                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2001

In Re:Four Three Oh, Inc.
Precedential or Non-Precedential:

Docket 00-2135




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2001/145


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Filed July 2, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2135

IN RE: FOUR THREE OH, INC.,
       Debtor

BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF NORTH BERGEN, THE,
       Appellant

v.

B.A.P.S. NORTHEAST, INC.;
MICHAEL B. KAPLAN, Chapter 11 Trustee;
TOWNSHIP OF NORTH BERGEN, THE, a Municipal
Corporation of the State of New Jersey;
FOUR THREE OH CORP.

Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 99-cv-06002
District Judge: Alfred M. Wolin

Submitted Under Third Circuit LAR 34.1(a)
February 27, 2001

Before: NYGAARD, ALITO, and ROSENN, Cir cuit Judges.

(Filed: July 2, 2001)

       Gerald J. Monahan, Esq.
       322 48th Street
       Union City, NJ 07087
       Counsel for Appellant
       Robert L. Podvey, Esq.
       Podvey, Sachs, Meanor, Catenacci,
       Hildner & Cocoziello
       One Riverfront Plaza
       Newark, NJ 07102
       Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge:

This appeal has its origin in BAPS's1 application to the
North Bergen Board of Adjustment ("BOA or "the Board")
for a use variance which would permit BAPS to use the
subject property as a temple for Hindu worship. BAPS had
agreed to purchase the property fr om the trustee in
bankruptcy for Four Three Oh, Inc. on the condition that it
receive approval from the Township of North Bergen for its
desired use. The application process dragged on for over
two years, and finally culminated in the BOA's insistence
that BAPS hire off-duty police officers to direct traffic and
insure compliance with the occupancy limit for the temple
set by the BOA. The Bankruptcy Court held that this
condition was unreasonable and issued an injunction
requiring the BOA to allow BAPS to use its own uniformed
volunteers for traffic direction and occupancy limit
compliance. The BOA appealed this order to the United
States District Court for the District of New Jersey, which
affirmed. The Board timely appealed to this Court. We also
affirm.

I.

This controversy began in November of 1998, when the
United States Bankruptcy Court approved the sale to BAPS
of the subject property which previously had been owned
by Four Three Oh, Inc., a debtor in Chapter 11
proceedings. The sale of the property, which had been used
_________________________________________________________________

1. BAPS is an acronym. The full name of the organization is
Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha.

                               2
by the prior owner as a nightclub, was contingent upon
BAPS obtaining permission from the BOA to use the land
as a house of worship.

BAPS applied to the Township of North Ber gen for a
Certificate of Occupancy to permit the pr operty to be used
as a place of worship. Because the property is located in an
industrial zone, the Township denied the application on the
ground that a use variance was requir ed under New Jersey
law. BAPS then filed an application for the necessary use
variance with the BOA, who scheduled the matter for a
hearing in January, 1999.

Over the next several months, the BOA repeatedly
postponed the hearing. As a result, the Chapter 11 trustee
and BAPS jointly commenced an adversary proceeding in
the Bankruptcy Court seeking an injunction r equiring the
BOA to grant BAPS's pending application for a variance.
The Bankruptcy Court denied the injunction, but r emanded
the matter to the BOA for a hearing, ordering it to issue a
final decision on the BAPS application by October 6, 1999.

The first remand hearing occurred on September 22,
1999. The BOA heard testimony from several experts,
including Derrick McGrath, the BOA's engineer , who
identified numerous problems with the site that BAPS
needed to address. Most of these problems were later
discussed by BAPS's engineer, Bhaskar Halari, who
explained that BAPS could and would remedy them. One of
the chief problems McGrath identified was the fear that the
property had insufficient parking spaces to accommodate
its anticipated use. In response to this concer n, Kishor
Joshi, BAPS's architect, testified that BAPS was willing to
limit the temple's occupancy based on the number of
available parking spaces.

The number of parking spaces that would be available for
worshippers' use is a matter of dispute. Part of the land on
which the former nightclub was situated is currently leased
to a fast food restaurant (Taco Bell). Although Taco Bell's
lease is silent on the issue of parking, Michael Kauker, the
North Bergen town planner, had pr eviously testified that,
based on the number of seats in Taco Bell, the restaurant
was entitled to exclusive use of 27 parking spaces. Joshi

                               3
accepted this conclusion and calculated that the temple
would be left with 165 spaces. He offer ed to limit the
occupancy of the temple to 3.5 persons per parking space,
or 578 persons.

