                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0264-17T1
                                                                     A-0339-17T1

ST. PAUL'S OUTREACH, INC.,

          Plaintiff-Respondent,

v.

BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF SOUTH
ORANGE VILLAGE and THE
TOWNSHIP OF SOUTH ORANGE
VILLAGE,

          Defendants-Appellants.


                   Argued November 13, 2018 – Decided January 28, 2019

                   Before Judges Gooden Brown and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-1183-16.

                   Patrick J. Dwyer argued the cause for appellant Board
                   of Adjustment of the Township of South Orange
                   Village (Nusbaum, Stein, Goldstein, Bronstein & Kron,
                   attorneys; Patrick J. Dwyer, on the briefs).
            Michael J. Martelo argued the cause for appellant
            Township of South Orange Village (Post, Polak,
            Goodsell & Strauchler, PA, attorneys; Steven C.
            Rother, of counsel; Michael J. Martelo, on the briefs).

            Elaine S. Berkenwald argued the cause for respondent
            (Lavin & Associates, PC, attorneys; Elaine S.
            Berkenwald, on the briefs).

PER CURIAM

      These two appeals, calendared back-to-back and consolidated for

purposes of our opinion, arise out of an action in lieu of prerogative writs filed

by plaintiff St. Paul's Outreach, Inc. against defendants Board of Adjustment of

the Township of South Orange Village (Board) and the Township of South

Orange Village (Township). The Law Division nullified the Board's denial of a

conditional use variance that plaintiff sought for its residential property pursuant

to N.J.S.A. 40:55D-70(d)(3) (d(3) variance).        Having concluded plaintiff's

presentation to the Board was incomplete and thereby prevented the Board from

properly considering the imposition of reasonable conditions to grant the

variance, we vacate the Law Division's order and remand to the Board for a

limited rehearing.




                                                                            A-0264-17T1
                                         2
                                          I.

      Because we conclude the trial court erred in its analysis, we commence

our review with a discussion of the relevant legal principles to give context to

the trial court's decision and the Board's denial of plaintiff's applicati on.

      "Our standard of review for the grant or denial of a variance is the same

as that applied by the Law Division."          Advance at Branchburg II, LLC v.

Branchburg Twp. Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013).

Specifically, "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).

We grant zoning boards "wide latitude in the exercise of delegated discretion"

due to "their peculiar knowledge of local conditions[.]" Price v. Himeji, LLC,

214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268,

296 (1965)); see also Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 167

(1992).

      Accordingly, we presume a board's factual determinations to be valid, and

we will only reverse if its decision is arbitrary, capricious, or unreasonable.

Kane Props., 214 N.J. at 229. That decision must be made on the basis of the

record before the board, Kramer, 45 N.J. at 289, and "not on the basis of a trial


                                                                                 A-0264-17T1
                                          3
de novo, by affidavit or otherwise, before the Law Division." Antonelli v.

Planning Bd. of Waldwick, 79 N.J. Super. 433, 441 (App. Div. 1963). Matters

outside the record of proceedings before the board may not be considered by the

court. See Adams v. DelMonte, 309 N.J. Super. 572, 583 (App. Div. 1998).

      The scope of judicial review is limited "to determin[ing] whether the board

could reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J.

476, 485 (1987). Therefore, a court generally "will not substitute its judgment

for that of a board 'even when it is doubtful about the wisdom of the action.'"

Cell South of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172

N.J. 75, 81 (2002); see also Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of

Adjustment, 152 N.J. 309, 327 (1998). "[C]ourts ordinarily 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). The Board's conclusions of law, however, are subject to de

novo review. Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102

(2011).

      The burden is on the challenging party to demonstrate that the board's

decision was arbitrary, capricious or unreasonable. New Brunswick Cellular


                                                                           A-0264-17T1
                                         4
Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999).

We give even greater deference to a planning board's decision to deny a variance.

Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361

N.J. Super. 22, 38 (App. Div. 2003) (citing Northeast Towers, Inc. v. Zoning

Bd. of Adjustment of W. Paterson, 327 N.J. Super. 476, 494 (App. Div. 2000));

Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J.

Super. 177, 199 (App. Div. 2001). "That heavier burden requires the proponent

of the denied variance to prove that the evidence before the board was

'overwhelmingly in favor of the applicant.'"      Nextel, 361 N.J. Super. at 38

(quoting Northeast Towers, 327 N.J. Super. at 494).

