                        NOT FOR PUBLICATION WITHOUT THE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-1853-15T4
                                                  A-4780-15T4

JULIO C. NUNEZ,

        Plaintiff-Appellant,

v.

ENGEL INVESTMENTS, LLC, ENGEL
GARDENS, LLC, and PLANNING BOARD OF
THE CITY OF ELIZABETH, NEW JERSEY,

     Defendants-Respondents.
_______________________________

              Argued April 5, 2017 – Decided          June 6, 2017

              Before Judges Manahan and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket Nos. L-
              3712-14 and L-3633-15.

              Fred R. Gruen argued the cause for appellant
              (Gruen & Goldstein, attorneys; Mr. Gruen, on
              the briefs).

              Scott E. Becker argued the cause                     for
              respondent Engel Investments, LLC.

              Patrick J. McNamara argued the cause for
              respondent Planning Board of the City of
              Elizabeth, New Jersey (Scarinci & Hollenbeck,
              LLC, attorneys; Mr. McNamara, on the briefs).

PER CURIAM
     In    these    consolidated      appeals,    plaintiff      Julio      C.   Nunez

appeals from orders entered by the Law Division affirming the

decisions of defendant Planning Board of the City of Elizabeth

(Board) for construction of apartments located on two separate

lots.     In light of the Law Division judge’s thorough and well-

reasoned decisions, and our deferential standard of review, we

affirm.

     Defendants Engel Investments, LLC, (Engel Investments) and

Engel    Gardens,    LLC,    (Engel     Gardens)       submitted     two    separate

applications to the Board seeking preliminary and final site plan

approval to develop properties located at 650-656 Westfield Avenue

in the City of Elizabeth (Property I) and 618-630 Westfield Avenue

in the City of Elizabeth (Property II).                    The application for

Property I included several bulk variances.                    The proposed site

plan for Property II did not require any variances.

     Property I and Property II are located in an area governed

by the R-3 multi-family zone under the Land Use Development

Ordinance of the City of Elizabeth (LDO), where multi-story, multi-

family    residential       development      is   a    permitted     use.        After

defendants'    submissions,       the     Board       deemed   the   applications

complete and held public hearings on July 10, 2014, for Property

I, and on July 23, 2015, for Property II.



                                         2                                   A-1853-15T4
                                          I.

     At the July 10, 2014 hearing for Property I, the Board heard

testimony    from    Samuel      Engel,     the      managing    member    of     Engel

Investments.       Engel testified that the development of Property I

involved the merger of three parcels, demolition of the existing

structures,    and    the     construction        of    a    multi-story    building

containing thirty-two residential units.                     Engel addressed the

number of proposed available parking spaces and acknowledged the

need to provide new curbs, sidewalks and trees along the frontage

of Property I.

     Anthony       Kurus,    a   licensed       professional      engineer,          also

testified.    Kurus provided the Board with a detailed review of the

proposed    site    plan,     including        the    landscaping,     storm      water

management, and means of access and egress.                   Kurus testified that

Engel Investments would address and satisfy various conditions

articulated in the June 12, 2014 report by Victor E. Vinegra, the

Board planner.

     James    R.    Guerra,      a   licensed        architect   and   professional

planner,    testified       relative   to      the    bulk   variances.         In    its

application, Engel Investments sought four variances from the

requirements of the LDO.             First, the LDO required a rear yard

setback of fifty feet; the development proposed a rear yard setback

of fifteen feet.       Second, the LDO required a maximum impervious

                                          3                                     A-1853-15T4
coverage of sixty percent; the development proposed a maximum

impervious        coverage    of     approximately           seventy-eight     percent.

Third, the LDO required a maximum permitted height in the R-3

multi-family zone of thirty-five feet; the development proposed a

height    of      approximately      thirty-eight           feet.    Fourth,    the      LDO

required a minimum of fifty percent of the total open space be

exterior lawn; the development proposed for no lawn.

       After Guerra's testimony, plaintiff's counsel made an opening

statement         to   the   Board    and       cross-examined        the    witnesses.