The BOA then heard testimony from Michael Maris,
BAPS's traffic expert. He testified that he had studied the
traffic conditions on the avenue adjacent to the property
and, using a "peak load factor" of .9, he calculated that the
property would have a C Level of Service,2 acceptable under
Federal standards. Maris based this calculation on BAPS's
agreement to limit itself to 165 parking spaces.

On September 28, 1999, the BOA heard testimony from
its own traffic consultant, Hal Simoff. Using the same
methodology as Maris, he concluded that the temple's
driveways would operate unsafely, with a level of service
rating of F. However, Simoff used a peak load factor of .7,
which, on cross examination, he conceded was incorrect.
He then agreed that a peak load factor of .82 would be
more appropriate and would yield a D Level of Service,
which Maris testified was still acceptable (under federal
standards). Simoff later testified that, based on his reading
of the metes and bounds description in the T aco Bell lease,
Taco Bell was entitled to 65 parking spaces. Although it
received notice of this litigation, Taco Bell never appeared
or asserted any claim.

Between the second and final scheduled hearing dates,
BAPS wrote a letter to the BOA offering to limit its
occupancy to 505 persons, even though the number of
available parking spaces would permit a building
occupancy of 578 persons under the relevant North Bergen
ordinance. Under the ordinance, a building with an
occupancy limit of 505 required only 143 parking spaces.

The final hearing on the BAPS application took place on
October 6, 1999. Simoff again testified at this hearing, but
_________________________________________________________________

2. A property's "Level of Service" r efers to the amount of time it takes
a
vehicle to exit the driveway. Level of Service A means a delay time of
less
than ten seconds. Level of Service F, which is generally unacceptable,
means a delay time of greater than 50 seconds. The property currently
operates with a "B" Level of Service.

                               4
this time he limited his testimony to BAPS's existing facility
in nearby Edison Township. Simoff claimed that BAPS had
misrepresented its proposed use of that facility before the
Edison land use board and that BAPS had made
architectural changes to the Edison building without first
obtaining the requisite municipal approval. However, Simoff
once again retracted his testimony on cr oss-examination
when confronted with approved site plans for the Edison
facility. These plans proved that BAPS had, in fact,
obtained the approval of the township befor e altering its
building.

At the end of the final hearing, the BOA denied BAPS's
application for a variance, citing occupancy, traffic, and
parking problems. BAPS appealed this decision to the
Bankruptcy Court, which reversed the denial, concluding
that the Board had acted arbitrarily in r efusing to consider
reasonable restrictions that would alleviate problems with
occupancy, parking, ingress and egress. The Court
remanded the application back to the Boar d to consider
such restrictions.

On remand, the BOA required, as a condition of granting
the variance, that BAPS hire off-duty police officers to
monitor traffic entering and exiting its parking lot. This
condition was financially burdensome and, as it turned out,
impossible to fulfill, because the chief of police later
informed BAPS that off-duty officers were not available. The
BOA refused BAPS's offer to have its own volunteers
perform this function, and BAPS once again brought the
matter to the attention of the Bankruptcy Court. This time,
the Court held that this condition was arbitrary and
unreasonable. It vacated the proposed condition and
ordered BAPS's application for a variance approved,
allowing BAPS volunteers to monitor the trafficflow in the
temple parking lot. The BOA appealed this or der to the
District Court, which affirmed.

II.

The first question before us is whether the District Court
applied the correct standard of review. The District Court
reviewed the bankruptcy court's factual findings for clear

                               5
error, while subjecting its legal conclusions to plenary
review. Although this is the standard that normally applies
to appeals from bankruptcy decisions, see In re Sharon
Steel Corp., 871 F.2d 1217, 1223 (3d Cir . 1989), this case
reached the District Court in an unusual pr ocedural
posture. The Bankruptcy Court had effectively reviewed the
decision of the Board of Adjustment, an administrative
body created under state law. Under similar cir cumstances,
the Court of Appeals for the Eight Circuit explained the
standard of review as follows:

       [W]e are reviewing neither the legal rulings of the
       bankruptcy court nor its findings of fact. W e are
       reviewing the judgment of a district court affirming a
       bankruptcy court decision giving effect to a decision of
       the [administrative agency]. In substance, we are
       reviewing the decision of an administrative agency.

