                        NOT FOR PUBLICATION WITHOUT THE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-2328-15T1


BRUCE A. PATERSON, ILEEN
CUCCARO, HORACE CORBIN and
DAVID CORBIN,

        Plaintiffs-Respondents,

v.

THE COMBINED PLANNING BOARD/
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF GARWOOD,

        Defendant-Respondent,

and

ANGELA VILLARAUT and SANDRO
VILLARAUT,

     Defendants-Appellants.
________________________________

              Argued June 6, 2017 – Decided June 28, 2017

              Before Judges Yannotti and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-3224-
              14.

              Stephen F. Hehl argued the cause for
              appellants (Hehl & Hehl, P.C., attorneys; Mr.
              Hehl, of counsel and on the brief; Cory Klein,
              on the brief).
              John DeNoia argued the cause for respondents
              Bruce A. Paterson, Ileen Cuccaro, Horace
              Corbin and David Corbin (Kochanski, Baron &
              Galfy, P.C., attorneys; Mr. DeNoia, on the
              brief).

              New Jersey State Bar Association, amicus
              curiae (Thomas H. Prol, Howard D. Geneslaw,
              Cameron W. MacLeod, and Michael D. DeLoreto,
              on the brief).

              Respondent The Combined Planning Board/Zoning
              Board of Adjustment of the Borough of Garwood
              has not filed a brief.

PER CURIAM

       Defendants    Sandro     Villaraut    and   Angela       Villaraut     (the

Villarauts) appeal from an order entered by the Law Division on

November 4, 2015, which reversed a decision by                    the Combined

Planning Board and Zoning Board of Adjustment of the Borough of

Garwood (Board), and remanded the matter to the Board for a new

hearing. The Villarauts also appeal from an order entered by the

court    on     January   19,     2016,     denying     their      motion     for

reconsideration. We affirm in part, reverse in part, and remand

the matter to the Board for further fact-finding.

                                      I.

       The Villarauts are the owners of approximately one acre of

land in the Borough of Garwood. The property is located in the

Borough's RA zone, where single-family residences are permitted

uses    but   multi-family    uses   are    not.   On   March    4,   2014,    the


                                      2                                  A-2328-15T1
Villarauts filed an application with the Board seeking a use

variance to permit the construction on the property of a multi-

family development consisting of four three-bedroom and five two-

bedroom townhouses.

     The   Villarauts    also   sought    bulk   variances   for   building

height, floor area, and density for the development. The Villarauts

bifurcated their application and initially sought only the use and

bulk variances, reserving the site plan application for a later

date depending on whether the Board granted the variances.

     On May 8, 2014, notice of a public hearing on the application

was published in The Westfield Leader, a newspaper distributed in

Garwood and other municipalities. Notices also were mailed to the

owners of properties within two-hundred feet of the site of the

proposed development.

     The notices stated that on May 28, 2014, at 7:30 p.m., the

Board   would   be   considering   an    application   for   use   and   bulk

variances for the proposed construction of nine multi-family units

in the RA zone where multi-family uses are not permitted. The

notices identified the property involved.

     The notices also stated that variance relief was being sought

from the zoning restrictions for maximum floor area, the number

of units permitted per acre, and the principal building height,

as well as such other restrictions as may be required. The notices

                                    3                                A-2328-15T1
informed the public and neighboring property owners that they

could appear at the scheduled hearing and present any objections

they may have to the application.

     On May 28, 2014, the Board held a public hearing on the

application.    At    the   start    of       the   hearing,    counsel     for    the

Villarauts explained the variances that were being sought and

stated   that   the    Villarauts     would         be   willing     to   commit    to

restricting occupancy in the proposed development to persons who

are aged fifty-five years or older. Counsel for the Villarauts

then presented expert testimony in support of the application from

professional engineer Thomas J. Quinn, traffic engineer Joseph J.

Staigar, architect Glenn Potter, and professional planner John

McDonough.