      Pertinent to this appeal, the basic principles governing a conditional use

variance are set forth in N.J.S.A. 40:55D-70(d), which grants a board of

adjustment the power to "[i]n particular cases for special reasons, grant a

variance to allow departure from [zoning] regulations . . . to permit: . . . (3)

deviation from a specification or standard . . . pertaining solely to a con ditional

use." As our Supreme Court observed in Coventry Square, Inc. v. Westwood

Zoning Board of Adjustment, 138 N.J. 285, 287 (1994), "A variance for a

deviation from a condition allows the applicant to engage in a conditional use




                                                                            A-0264-17T1
                                         5
despite the applicant's failure to meet one or more of the conditions: It is not the

use but the non-compliance with the conditions that violates the ordinance."

      However,

             No variance or other relief may be granted . . . including
             a variance or other relief involving an inherently
             beneficial use, without a showing that such variance or
             other relief can be granted without substantial
             detriment to the public good and will not substantially
             impair the intent and the purpose of the zone plan and
             zoning ordinance.

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

These statutory provisions embody what are routinely referred to as the positive

and negative criteria that must be shown by an applicant to secure a use variance.

Smart SMR,152 N.J. at 323; Scholastic Bus Co. v. Zoning Bd. of Fair Lawn,

326 N.J. Super. 49, 56 (App. Div. 1999).

      As explained by the Court in Sica:

             The statute requires proof of both positive and negative
             criteria. Under the positive criteria, the applicant must
             establish "special reasons" for the grant of the variance.
             The negative criteria require proof that the variance
             "can be granted without substantial detriment to the
             public good" and that it "will not substantially impair
             the intent and the purpose of the zone plan and zoning
             ordinance."

             [127 N.J. at 156.]



                                                                            A-0264-17T1
                                         6
      Where, as defendants acknowledge here, the proposed use is inherently

beneficial or "serves the public good," the positive criteria element is satisfied.

Saddle Brook Realty v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388

N.J. Super. 67, 76 (App. Div. 2006); House of Fire Christian Church v. Zoning

Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 535 (App. Div. 2005)

(recognizing use of a church or house of worship "is an inherently beneficial use

of the land"). "[A]s an 'inherently beneficial' use, the burden of proof of an

applicant for a use variance is 'significantly lessened' with respect to both the

positive and negative criteria." Salt & Light Co. v. Willingboro Twp. Zoning

Bd. of Adjustments, 423 N.J. Super. 282, 287 (App. Div. 2011) (quoting Smart

SMR, 152 N.J. at 323). An inherently beneficial use is presumed to satisfy the

positive criteria, and it need not satisfy an "enhanced quality of proof" for the

negative criteria, as set forth in Medici v. BPR Co., 107 N.J. 1, 21-24 (1987).

Salt & Light Co., 423 N.J. Super. at 287; see also TSI E. Brunswick, LLC v.

Zoning Board of Adjustment of E. Brunswick, 215 N.J. 26, 43 (2013) (relaxing

the standard of proof for the negative criteria in an application for a conditional

use variance).

      Despite the less demanding standard of proof, a proposed variance for an

inherently beneficial use is not automatically granted. Sica, 127 N.J. at 165-66.


                                                                           A-0264-17T1
                                        7
In Sica, the Court outlined the evaluative process to determine whether the

proposed inherently beneficial use satisfies the negative criteria:

            First, the board should identify the public interest at
            stake.

            Second, the [b]oard should identify the detrimental
            effect that will ensue from the grant of the variance.

            Third, in some situations, the local board may reduce
            the detrimental effect by imposing reasonable
            conditions on the use.

            Fourth, the [b]oard should then weigh the positive and
            negative criteria and determine whether, on balance, the
            grant of the variance would cause a substantial
            detriment to the public good.

            [Ibid.]

"This balancing, '[w]hile properly making it more difficult for municipalities to

exclude inherently beneficial uses . . . permits such exclusion when the negative

impact of the use is significant.'" Id. at 166 (alterations in original) (quoting

Baptist Home of S. Jersey v. Borough of Riverton, 201 N.J. Super. 226, 247

(Law Div. 1984)).




                                                                         A-0264-17T1
                                        8
                                        II.

      Applying those legal standards here, we turn to the pertinent facts

presented to the Board.