Id. at 1390 (internal citations omitted).

When a federal court reviews a decision of a state agency,
it must grant that agency's factual findings the same degree
of deference to which they would be entitled if they were
reviewed by a state court. See AT&T W ireless PCS v.
Winston-Salem Zoning Board, 172 F .3d 307, 315 (4th Cir.
1999). If the BOA's decision had been reviewed in the state
court system, the Law Division of the New Jersey Superior
Court would have exercised a deferential standard of
review. Its review would have been limited to determining
whether the BOA's decision was supported by "substantial
evidence" and whether it was "arbitrary, unr easonable or
capricious." Pullen v. S. Plainfield Planning Bd., 291 N.J.
Super 303, 311-12, 677 A.2d 278, 282 (Law Div.
1995)("Pullen I"). The Law Division would have acted as a
reviewing court, not a trial court, and would have reviewed
the BOA's factual findings based on the recor d of the
proceedings before the BOA. See Pullen I, 291 N.J. Super at
312.

On appeal, the Appellate Division's review of the Law
Division's decision would have been de novo. The Appellate
Division would have conducted its own review of the record
before the BOA, using the same arbitrary and capricious
standard. See Pullen v. Township of S. Plainfield Planning

                                6
Bd., 291 N.J. Super. 1, 6, 676 A.2d 1095, 1097(App. Div.
1996)("Pullen II").

In this case, the Bankruptcy Court applied the corr ect,
deferential standard of review, but the District Court did
not. When the Bankruptcy Court's decision was appealed to
the District Court, the District Court functioned as a
second-level reviewing court. Its standar d of review should
have been plenary. See, e.g. AT&T Wireless, 172 F.3d at
314-315; C.K. v. New Jersey Dept. of Health & Human
Services, 92 F.3d 171 (3d Cir. 1996); Bankruptcy Estate of
United Shipping v. General Mills, 34 F.3d 1387 (8th Cir.
1994).

In similar cases in which the District Court, functioning
in an appellate capacity, applied the wrong standard of
review, we have nevertheless reached the merits of the
appeal.3 In light of the alr eady long duration of this
litigation in the court below, we will not r emand but decide
the merits. For reasons fully discussed her einafter, we
believe the record of the BOA proceedings reveal that it
acted arbitrarily, capriciously and unreasonably in denying
the variance sought by BAPS. As we explain in Part III, the
District Court did not err in affirming the decision of the
Bankruptcy Court.

III.

Under New Jersey law, a town planning board should
grant a variance for a proposed land use that is "inherently
beneficial" if the applicant satisfies a four -prong test. See
Sica v. Board of Adjustment of the Township of Wall, 127
N.J. 152, 165-66 (1992). The parties here agr ee that the
proposed temple constitutes an "inher ently beneficial" use
of the subject property. Accordingly, the Sica decision
requires the BOA to first identify the public interest
involved and then identify the "detrimental ef fect that will
_________________________________________________________________

3. See, e.g., In re Marcus Hook Dev. Park, Inc., 943 F.2d 261, 263 n.2 (3d
Cir. 1991)(finding that the District Court had applied the wrong standard
of review when reviewing a Bankruptcy Court's decision and proceeding
to reach the merits of the appeal); In re Vertientes, Ltd., 845 F.2d 57,
58
& 59-60 (3d Cir. 1988)(same).

                               7
ensue from the grant of the variance." Id. at 165-66. Next,
the Board should, when possible, consider r easonable
conditions on the use that would reduce its detrimental
effect. See id. Finally, the Boar d should "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." Id. In doing so, the Board
should reduce the weight of the negative criteria to the
extent that their effect could be reduced by the imposition
of reasonable conditions. See id.

We agree with the District Court and the Bankruptcy
Court that the Board failed to seriously undertake the
balancing test required by Sica. The BOA cited three
negative criteria to support its denial of the variance:
alleged overuse of the BAPS facility in Edison, a shortage of
parking, and traffic problems. The recor d shows little
support for any of these concerns. First, as the Bankruptcy
Court noted, there is no evidence in the r ecord, except for
Simoff 's discredited testimony, to support the allegation
that BAPS misrepresented its anticipated use to the Edison
board.