     Quinn discussed the proposed height of the buildings, noting

that the buildings would have a height of thirty-six feet, which

exceeds the existing thirty-foot limit. Quinn also discussed the

density and floor-area ratio of the structures. He stated that the

proposed     residential    use     would       eliminate      the   current      non-

conforming use on the property, and bring the property more into

conformity with the intent of the Borough's zoning ordinance.

Quinn asserted that the property could accommodate the proposed

development.



                                          4                                  A-2328-15T1
     Staigar discussed the traffic-impact study that he prepared

with regard to the proposed development. He reviewed the existing

roadways and traffic conditions in the area, and estimated the

volume of traffic the proposed development is expected to generate.

Staigar said he did not believe the proposed development would

have a negative impact upon traffic. He noted that age-restricted

townhouses would have less of an impact on traffic than dwellings

that are not age-restricted. Staigar also discussed the safety of

the proposed entrances and exits for traffic in the development.

     Potter testified as to the size and interior configurations

of the proposed buildings. Potter noted that the buildings each

would be three stories tall. In addition, McDonough testified

about the property, the location, and the development's proximity

to the local train station. He discussed the purposes of zoning,

and stated that granting the variances would advance several of

those purposes.

     The Board then gave members of the public an opportunity to

comment. Four residents opposed the application. They expressed

concerns about traffic, whether the project complied with the

Borough's master plan, the run-off of water from the site, and

whether the development was appropriate for the location. Those

who opposed the application did not present any expert testimony.



                                5                           A-2328-15T1
     The Board voted to approve the application, but conditioned

the approval upon restricting occupancy in the townhouses to

persons    aged    fifty-five     years   or     older.   Plaintiffs    Bruce        A.

Paterson    and    Ileen      Cuccaro   were    members   of    the   Board      that

considered        the   application.          Paterson    voted     against         the

application, and Cuccaro recused herself from the matter.

     Thereafter,        the    Board    memorialized      its     decision     in     a

resolution dated July 23, 2014. In the resolution, the Board

summarized the expert testimony and the comments of the public.

The Board credited the testimony presented by Quinn, Staigar,

Potter, and McDonough.

     The Board found that special reasons existed for the proposed

use variance, and that the project would be consistent with the

Borough's master plan. The Board also found that the development

would improve the aesthetics of the property, and it would have

little negative impact upon the surrounding properties or upon the

Borough's zone plan or zoning ordinance. In addition, the Board

found that strict application of the zoning ordinance would result

in a hardship to defendants.

                                        II.

     On September 8, 2014, plaintiffs filed an action in lieu of

prerogative writs in the Law Division, alleging that the notice

of the hearing on the application did not comply with the Municipal

                                          6                                  A-2328-15T1
Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, because the notice

mischaracterized the nature of the relief sought. Plaintiffs also

alleged that the Board's resolution was "insufficient" because it

did not make the required findings of fact or "special reasons"

required to obtain the use variance.

     The Law Division judge conducted a hearing in the matter on

October 14, 2015. The parties agreed that plaintiffs Horace Corbin

and David Corbin had standing to challenge the Board's decision.

Therefore, the court did not address whether Paterson and Cuccaro

also had standing to maintain this action.

     The judge filed an order dated November 4, 2015, reversing

the Board's decision and remanding the matter to the Board for

further proceedings. In an accompanying statement of reasons, the

judge noted that the MLUL requires that the notice of the hearing

state, among other things, "the nature of the matters to be

considered." N.J.S.A. 40:55D-11.

     The parties did not present the court with a copy of the

actual notice used, but they agreed that the notice set forth the

date, time, and place of the hearing. The notice also identified

the property involved, and the location and time when maps and

documents pertaining to the application would be available for

inspection.



                                7                          A-2328-15T1
     The judge found that the notice of the hearing did not comply

with N.J.S.A. 40:55D-11 because it failed to inform the public or

neighboring property owners that occupancy in the townhouses would

be age-restricted. The judge stated that the reference in the

notice to multi-family townhouses was not specific enough to inform

the public and affected property owners of the proposed use.

     The judge wrote that, "[i]f the public and nearby property

owners had been properly apprised, it is reasonable to believe

that additional individuals may have attended this meeting to

object to the use." The judge decided that the matter must be

remanded to the Board for a new hearing with proper notice.