      Plaintiff is a national organization affiliated with the Roman Catholic

Church. In September 2014, plaintiff purchased property known as lot 12, block

601 on the Township's tax map. The property is located in the Township's RA-

60 residential zoning district, which permits single-family homes, public

buildings and public schools. Places of worship are permitted conditional uses

within the district. The neighborhood is characterized as "historic."

      The subject property is an irregularly-shaped lot, slightly more than one

acre in size, and is surrounded by twenty-two1 single-family homes. A two-

story dwelling is situated in the center of the lot. The dwelling contains fourteen

bedrooms and a twenty-four seat chapel. Plaintiff's immediate predecessor,

Salesian Society, Inc. (Salesian), added the chapel and ten bedrooms in

November 1991. Salesian, a vocational organization affiliated with the Roman

Catholic Church, used the property for worship, formation and occasional


1
  The record is unclear regarding the exact number of homes surrounding the
subject property. In its merits brief and resolution, the Board states there are
twenty-two surrounding homes, whereas the Township's merits brief indicates
there are nineteen surrounding homes. Plaintiff's brief does not mention the
number of surrounding homes.
                                                                           A-0264-17T1
                                        9
weekend retreats. During the early 1990s, approximately ten seminarians lived

at the property, but at the time plaintiff purchased the lot in 2014 only a few

priests were in residence.

      The dwelling's side and rear setbacks do not conform to the Township's

requirements for a conditional use variance for religious use. In particular, the

minimum requirement for the side yard setback is 30.3 feet while the existing

side yards are 24.8 and 29.2 feet; and the minimum requirement for the rear yard

setback is 89.7 2 feet while the existing rear yard setback is 84 feet. Despite these

deficiencies, the Township's then zoning officer issued building permits and a

certificate of occupancy to Salesian for the chapel and additional bedrooms,

without requiring Salesian to apply for a d(3) variance.




2
  The Board maintains the minimum requirement is 179.4 feet pursuant to the
Township's ordinance that requires doubling of the rear setback when a
conditional variance is sought for religious use. § 92-210(D) (codifying
conditional uses for "[c]hurches, synagogues, religious buildings and nonprofit
schools."). However, that section of the ordinance applies when "such use [is]
located in the B-1 and B-2 [z]ones[,]" which permit two-family dwellings. Here,
the property is located in the "RA-60" residential zone, which is comprised of
single-family dwellings. It is unclear from the record how the Board determined
the doubling requirement here. Indeed, the Board's proofs are conflicting in this
regard. For example, an April 2, 2015 memorandum of the Board's planner
indicated the rear setback "shall be two times . . . the rear yard requirement for
the zone[,]" but specifically listed the requirement as "89.7 feet[,]" i.e., the rear
setback was not doubled to 179.4 feet.
                                                                             A-0264-17T1
                                        10
      Plaintiff seeks to use the property for "residential religious" purposes. In

particular, local male undergraduate students, who are interested in expanding

their Catholic faith with the potential to pursue vocations in the church, reside

in the home. Residents participate in Bible study and prayer on the premises.

Non-resident missionaries drive to the property weekly to participate in prayer.

In addition, plaintiff holds bi-monthly formation meetings, attended by

approximately thirty-five to forty people, on Monday nights from 8:30 p.m. to

10:00 p.m.    Plaintiff's administrative activities are also conducted on the

premises. The nature and extent of those activities were not fully developed in

the record before the Board.

      Prior to purchasing the property, plaintiff asked the Salesians to apply for

a variance. The Salesians denied the request claiming, "[W]e[ ha]ve been here

[twenty]-somewhat years, we[ ha]ve never done that, it[ i]s going to raise more

questions . . . ." Soon after plaintiff purchased the property, plaintiff applied to

the Board for a d(3) variance and a design waiver for driveway width. In her

cover letter enclosing the application, plaintiff's counsel acknowledged the non -

conforming side and rear setbacks on the property, but stated that the

deficiencies were "truly minimal." The application indicated there would be

"[n]o change to [the] property. The use is similar to the previous [owner's] use


                                                                            A-0264-17T1
                                        11
as a religious residence with a private chapel for prayer and worship and bible

study." Notably, plaintiff's application did not seek relief for a pre-existing non-

conforming use. See N.J.S.A. 40:55D-70(d)(2). Neither plaintiff's application

nor its public notice disclosed that plaintiff intended to use the property for

administrative offices. Instead, plaintiff's public notice provided, in pertinent

part:

                   The application proposes a residence for Catholic
             missionaries with programs to further the religious
             mission of St. Paul's Outreach; creating a faith-filled
             environment, instructing college students in prayer,
             bible studies, evangelizing, and preparing students in
             the renewal of authentic Catholic life. . . . The proposal
             requires a conditional use variance for side and rear
             yard setbacks along with such variances and/or waivers
             that presently exist or that may be necessary for the
             development including parking. The proposal includes
             the use of an existing chapel as well [as] residential use.