The Board also relied on Simoff 's admittedly faulty
analysis to support the conclusion that BAPS's pr oposed
use of the site would cause traffic problems. Simoff himself
conceded that the peak load factor used by BAPS's traffic
expert, which led to the conclusion that the T emple would
not unduly hamper traffic, was more appr opriate than the
one he used, and would yield an acceptable Level of
Service. Thus, we agree that the Board's r eliance on
Simoff 's traffic calculations was unr easonable.4
_________________________________________________________________

4. The dissent contends that Simoff 's error in calculation "related only
to
the ability of cars to exit the proposed temple's parking lot, leaving
unaffected any conclusions about . . . the ability of cars to enter the
lot."
(Dis. op. at 16). However, Maris testified that the ability of vehicles to
exit
the site was the most critical consideration in analyzing the feasibility
of
the proposed use. He stated that, because cars attempting to enter the
proposed lot only need to make a right tur n off Route 1 and 9, "the
entering traffic is not critical." He also testified that the number of
vehicles attempting to enter the parking lot at the peak entering hour
was far lower than the number of cars attempting to exit at the peak
exiting hour. Neither of these conclusions has been contradicted.

                               8
Furthermore, the Temple's peak hours of operation would
fall on Sunday evenings from four to nine p.m. According to
Maris's uncontradicted testimony, which was based on his
personal knowledge and study of local traffic conditions,
Route 1 & 9 is not heavily trafficked during those hours.
Maris testified that the traffic problems on Routes 1 & 9
occur during weekday commuter hours. Although BAPS
does offer services during those hours, its experience at its
Edison facility reflects that week-day services are sparsely
attended, usually drawing only 10-15 worshipers.

Finally, the Board's concern about parking also lacks a
foundation. Here, again, the Board r elied on the testimony
of Simoff, a non-lawyer, who opined that, based on his
reading of the Taco Bell lease, T aco Bell was entitled to 65
parking spaces. The lease, however, is silent on the issue of
parking.5 Moreover, Simoff 's testimony was contradicted by
that of North Bergen's own town planner , who testified that
Taco Bell needed only 27 spaces, which would leave BAPS
with more than enough parking for a temple with an
occupancy limit of 505. Finally, we note that, four years
ago, this Board approved the use of this very site as a
nightclub. Although the nightclub's occupancy limit was
700, the Board expressed no concer n over the amount of
available parking. The existence of this prior appr oval calls
into question the genuineness of the BOA's contention that
it denied the BAPS application due to inadequate parking.6

Even if there were some factual basis for the concerns
articulated by the Board, we would still affirm the judgment
_________________________________________________________________

5. We also note that, although Taco Bell has received notice of the
existing action, it has not appeared to defend its right to any parking
spaces.

6. The dissent asserts that the BOA approved the use of the site as a
nightclub because a nightclub attracts patrons"late at night when street
parking may be more available and trafficflow is lighter." (D.C. at 18)
This is pure speculation. Nothing in the r ecord suggests that parking on
Route 1 and 9 is available late at night, but not on Sunday evenings.
Moreover, contrary to the dissent's suggestion, Maris testified that entry
into and exit from the parking lot would be mor e evenly spread
throughout the temple's hours of operation than would entry to and exit
from a church or synagogue. He stated that, at BAPS's temple in Edison,
"people kept coming in throughout the day."

                               9
of the District Court because the Board shirked its duty
under Sica to seriously consider conditions designed to
alleviate any negative impact that would flow fr om the grant
of the variance. The record reveals that BAPS proposed
numerous conditions,7 fr om reducing the size of its prayer
hall to reducing the occupancy limit of its temple, which
should have quieted the Board's concerns about over-use,
parking and traffic. The Board rebuf fed all of these
proposals for no apparent reason. Its president simply
concluded that "no organization would voluntarily limit its
membership."

Finally, we also note that the Bankruptcy Court vacated
the condition that the Board ultimately chose to impose on
BAPS's use of the site, the hiring of off-duty police officers
at BAPS's expense to direct traffic and monitor compliance
with the occupancy limit. We agree with the Bankruptcy
Court that this condition was arbitrary and unr easonable.
The Board refused to allow BAPS's own volunteers to direct
traffic and monitor occupancy, concluding that they could
not be trusted to do so. We believe that this conclusion,
which has no basis in the record, further supports the
Bankruptcy Court's decision that the Board acted
arbitrarily and unreasonably in denying the variance.