     The judge also discussed the sufficiency of the Board's

resolution,   "so   that   if   the   matter   is   presented   again,   the

deficiencies can be corrected." The judge stated that the Board's

factual findings regarding the grant of the use variance were

insufficient because they were conclusory. The judge stated that

the Board should specify those findings of fact that apply to the

positive and negative criteria for the variance "and explain the

rationale behind these conclusions."

     On November 24, 2015, the Villarauts filed a motion for

reconsideration. They presented the court with a copy of the notice

used, and argued that the judge erred by finding that the hearing

notice was deficient. On January 8, 2016, the judge heard oral

                                      8                             A-2328-15T1
argument on the motion, and on January 19, 2016, the judge filed

an order denying the motion, with an accompanying statement of

reasons.   The    judge   determined       that   there     was   no   basis   for

reconsideration of her prior order. This appeal followed.

                                  III.

       On appeal, the Villarauts argue that: (1) the trial court

erred by finding that the notice of the hearing did not comply

with   N.J.S.A.   40:55D-11;   (2)     the    judge    misapplied       Pond   Run

Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment,

397 N.J. Super. 335 (App. Div. 2008), by holding that the hearing

notice was defective; (3) the notice of the hearing does not have

to inform the public of the potentially limitless number of

mitigating conditions a Board might impose upon approval of a

variance; (4) imposition of an age restriction on occupancy does

not render the hearing a nullity; (5) it is irrelevant when the

age    restriction   first   arose,    provided       the    Board     adequately

considered the condition; (6) in ruling on the adequacy of notice,

the court must consider the actual form of notice employed; (7)

in deciding that the notice was deficient, the court improperly

considered whether members of the public could have prepared for

the hearing differently; (8) neither plaintiffs nor the trial

court identified any actual or hypothetical concern with the age

restriction, which was a mitigating condition designed to lessen

                                       9                                  A-2328-15T1
public concern; (9) existence of members of the public who might

be interested in purchasing a residential unit is not relevant to

determining     whether      the   notice     was   adequate;   (10)    plaintiffs

waived their right to challenge the notice because a number of

plaintiffs attended the hearing; (11) the hearing notice was

sufficient because the age restriction relates to ownership and

occupancy and was irrelevant to the proposed use from a municipal-

land-use-notice perspective; (12) occupancy of the units could

have been restricted at any time without the need for Board

approval;     and     (13)     this      court      should   exercise     original

jurisdiction and affirm the Board's grant of the variances because

the   Board's       decision       was   not     arbitrary,     capricious,       or

unreasonable.

      We granted the New Jersey State Bar Association (NJSBA) leave

to appear in this appeal as amicus curiae. The NJSBA argues that:

(1) the trial court erred by imposing notice requirements that are

more stringent than those provided in the MLUL; (2) the court

failed to recognize that securing land use approvals is a process

that requires a dialogue between a developer, the Board, and the

public in a limited time period; and (3) the court's decision will

undermine the finality and repose generally accorded to land use

approvals.



                                         10                                A-2328-15T1
     In response to these arguments, plaintiffs argue that the

trial court correctly determined that the hearing notice was

deficient because the public and neighboring property owners were

not informed that the proposed use would be age-restricted. They

further argue that the Board's findings of fact were inadequate.

                                    IV.

     We turn first to the Villarauts' argument that the trial

court erred by finding that the hearing notice did not comply with

N.J.S.A. 40:55D-11. The Villarauts contend that the notice met the

statutory   requirements    because       in   addition   to    the   required

information about the hearing, the notice informed the public and

neighboring property owners of the nature and character of the

application that the Board would be considering. They argue that

the notice did not have to refer to the fact that occupancy in the

proposed townhouses would be age-restricted.

     When   reviewing   a   trial   court's      decision      regarding    the

validity of a local board's determination, "we are bound by the

same standards as was the trial court." Fallone Props., L.L.C. v.

Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div.