Specifically,          plaintiff's    counsel         questioned     Engel    about      the

amount of proposed parking and questioned Guerra about the bulk

variances sought by Engel Investments.                      After plaintiff's counsel

rested, the Board opened the meeting.                  Some citizens in attendance

expressed their concerns over the project.

       The Board concluded the hearing and briefly discussed the

project      on    the   record.       After         discussion,     the    Board     voted

unanimously in favor of approval.                A resolution memorializing the

vote   was     subsequently     adopted         at    the    Board   meeting    held       on

September 4, 2014.

       On October 14, 2014, plaintiff filed an action in lieu of

prerogative writs challenging the Board's approval of the project.

A hearing was conducted before Judge Karen M. Cassidy on November

10, 2015. On December 1, 2015, the judge issued an order upholding

                                            4                                       A-1853-15T4
the Board's decision.          In a comprehensive statement of reasons,

the judge determined there was more than an adequate basis for

each bulk variance, and that the record from the July 10 meeting

supported    a     finding    that     the       Board's     conclusions        were      not

arbitrary, capricious or unreasonable.                    Plaintiff filed an appeal

(A-1853-15).

                                         II.

     At the July 23, 2015 hearing for Property II, the Board heard

testimony from Engel, Kurus, Guerra, Christine Nazarro Cofone, a

licensed    professional       planner,          and    Justin    Taylor,       a    traffic

engineer.     Neither plaintiff, nor anyone on his behalf, appeared

at the hearing.

     Engel       testified      that     the           development    involved            the

construction       of     a   multi-story          building       containing          thirty

residential      units.       Engel    addressed          the    number    of       proposed

available parking spaces and acknowledged the need to provide new

curbs, sidewalks and street trees along the frontage.

     Kurus provided the Board with a detailed review of the

proposed    site    plan,     explaining         the     landscaping,      storm       water

management, and access and egress.                     Kurus further testified that

Engel   Gardens     would     address     and          satisfy   various    conditions

articulated in the July 15, 2015 report by Vinegra.



                                             5                                       A-1853-15T4
     Guerra   testified   regarding   the   proposed    building's

configuration, the location and number of units, and the Americans

with Disabilities Act (ADA) accessible units on the ground floor.

Guerra noted that the proposed building did not require any bulk

variances or design waivers.

     Cofone testified that the proposed project satisfied a number

of purposes under the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -112.    According to Cofone, the project provided

adequate light, air, and open space, and significantly reduced the

property's impervious coverage.

     Taylor, who prepared the Traffic Impact Assessment (TIA)

submitted by Engel Gardens, testified that the assessment analyzed

the difference in traffic between the property's current use and

the proposed use.   Based upon the TIA, it was determined there

would be no detrimental impact from the proposed development to

the surrounding roadways, and that access to and from the proposed

project would operate in a safe and efficient manner.

     At the conclusion of the testimony, and after consideration

of the TIA, the Board voted unanimously in favor of approval.      A

resolution memorializing the vote was subsequently adopted at the

Board meeting held on September 3, 2015.

     On October 22, 2015, plaintiff filed an action in lieu of

prerogative writs challenging the Board's approval of the project

                                  6                        A-1853-15T4
at Property II.       A hearing was conducted on June 16, 2016, before

Judge Cassidy. At the conclusion of the hearing, the judge entered

an order affirming the Board’s decision.           In an oral decision, the

judge   held   that    the   Board's    conclusions   were    not   arbitrary,

capricious or unreasonable.            The judge held the Board properly

determined the project did not require variances, and was in

compliance with all applicable codes and regulations.                 Plaintiff

filed an appeal (A-4780-15).

     Plaintiff raises the following points in appeal A-1853-15:

                                   POINT I

           THE TRIAL COURT ERRED IN UPHOLDING DEFENDANT
           PLANNING BOARD'S VARIANCE GRANTS.

                                  POINT II

           THE TRIAL COURT ERRED IN UPHOLDING THE
           PLANNING BOARD'S GRANT OF SITE PLAN APPROVAL,
           AS APPLICANT FAILED TO REQUEST NECESSARY
           VARIANCES.

     Plaintiff adds the following points in a reply brief in appeal

A-1853-15:

                                   POINT I

           THE   SHORTENED   REAR           YARD   VARIANCE     WAS
           IMPROPERLY GRANTED.