IV.

In sum, we agree with the Bankruptcy Court that the
Board acted arbitrarily and unreasonably. The judgment of
the District Court will be affirmed. Costs taxed against
appellant.
_________________________________________________________________

7. The dissent believes that it was reasonable for the BOA to question
whether BAPS would be willing to turn people away at the door once 505
people had entered the temple if there was room for more. (Dis. op. at
17). On the contrary, it is unreasonable and unfair for the BOA to
postulate in the absence of any evidence that BAPS would violate its
agreement to limit occupancy. Occupancy limits are quite common in
dance halls, dining rooms, elevators and other structures. Besides, if
BAPS were to violate this condition of the variance, the Township has a
legal remedy by injunction or rescission of the variance.

                               10
ALITO, Circuit Judge, dissenting:

I respectfully dissent for two reasons. First, unlike the
majority, I do not think that the decision of the Board of
Adjustment ("BOA") denying the variance was arbitrary or
capricious. Second, I do not believe that the Bankruptcy
Court's Opinion vacating the condition that the BOA
ultimately chose to apply -- the hiring of of f-duty police
officers -- is properly before us for review.

I.

The New Jersey Legislature has delegated the power to
grant or deny variances to local boards of adjustment. See
N.J. Stat. S 40:55D-70. However, the Legislature has
restricted that power in the following manner:

       No variance or other relief may be granted under the
       terms of this section, 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
       purpose of the zone plan and zoning ordinance.

N.J. Stat. S 40:55D-70(d) (2000).

In other words, a board must deny a variance if it finds
either that the variance would ultimately result in a
"substantial detriment to the public good" or that the
variance would "substantially impair the intent and
purpose of the zone plan and zoning ordinance." In this
case, the BOA unanimously found that denial of BAPS's
application was mandated by the parking and traffic
problems that granting the variance would cause. P.A. 451.

"Review of the decision of a board of adjustment . . .
begins with the recognition that the boar d's decision is
presumptively valid and is reversible only if arbitrary,
capricious, and unreasonable. Underlying the pr esumption
is the recognition that such boards possess special
knowledge of local conditions and must be accor ded wide
latitude in the exercise of their discr etion." Sica v. Bd. Of
Adjustment, 127 N.J. 152, 166-67, 603 A.2d 30, 37-38
(1992) (citations omitted). "[A] reviewing court [may not]

                                11
`suggest a decision that may be better than the one made
by the . . . planning board,' we merely`determine whether
the board could reasonably have reached its decision.' "
Pullen v. Township of S. Plainfield Planning Bd., 291 N.J.
Super. 1, 6-7, 676 A.2d 1095, 1097 (App. Div. 1996)
(quoting Davis Enters. v. Karpf, 105 N.J. 476, 485, 523
A.2d 137, 141 (1987)). Moreover, the bur den on a party is
even greater when challenging the denial of a variance than
when challenging the approval of a variance. See Nynex
Mobile Communications Co. v. Hazlet Township Zoning Bd.
of Adjustment, 276 N.J. Super. 598, 609, 648 A.2d 724,
730 (App. Div. 1994) (citing Cerdel Constr . Co. v. Township
Comm., 430 A.2d 925 (1981)). "Thus, an applicant bears a
heavy burden in overcoming a denial." Id.

The majority rejects the BOA's two main r easons for
denying the variance--a shortage of parking and traffic
problems--holding that "[t]he r ecord shows little support for
. . . these concerns." Maj. at 8. The record, however,
contains more than sufficient evidence for the BOA's
decision to withstand review.

BAPS does not contend that it was inappropriate for the
BOA to consider parking and traffic problems in making its
decision on the variance. See Price Co. v. Zoning Bd. of
Adjustment, 297 N.J. Super. 327, 331-32, 652 A.2d 784,
787 (Law. Div. 1993). Nor does BAPS contend that the BOA
acted unreasonably in refusing to grant its application for
a variance as it was initially presented to the BOA. Rather,
BAPS challenges the BOA's refusal to accept its proposal to
limit occupancy to 505 people as a solution to the
detrimental effects of the proposed temple--a temple still
capable of accommodating 1500-1600 people.1 P.A. 253.
_________________________________________________________________

1. Notably, while BAPS proposed to limit the occupants to 505 people
and to rearrange the interior of the temple so that the prayer hall would
be suitable for 505 people, BAPS never offer ed to reduce the overall
square-footage of the temple, which would still remain capable of holding
1500-1600 people. The majority apparently holds that the BOA's
decision to focus on the gross square footage of the temple rather than
on the square footage of the prayer hall alone was arbitrary and
capricious. I find no support for the conclusion that no reasonable
person could focus on the gross capacity of the temple.