2004). Generally, a court must give deference to the actions and

factual findings of local boards and may not disturb such findings

unless they are arbitrary, capricious, or unreasonable. Id. at

560. A board's decision must be based on substantial evidence in

                                    11                                 A-2328-15T1
the record. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172

N.J. 75, 89 (2002). We review any issue of law de novo. Wilson v.

Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197

(App. Div. 2009).

     It is undisputed that the MLUL required the Board to give the

public and owners of properties within two-hundred feet of the

property involved notice of the hearing at which the Villarauts'

application would be considered. N.J.S.A. 40:55D-12(b). The MLUL

requires that the notice

          state the date, time and place of the hearing,
          the nature of the matters to be considered
          and, in the case of notices pursuant to
          [N.J.S.A.   40:55D-12]   of   this   act,   an
          identification of the property proposed for
          development by street address, if any, or by
          reference to lot and block numbers as shown
          on the current tax duplicate in the municipal
          tax assessor's office, and the location and
          times at which any maps and documents for
          which approval is sought are available
          pursuant to [N.J.S.A. 40:55D-10(b)].

          [N.J.S.A. 40:55D-11.]

     It is well established that public notice in accordance with

the MLUL "is a jurisdictional prerequisite for a zoning board's

exercise of its authority." Pond Run, supra, 397 N.J. Super. at

350. The notice must "fairly apprise" the public and neighboring

property owners of the "nature and character of the proposed




                               12                          A-2328-15T1
development." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd.,

295 N.J. Super. 234, 237 (App. Div. 1996).

    Here, the Board provided the following notice to the public

and owners of property within two-hundred feet of the subject

property:

            PLEASE TAKE NOTICE, that on Wednesday, May 28,
            2014 at 7:30PM in the Borough of Garwood
            Municipal Building, Council Chambers, . . . a
            PUBLIC HEARING will be held by the [Board] for
            use and bulk variance approvals (Sections 106-
            91B: multi-family use not permitted in RA
            Zone; 106-91C(8): maximum floor area – [3500]
            sf. permitted, 27,020 sf. proposed; 106-91A:
            density – 8 units per acre permitted, 9 units
            per acre proposed; 106-91C(5): principal
            building height – 2.5 stories/30 ft. maximum,
            3 stories/36 ft. proposed) and such other
            variances, relief and/or waivers that may be
            required upon an analysis of the plans and
            testimony at the PUBLIC HEARING on the
            bifurcated Application submitted by the
            Applicants/Owners . . . .

The notice "fairly apprised" the public and neighboring property

owners with information concerning the "nature and character of

the proposed development." Ibid.

    The notice made clear that the applicant was seeking to

construct     multi-family     structures    on    property     zoned    for

residential    single-family    dwellings.   The   notice     detailed   the

number of structures proposed for construction, and informed the

public that variances were being sought from zoning requirements

for building height, number of stories, and maximum floor area.

                                   13                               A-2328-15T1
The notice described the proposed structures and informed the

public of the extent to which the structures deviated from the

zoning requirements for which the variances were sought.

      As noted, the judge found that the notice was deficient

because it did not state that occupancy in the proposed development

would be restricted to persons aged fifty-five years or older.

However, the fact that the units will be age-restricted does not

raise        a    "heightened     concern"     to   the    public    regarding     the

application.           Shakoor    Supermarkets,     Inc.    v.   Old    Bridge    Twp.

Planning Bd., 420 N.J. Super. 193, 203 (App. Div.), certif. denied,

208 N.J. 598 (2011). Indeed, the restriction of occupancy to

persons aged fifty-five or older would not affect the essential

use     of       the   property    for   multi-family       structures.     The    age

restriction also would not affect the number of buildings to be

constructed, or the other building features for which variances

were requested.

      Our decision in Pond Run does not compel a different result.

In that case, we determined that a notice of a hearing was

deficient because it informed the public that the zoning board

would        be    considering      an   application       for   a     variance    for

"retail/office" uses, while the proposed development included

plans for a large sit-down restaurant that would seek a liquor

license. Pond Run, supra, 397 N.J. Super. at 352.