        The Board heard plaintiff's application on three non-consecutive days

between April 7, 2015 and June 1, 2015. Plaintiff presented the testimony of

two experts: Joseph Staigar, a licensed professional traffic engineer; and

Kathryn Gregory, a licensed professional planner. Senior Mission Director Ed

Moccia, Mission Leader Joseph Buganski, and Brother Judge LaSota also

testified on plaintiff's behalf. Numerous local residents attended the hearings as

objectors and questioned plaintiff's witnesses. The Board did not call any


                                                                            A-0264-17T1
                                        12
witnesses, but John Lopos, a local resident represented by counsel, and Gordon

Gemma, his licensed professional planner, testified in opposition to the

application. The Board also considered documentary evidence, including the

expert reports of applicant and the objectors, and memoranda and comments of

the Board's planner, Heyer, Gruel and Associates.

      At the conclusion of its meeting on October 6, 2015, the Board voted to

deny plaintiff's application.    Prior to the issuance of the Board's written

resolution, plaintiff's counsel submitted a request for reconsideration of the

Board's decision.    Plaintiff argued that the Board failed to consider "any

conditions that would ameliorate any adverse impact."

      Specifically, although plaintiff was willing to relocate its large formation

meetings to Seton Hall University (SHU), plaintiff maintained its "[h]ousehold

[p]rogram requires that [its] missionaries have staff meetings, prayer, and rooms

for administrative work at the residence." Because many of the missionaries are

not SHU students, the "smaller group meetings [could not] be hosted at [SHU]."

Further, plaintiff's religious mission "is to inculcate religious values in a home

setting." Plaintiff claimed "[t]he Board's denial deprives . . . it[s] right to free

expression of religion."




                                                                            A-0264-17T1
                                        13
      During its January 1, 2016 meeting, the Board summarily denied

plaintiff's application for reconsideration. Thereafter, the Board memorialized

its findings and decision in a sixteen-page resolution.           The resolution

summarized the testimony of the witnesses, the arguments of counsel and the

objectors, and set forth the Board's findings of fact and conclusions of law.

      Importantly, the Board referenced the testimony of plaintiff's witnesses

regarding the proposed use of the property. The Board recognized plaintiff's

"four core elements" in paragraph 24 of its resolution:

            (i) The residential element whereby participants share
            a house and commit to living together and following
            Roman Catholic teachings, sharing chores, sharing
            expenses, praying each morning, eating dinner together
            at least twice per week and undertaking Bible study;

            (ii) the faith formation program where twice per month
            groups of between [thirty-five to forty] non-resident
            students meet at the house on Monday evenings from
            8:30 p.m. to 10:00 p.m.;

            (iii) A "Fan Into Flame" religious retreat which occurs
            annually offsite; and

            (iv) The School of Evangelization which occurs offsite.

Notably, the Board referenced the lack of testimony regarding plaintiff's "use

[of] the residence as an administrative office for [its] statewide activities." The

Board described the "[t]estimony on this use []as both vague and scant."


                                                                           A-0264-17T1
                                       14
      Further, the Board analyzed the issuance of a d(3) variance pursuant to the

Sica test, finding:

             29.        In this case [plaintiff] proposes a
             religious/residential use which furthers religious
             freedom, an important public interest. However, the
             detriments to the neighborhood and zone plan would be
             more than substantial. During the hearing [plaintiff]'s
             attorney referred to [plaintiff's] website. The Board
             takes administrative notice that the website identifies
             the house as the "New Jersey Mission Center." A
             "Mission Center" is defined in [plaintiff]'s literature as
             "an operational hub that establishes and supports
             [plaintiff's] [c]hapters within a geographic region."
             ([Plaintiff's] 2014 Annual Report)              [Plaintiff]
             acknowledged that the uses to occur on the site were
             more than the residential program for residents. The
             uses also included faith formation meetings on Monday
             evenings which included non-residents and could result
             in [thirty-five to forty] people at the house. On Monday
             mornings the resident [m]issionary meets with seven
             non-resident [m]issionaries in the chapel. Reference
             was made to use of the house as administrative offices
             for [plaintiff], however, exact details of such use were
             never provided. As [plaintiff]'s New Jersey Mission
             Center[,] it can be expected that additional
             administrative office uses would occur. Each of these
             gatherings would bring pedestrian and vehicular traffic
             to the site which already has an existing problem with
             cars parking in the front yard in violation of the
             Ordinance. Applicant did not propose to provide
             additional parking in the rear stating that it believed it
             was not a suitable location. Whether parking in the rear
             yard could be configured and buffered in a manner not
             entirely inconsistent with the double rear yard setback
             requirement is unknown as it was not part of the
             application.

                                                                           A-0264-17T1
                                        15
30. . . . In [plaintiff's request for reconsideration it]
agreed to the following conditions: (i) no church
service open to the general public and [plaintiff] agrees
not to use the site for a homeless shelter, house for
abused women and/or soup kitchen; (ii) the number of
residents with cars would be limited to the number of
parking spaces; (iii) no large meetings starting after 10
p.m. on weekdays; and (iv) [plaintiff would] plant
[thirty-two] trees along the perimeter of the property
. . . . The Board notes that previously during the hearing
[plaintiff] had agreed to limit the number of residents
at the premises, but that limitation was withdrawn.

31. On balance, the Board finds that the conditions
proposed are insufficient to overcome the substantial
detriments caused by the proposed use. The property is
located in a residential zone where religious uses are
permitted but only if they meet certain conditions. In
this case[, plaintiff] proposes to locate its New Jersey
Mission Center in the midst of a residential
neighborhood on a lot which does not meet the setback
requirements, especially for the rear yard, or have
sufficient parking. There is an existing parking
shortfall with [four] spaces existing.         Applicant
proposes to provide [eleven] parking spaces by using
the two car garage (which is currently filled with
belongings and not used for parking) and widening the
driveway to provide additional parking along its sides.
Two more spaces would be carved out to the right side
of the driveway in a cutout. The Ordinance does not
allow widening the driveway or parking in the front
yard. [Plaintiff] never fully detailed the extent of its
administrative office use at the site but headquartering
[plaintiff]'s New Jersey offices in this home will attract
even more visitors and parking. The Board finds that
on balance the detriments outweigh the benefits of the
use at this location.
[Emphasis added.]

                                                             A-0264-17T1
                           16
      Thereafter, plaintiff filed a four-count complaint in lieu of prerogative

writs in the Law Division against both defendants, alleging the Board: (1) acted

arbitrarily, capriciously and unreasonably; (2) failed to balance the positive and

negative criteria for the variance; (3) was estopped from denying its use of a

chapel by issuing permits and certificates of occupancy to Salesian; and

(4) violated the Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. § 2000cc to 2000cc-5.

      Following a hearing on August 22, 2017, the trial court issued a terse oral

decision, reversing the Board's decision and granting plaintiff's application f or

a d(3) variance, without imposing any conditions on plaintiff's use of the

property. In doing so, the court granted relief under all of plaintiff's causes of

action.

      Specifically, in addressing the Sica factors, the court recognized plaintiff

"is a religious organization, which obviously is a positive good." Finding there

was "no difference" between the prior use of the property by the Salesians and

the current use by plaintiff, the court did not find a detrimental effect in granting

the variance.    The court further determined plaintiff's proposed driveway

expansion for additional parking spaces would not have a detrimental effect,

referencing Staigar's "unrefuted" opinion that traffic would not be materially


                                                                             A-0264-17T1
                                        17
affected.   Notably, the court found reasonable conditions on the use were

unnecessary "as long as the use continues to the use that it[ has] been up to this

point."

      Further, the trial court determined the Board was estopped from denying

the d(3) variance based on Salesian's prior use. Citing Eltrym Euneva, LLC v.

Keansburg Planning Board of Adjustment, 407 N.J. Super. 432 (Law. Div.