                               12
Under the Sica test, the BOA was first r equired to
"reduce the detrimental effect [of granting the proposed
variance] by imposing reasonable conditions on the use
. . . . [and] 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."
Sica, 127 N.J. at 166, 603 A.2d at 37. The BOA r ejected the
proposed occupancy limit as an invalid "r easonable
condition on the use" for three reasons. The BOA
determined (1) that the proposed conditions did not
sufficiently eliminate the parking and traffic problems; (2)
that BAPS would be unable to impose the proposed
conditions effectively; and (3) that BAPS would be unlikely
to adhere to the proposed conditions. Each of these reasons
is supported by substantial evidence and thus pr ovides an
adequate basis for the BOA's denial of the variance.

i.

First, the BOA reasonably found that, even with the
occupancy limit of 505, the proposed BAPS temple would
cause a substantial detriment to the public good with
respect to parking and traffic. See Price Co. v. Zoning Bd. of
Adjustment, 279 N.J. Super. 327, 328-29, 652 A.2d 784,
785 (Super Ct. 1993).

Testifying about parking, the BAPS expert, Michael Maris,
and the BOA's expert, Hal Simoff,2 agreed that the temple
would need one parking space for approximately every 3.3
occupants. P.A. 131; 264. Thus, the temple would need 153
spaces to accommodate 505 people. The parking lot that
the proposed temple site shares with a T aco Bell has a total
of 193 spaces. Therefore, if Taco Bell owns only 27 spaces,
as BAPS contends, there was enough parking for 505
people; conversely, if Taco Bell owns 64 spaces, as the BOA
contends, then enough parking does not exist.

The only testimony as to the number of parking spaces
that Taco Bell owns came from Simof f, who opined, based
_________________________________________________________________

2. The BOA hired Simoff to study the parking and traffic effects of the
proposed temple and to make an independent r ecommendation on
whether the variance should be granted.

                               13
on his examination of the Taco Bell lease and his
measurements of the property, that T aco Bell owns 64
spaces. P.A. 261-62. BAPS's figure of 27 spaces is based
entirely on the testimony of Town Planner Michael Kauker,
who stated that Taco Bell "could use 27 spaces" -- which
meant that the zoning laws would be satisfied if T aco Bell
had a minimum of 27 spaces. P.A. 11-12. This fact has
little logical relationship to the number of spaces that Taco
Bell owns and thus does not undermine Simof f 's
testimony.

The majority dismisses Simoff 's testimony on this point
partly because he is not a lawyer and because T aco Bell
has "not appeared to defend its right to a certain number
of parking spaces." Maj. at 9 fn.5. Simof f 's lack of a law
degree was a fact that the BOA could have considered in
assessing the weight to assign to his opinion, but this fact
did not make it unreasonable for the BOA to accept his
testimony. Moreover, I fail to see the significance for present
purposes of Taco Bell's failure to appear in the federal court
proceedings. Taco Bell is not bound by the decision in this
case, and it is not difficult to think of business reasons why
it might have chosen not to appear.

As for traffic, Simoff and Maris disagr eed over the ability
of Route 1 & 9, a state highway, to absorb the traffic that
the temple would generate. The BOA President r easonably
worried that Route 1 & 9 "is a heavily trafficked road . . . .
It will be a mess. [Cars] will be lined up on[Route 1 & 9],
trying to get in.". P.A. 447. Another BOA member noted that
when discussing "[Route] 1 & 9, you'r e talking a state
highway. It's treacherous. Exiting and entering anywhere
on [Route 1 & 9] for one car, you'r e taking your life in your
hands." P.A. 448-49.

