted the

Board found DeVimy's experts more credible than those of the plaintiffs. The

Planning Board adequately described benefits from the proposed development

and variances, specifically a more efficient use of the property and reduced

impervious coverage.

      As the trial court recognized, the revised resolution could be better

organized in laying out its approval of the overall application and the specific

variances and waivers requested. Nevertheless, given the strong deference

accorded to planning boards, Sea Girt, 45 N.J. at 296, the record provides

support for the Board's decision to approve the proposal and grant the requested


                                                                        A-3744-18T1
                                      36
variances. DeVimy's proofs, as summarized in the written resolution, support

the findings that the variances would advance the public goals of reduced

impervious coverage and promote a more efficient use of the property without

substantial detriment. Kaufmann, 110 N.J. at 565 (1988) ("A c(2) variance

stands if, after adequate proofs are presented, the board without arbitrariness

concludes that the harms, if any, are substantially outweighed by the benefits.").

      All other arguments raised on appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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