2008), the court observed the "defendant [in Euneva] was estopped from

denying the plaintiff the right to [non-]conforming residential use, based on the

prior issu[ance] of a [c]ertificate of [o]ccupancy." The court then determined

Euneva "falls clearly on the four corners of this case, and clearly the application

should be granted on the estoppel c[ount]." Specifically,

             [It has] not been disputed that prior building permits
             were issued . . . and that a prior [c]ertificate of
             [o]ccupancy was issued by the [Township]. It may
             have been [twenty-five] plus years ago, however the
             [Township] stuck with [its] decision previously,
             whether in fact the inspector clearly [did not] pick up
             on the fact that the side yard setbacks and the front and
             rear setbacks were not appropriate this [c]ourt finds [it
             is] of no moment. [The Township] waived that
             particular issue, and it was never pursued until this
             particular application occurred. And clearly I find it
             arbitrary and capricious and unreasonable that in fact
             [twenty-five] plus years later, all of [a] sudden they
             found that the requests should be denied based upon a
             minor issue with regard to the setbacks. So this [c]ourt
             does not find that the argument is persuasive.

                                                                           A-0264-17T1
                                       18
      Finally, without making findings of fact and conclusions of law, the trial

court initially determined plaintiff did not meet its burden of proof under its

RLUIPA count, then determined the issue was moot because the court granted

plaintiff's application under the first three counts of its complaint. Nonetheless,

the court again reversed course and determined it "d[id not] find a compelling

government interest here." This appeal followed.

      On appeal, defendants primarily contend the trial court erred because the

Board's denial of plaintiff's d(3) application was adequately supported by its

factual findings; plaintiff failed to establish good faith reliance on Salesian's

prior use of the property; and the Board's decision did not substantially burden

plaintiff's religious freedom and, as such, did not violate RLUIPA. They also

contend plaintiff failed to fully disclose the nature and extent of its

administrative functions. In sum, defendants seek reversal of the trial court's

decision and order. In the alternative, they claim a remand to the Board is

necessary to further clarify how the property will be utilized.




                                                                           A-0264-17T1
                                       19
                                       III.

      Adhering to our limited scope of review, we conclude the trial court

inexplicitly substituted its judgment in reversing the Board's decision. Cell

South, 172 N.J. at 81.

      Initially, we consider the trial court's determination that the Board's

decision was arbitrary, capricious and unreasonable in failing to properly assess

the Sica factors. Our review of the record reveals that the Board was hampered

by an incomplete and unclear presentation of plaintiff's use of the property and

ameliorating conditions. Without a fully-developed record regarding plaintiff's

use and conditions, the trial court incorrectly determined there was "no

detriment" here.    Indeed, the Board recognized those deficiencies in the

concluding paragraph of its resolution:

            37. Whether an alternate proposal for an administrative
            office use with (i) a more fully detailed description of
            the proposed limited administrative office use
            including the number of persons involved, the type and
            extent of administrative activities, and the necessity of
            this use on-site, (ii) the exact number and location of
            parking spaces, the number of residents with cars, and
            the anticipated parking demand for such proposed use,
            (iii) a more detailed landscape buffering plan, and (iv)
            addressing drainage concerns raised during the hearing,
            would be acceptable is not before the Board at this time
            and is undecided.



                                                                         A-0264-17T1
                                      20
      We agree and accordingly, we vacate the court's order pertaining to counts

one and two of plaintiff's complaint and remand to the Board to conduct a

rehearing to consider any uses and conditions that were not fully detailed during

the hearings. In doing so, we also recognize that some of those uses and

conditions were raised during plaintiff's presentation at the hearing and in its

reconsideration application. Moreover, the objectors posed specific questions

regarding the use of the property as plaintiff's New Jersey Mission Center.

Plaintiff sought to clarify and supplement the conditions that could be imposed

on its use, but the Board opted not to consider those suggestions. We conclude

the Board erred in declining to consider that new information, and that a remand

is necessary for this limited purpose.      Additionally on remand, defendants

should determine the applicability of the doubling provision set forth in § 92 -

210(D) to plaintiff's d(3) application, and that section's significance, if any, to

conditions that could alleviate the negative criteria.

      Turning to count three of plaintiff's complaint, the court's decision, in

large part, was based on the mistaken belief that the property was a pre-existing

non-conforming use. However, in its application for a d(3) variance, plaintiff

did not seek relief as a pre-existing non-conforming use, as candidly

acknowledged by plaintiff's counsel during her summation to the Board: "I [a]m


                                                                           A-0264-17T1
                                       21
not asking you to find under section 68 3 that this was a prior non-conforming

use." Accordingly, this issue was not before the Board, and the trial court erred

in reversing the Board on that basis.