The BOA heard conflicting expert testimony on the
impact that the proposed temple would have on traffic.
Simoff testified that the traffic volume along Route 1 & 9 at
the temple site during peak midday hours was 1600
vehicles/hour. P.A. 228. He further testified that the temple
would generate 168 vehicles/hour exiting during peak time.
P.A. 231. According to Simoff 's computer modeling, under
these conditions, Route 1 & 9 at the temple driveway would

                               14
operate at Level of Service F.3 P.A. 236. Simoff characterized
this level of service as "unacceptable under any conditions."
P.A. 237.

Maris agreed that Level of Service F is unacceptable, but
he testified that, with the temple, the Level of Service would
be "C" -- a negative impact of only one service level from its
current service level of "B." P.A. 144-45. Maris
characterized this as "an acceptable impact on traffic." P.A.
145.

The majority holds that it was unreasonable for the BOA
to accept Simoff 's testimony because, on cross-
examination, Simoff admitting making a minor error in
calculation. The main difference between Simoff 's
conclusion and Maris's came from their use of different
"peak hour factors"4 -- Simoff testified that he used a peak
hour factor of .7 in his calculations, P.A. 292, while Maris
testified that he used a peak hour factor of .91. P.A. 148.
Simoff admitted on cross-examination that the correct peak
hour factor was .82--barely closer to that used by Maris
than to that used by Simoff. P.A. 293-94. Nevertheless,
using the correct peak hour factor, Simoff calculated the
entryway would still be classified as Level of Service D. P.A.
294.

Weighing witness credibility is the pr ovince of the BOA,5
and the BOA was entitled to accept Simoff 's opinion
despite his initial error. Simof f admitted that neither he nor
_________________________________________________________________

3. Planners refer to "Levels of Service" when measuring the traffic flow
of
a road and its corresponding ability to accept traffic entering from a
driveway or connecting roadway. Level of Service A means that the
average delay for a vehicle waiting to enter is less than 10 seconds per
vehicle, and Level of Service F means that the delay is greater than 50
seconds per vehicle. P.A. 144-45; 236-37.

4. The "peak hour factor" is a factor used in the calculation of a road's
level of service. The peak hour factor compensates for the fact that cars
will not attempt to exit a driveway uniformly throughout the peak hour.
P.A. 149.

5. See Beverly Calif. Corp. v. NLRB, 227 F.3d 817, 830 (7th Cir. 2000);
Hambsch v. Department of the Treasury , 796 F.2d 430, 436 (D.C. Cir.
1986); Baghdikian v. Bd. of Adjustment, 247 N.J. Super 45, 48-49, 588
A.2d 846, 848 (App. Div. 1991).

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Maris used the correct peak hour factor in their
application, and that the real peak hour factor lay
somewhere in between, only slightly closer to Maris's
number than to his own. Moreover, the error would not
have changed his ultimate conclusion. Lastly, the error in
calculation related only to the ability of cars to exit the
proposed temple's parking lot, leaving unaf fected any
conclusions about the capacity of the parking lot or the
ability of cars to enter the parking lot. Under these
circumstances, Simoff may have been slightly "discredited,"
as the majority claims, but I do not believe that it was
unreasonable for the BOA to accept any of Simof f 's
testimony, as the majority effectively holds. See Todd v.
Sheridan, 268 N.J. Super. 387, 400, 633 A.2d 1009, 1016
(App. Div. 1993) ("The finder of fact is fr ee to accept all,
some, or none of an expert witness's opinion."). Moreover,
accepting Simoff 's revised testimony, I do not believe that
the Board unreasonably decided that a decr ease from Level
of Service B to Level of Service D constituted a substantial
detriment to the public good.

ii.

Second, the BOA reasonably questioned whether BAPS
could adhere to the proposed restriction. The BOA
President worried that "it would not be feasible to tell a
person that he or she could not attend services." P.A. 448.
This concern is neither arbitrary nor capricious. Under
Sica, the BOA is required to consider only "reasonable
conditions." Sica, 127 N.J. at 166, 603 A.2d at 37. A
condition that is not feasible certainly does not qualify as a
reasonable condition.

The majority does not address the specifics of how BAPS
will prevent more than 505 people fr om attempting to come
to services. If the number of cars coming to the temple site
exceeds the number of parking spaces, it is pr edictable that
some people who wish to attend services and who know
that there is space for them in the temple will park their
cars illegally on adjoining streets and then walk to the
temple. This would create a very danger ous situation. P.A.
227-28.