                                  POINT II

           THE IMPERVIOUS COVERAGE AND OPEN                   SPACE
           VARIANCES WERE IMPROPERLY GRANTED.



                                        7                               A-1853-15T4
                             POINT III

            THE BOARD'S RESOLUTION APPROVING THE PROPOSED
            PARKING LAYOUT VIOLATES THE RESIDENTIAL SITE
            IMPROVEMENT STANDARDS, N.J.A.C. 5:21-4.16(B).

                              POINT IV

            THE BOARD'S RESOLUTION APPROVING A FOUR[-
            ]STORY BUILDING IN THREE[-]STORY R-3 MULTI[-
            ]FAMILY ZONE WITHOUT A VARIANCE VIOLATES THE
            ELIZABETH ZONING ORDINANCE: THE LOFTS ON THE
            THIRD FLOOR CONSTITUTE A FOURTH STORY SINCE
            THEY ARE NOT "MEZZANINES."

                              POINT V

            THE BOARD'S RESOLUTION APPROVING AN ELEVATOR
            BUILDING IN THE R-3 MULTI-FAMILY ZONE WITHOUT
            A USE VARIANCE VIOLATES THE ELIZABETH ZONING
            ORDINANCE.

     Plaintiff raises the following point in appeal A-4780-15:

                              POINT I

            THE TRIAL COURT ERRED IN UPHOLDING THE
            PLANNING BOARD'S GRANT OF SITE PLAN APPROVAL,
            AS APPLICANT FAILED TO REQUEST NECESSARY
            VARIANCES[].

     "[W]hen reviewing the decision of a trial court that has

reviewed municipal action, we are bound by the same standards as

was the trial court."      Fallone Props., LLC v. Bethlehem Twp.

Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004) (citations

omitted).    "[W]hen 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


                                  8                          A-1853-15T4
Hoboken, 214 N.J. 199, 229 (2013).                "The questions on appeal are

only   whether    or     not   the    action     of   the   board   was   arbitrary,

capricious or patently unreasonable, and whether it acted properly

under the statute, that is, in accordance with the statutory

standard."    Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54-55

(1998) (citation omitted).

       The courts "will give substantial deference to findings of

fact, [however,] it is essential that the board's actions be

grounded in evidence in the record."                   Fallone, supra, 369 N.J.

Super.   at   562.        Legal      determinations         are   not   entitled      to

presumption      of    validity      and   are   subject     to   de    novo   review.

Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993).

       Regarding the proposed project at Property I, the judge

determined the proofs relating to the bulk variances sought by

Engel Investments were in accord with the requirements outlined

by N.J.S.A. 40:55D-70(c)(2).               Specifically, the judge found that

Engel Investments demonstrated that the proposed project: (1)

related to a specific piece of property; (2) advanced the purposes

of the MLUL by a deviation from the zoning ordinance requirement;

(3) the variance was without detriment to the public good; (4) the

benefits of the deviation outweighed any detriments; and (5) the

variance did not impair the intent and purpose of the zone plan

or ordinance.         See Wilson v. Brick Twp. Zoning Bd. of Adjustment,

                                            9                                  A-1853-15T4
405 N.J. Super. 189, 198 (App. Div. 2009) (citations omitted).

The judge held the Board properly analyzed and granted each

variance requested by Engel Investments, and thus the Board's

decision to grant the application was not arbitrary, capricious

or unreasonable.

    Regarding the proposed project at Property II, the judge

reviewed the evidence and testimony submitted by Engel Gardens

that formed the basis for the           Board's determination that no

variances were required.       The judge held the Board properly

considered the uncontested expert testimony from Guerra, Kurus,

Cofone, Taylor, and Vinegra.      The judge, after an analysis of the

applicable zoning ordinances, concluded the Board's decision to

grant   the   application   was    not    arbitrary,   capricious,    or

unreasonable.

    Given our highly deferential standard of review, and having

considered Judge Cassidy's thorough and well-reasoned decisions

in light of the record and the controlling decisions of law, we

discern no error.

    Affirmed.




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