       In its decision, the court also credited plaintiff's estoppel argument, which

was not raised before the Board. That analysis was similarly improper. See

Kramer, 45 N.J. at 289; Adams, 309 N.J. Super. at 583.

       Moreover, estoppel is invoked against a municipality "only in very

compelling circumstances, where the interests of justice, morality and common

fairness dictate that course." Maltese v. Twp. of N. Brunswick, 353 N.J. Super.

226, 244-45 (App. Div. 2002). In essence, a municipality can be estopped if

"the circumstances involve reliance on a good faith act of an administrative

official, within the ambit of that official duty, which constitutes an erroneous

and debatable interpretation of an ordinance."          Scardigli v. Borough of

Haddonfield Zoning Bd. of Adjustment, 300 N.J. Super. 314, 319-20 (App. Div.

1997). Good faith reliance by the party claiming estoppel is necessary. Grasso

v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 47-48 (App. Div. 2004)

(recognizing that although it is rarely invoked, estoppel may be enforced if a

property owner makes "substantial expenditures in good faith reliance on a


3
    N.J.S.A. 40:55D-68.
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                                        22
permit that was issued because of a municipal official's erroneous . . .

interpretation of the zoning ordinance").

      We are not persuaded by the trial court's reliance on Euneva to support its

decision that the Board was estopped from denying the variances requested here.

In Euneva, the Law Division determined the defendant borough was estopped

from enforcing an ordinance against the plaintiff, who built an addition to their

home, where the borough's building inspector failed to recognize a deficiency

in a side yard setback. 407 N.J. Super. at 445-46. In finding the plaintiff

reasonably relied on the building inspector's mistake, the court found the

plaintiff relied on the borough's documents when deciding to purchase the

property, and that the plaintiff sought multiple permits requiring borough

inspections during the renovation process. Id. at 445. The borough's inspectors

even commented that they were impressed with the improvements. Ibid.

      Conversely, here, the trial court did not determine plaintiff reasonably

relied on the issuance of building permits to Salesian.          Indeed, prior to

purchasing the property, plaintiff specifically requested that Salesian obtain a

variance, presumably recognizing the setbacks were non-conforming. Further,

by the time Salesian sold the property to plaintiff, its use was markedly different




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from its past use, limited to a few priests residing at the premises. Accordingly,

we find the Board was not estopped from denying the variance.

      Finally, we consider plaintiff's fourth cause of action. RLUIPA sets forth

the factors to be considered when determining whether the implementation or

enforcement of a land use regulation imposes a substantial burden on the

exercise of religion:

            No government shall impose or implement a land use
            regulation in a manner that imposes a substantial
            burden on the religious exercise of a person, including
            a religious assembly or institution, unless the
            government demonstrates that imposition of the burden
            on that person, assembly, or institution –

            (A) is in furtherance of a compelling governmental
            interest; and

            (B) is the least restrictive means of furthering that
            compelling governmental interest.

            [42 U.S.C. § 2000cc(a)(1).]

      To demonstrate a violation of the RLUIPA, a plaintiff must make a prima

facie showing that the land use regulation imposed a substantial burden on

religious exercise. See House of Fire, 379 N.J. Super. at 544-47. When that

burden is met, the burden shifts to the local government to demonstrate that the

land use regulation furthers a compelling governmental interest and is the least

restrictive means of furthering that compelling governmental interest. Id. at 545.

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                                       24
      In this action in lieu of prerogative writs, presumably, the parties did not

engage in discovery nor seek a plenary hearing. R. 4:67-5. Nonetheless, the

trial court summarily concluded defendants violated RLUIPA, without engaging

in any meaningful analysis under the statute or governing case law. We decline

to do so here, where plaintiff's application will be reconsidered by the Board.

See House of Fire, 379 N.J. Super. at 547.

      In sum, the trial court's oral opinion contained no analysis of whether the

Board's conclusions were supported by the record, and did not attempt to relate

the facts as found by the Board or to establish why those facts were unsupported

by the record. We are therefore satisfied, after carefully reviewing the record,

that the trial court essentially, and mistakenly, replaced the Board's judgment

with its own. See Northeast Towers, 327 N.J. Super. at 495-96.

      Reversed and remanded to the Board for further proceedings consistent

with this opinion. We do not retain jurisdiction.




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