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Simoff recommended that the variance be granted if
BAPS would reduce the square footage of the temple to a
size suitable for an occupancy of approximately 450 people.
P.A. 299 & 398-400. However, none of BAPS's proposals
show a willingness to reduce the size of the temple. Thus,
even if enough parking existed on the site for an occupancy
limit of 505, it was not unreasonable for the BOA to reject
the limitation of occupancy as not being a "r easonable
condition."

iii.

Third, the BOA reasonably questioned whether BAPS
would adhere to the proposed restriction. The BOA
President doubted whether BAPS "would voluntarily limit
its membership." P.A. 448. It was r easonable for the BOA to
question whether BAPS would be willing to tur n people
away at the door once 505 people had entered the temple,
even though there would still be room for 995 to 1095
attendees.

In questioning BAPS's willingness to do this, the BOA
only partially relied on Simoff 's testimony regarding the
alleged over-occupancy of BAPS's temple in Edison. The
BOA President made the common-sense comment that "I,
for one, do not believe that any organization would
voluntarily limit its membership." P.A. 447. In other words,
he doubted BAPS's willingness to turn away people who
wished to enter the temple to worship even though there
was plenty of room for them inside. This view was well
within the bounds of reason.

The majority questions the BOA's sincerity because the
BOA previously granted a variance for the operation of a
nightclub on the same property. Maj. at 9. However, as far
as I am aware, BAPS itself has never questioned the BOA's
motives. I would view this case quite differ ently if there
were any suggestion that the BOA harbor ed any bias
towards BAPS or its members, but I am awar e of no such
evidence. Furthermore, the parking and traffic concerns
associated with a nightclub can be very differ ent from those
associated with a house of worship. The temple's main
services would be on Sunday, with other services on

                               17
weekday afternoons. See P.A. 177-78 (BAPS's schedule of
services). A nightclub would normally draw patrons only
late at night, when parking may be more available and
traffic flow is lighter. Also, it is likely that the arrival and
departure of patrons of a nightclub would be more evenly
spaced over its hours of operation, whereas the proposed
BAPS temple could generate mass entry and exodus at
specific times. In any event, we do not have befor e us the
record concerning the BOA's pr evious grant of a variance,
making it impossible to draw conclusions as to pr opriety of
an analogy between the nightclub and the proposed temple.6

II.

I also note that the BOA's later decision to impose the
condition of hiring off-duty police officers at BAPS's expense
to monitor traffic is not properly befor e us. The BOA
imposed the condition on December 1, 1999, a week after
filing the notice of appeal to the District Court in this case.
The Bankruptcy Court subsequently vacated the condition
on January 7, 2000. The BOA has not appealed that
decision, nor does it raise the issue in its brief. See Brief of
Appellant at 14 (disavowing a challenge to the Bankruptcy
Court's order vacating the condition). Indeed, the majority's
conclusion that there is nothing in the r ecord to support
the condition is self-evident, since the Boar d was ordered
by the Bankruptcy Court to begin considering r easonable
conditions on November 29, 1999, whereas we have no
record before us concerning any BOA actions or meetings
occurring after October 9, 1999.
_________________________________________________________________

6. The Majority implies that it was per se unr easonable for the Board to
rely upon common knowledge as well as its weighing of the credibility of
the BAPS petitioners to reach the conclusion that BAPS would probably
not adhere to the occupancy limit. Maj. at 9 n.7. If this were the case,
then it would form the basis for a blanket rule that, no matter how
preposterously low the proposed occupancy limit was when compared to
the designs of and intended use for the building, a Board of Assessment
must accept a petitioners proposed occupancy limit. This cannot be the
case.

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III.

In sum, the majority disregards the long-standing
proposition that "[a]n abuse of discr etion does not exist
simply because we disagree with the [finder of fact's]
decision." Barnes Foundation v. T ownship of Lower Merion,
242 F.3d 151, 167 (3d Cir. 2001) (Nygaard, J., dissenting).
" `Abuse' itself is a serious accusation and in using the term
`abuse' to define our standard of r eview, our jurisprudence
has recognized the institutional superiority of the [finder of
fact]. Therefore, we should not r eadily discard its findings
and conclusions." Id.

Because I believe that the BOA's decision is supported by
substantial evidence and is not arbitrary or capricious, I
would reverse the decision of the District Court and sustain
that of the BOA.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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