                                          14                                 A-2328-15T1
     We   found   the   "generic    reference"   in    the   notice    to

"retail/office uses" did not "reasonably put a neighbor, or an

interested resident, on notice that a substantial restaurant was

contemplated for the site." Id. at 352-53. We observed that the

proposed restaurant would be open seven days per week until ten

or eleven o'clock at night and that the restaurant was not an

accessory use of any other building in the proposal. Id. at 353.

     The concerns we expressed in Pond Run as to the notice are

not present in this case. As we have explained, the notice of the

hearing fairly apprised the public and neighboring property owners

of the nature and character of the proposed use and the variances

requested.

     Our decision in Shakoor Supermarkets supports our conclusion

that the notice used here met the requirements of N.J.S.A. 40:55D-

11. In that case, the applicant sought site plan approval for the

construction of a retail store of 150,000 square feet. Shakoor

Supermarkets, supra, 420 N.J. Super. at 196. The notice did not,

however, identify the store as a Walmart. Ibid.       We found that the

notice met the statutory requirements. Id. at 203.

     We emphasized that a hearing notice does not have to be

exhaustive. Id. at 201 (citing Perlmart, supra, 295 N.J. Super.

at 239). The notice need only provide a "common sense description

of the nature of the application, such that the ordinary layperson

                                   15                           A-2328-15T1
could understand its potential impact upon him or her." Ibid.

(quoting Perlmart, supra, 295 N.J. Super. at 239).

     We concluded that the notice adequately informed the public

that a major "big box" store was proposed for the site, and alerted

the public to concerns typically associated with such stores. Id.

at 203. We stated that none of the uses anticipated for the store

raised any "heightened concern" for the public. Ibid. (quoting

Pond Run, supra, 397 N.J. Super. at 354).

     Here,   the   same   conclusion   applies.   The   hearing    notice

provided a common sense description of the proposed development

and its impact. The limitation of occupancy to persons aged fifty-

five or older did not raise a "heightened concern" for the public

as to the proposed use. Indeed, as the evidence presented at the

hearing showed, age-restricted multi-family dwellings are likely

to have less impact upon the community than dwellings without such

restrictions.

     We conclude that that the hearing notice used here complied

with the requirements of N.J.S.A. 40:55D-11. In         view   of      our

decision, we need not consider the other issues raised by the

Villarauts and the NJSBA regarding the notice.

                                  V.

     The Villarauts note that because the trial court ruled that

the hearing notice was inadequate, the court did not determine

                                  16                              A-2328-15T1
whether the Board's decision to grant the application complied

with the MLUL. The Villarauts therefore argue that we should

exercise original jurisdiction and address this issue.

       Rule 2:10-5 provides that "[t]he appellate court may exercise

such     original     jurisdiction    as     is     necessary   to   complete

determination of any matter on review." We may exercise such

jurisdiction "when there is 'public interest in an expeditious

disposition of the significant issues raised[.]'" Price v. Himeji,

LLC, 214 N.J. 263, 294 (2013) (quoting Karins v. City of Atlantic

City, 152 N.J. 532, 540-41 (1998)). Original jurisdiction also may

be exercised "to eliminate unnecessary further litigation." Ibid.

We     are   convinced,   however,    that    the    exercise   of   original

jurisdiction in this matter would not be appropriate.

       As we noted previously, the Law Division judge stated that

the Board failed to provide adequate findings of fact to support

its decision granting the variances. We agree with the judge's

assessment of the Board's findings, and conclude that more detailed

fact-findings are necessary.

       In    this   matter,   the   Villarauts      sought   variance    relief

pursuant to N.J.S.A. 40:55D-70(d), which provides that a board of

adjustment has the power

              [i]n particular cases for special reasons,
              [to] grant a variance to allow departure from
              [zoning] regulations . . . to permit: (1) a

                                      17                                A-2328-15T1
           use or principal structure in a district
           restricted against such use or principal
           structure . . . .

                  . . . .

           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 the purpose of the zone plan
           and zoning ordinance.

      In Medici v. BPR Co., 107 N.J. 1, 21 (1987), the Court stated

that the grant of a use variance requires "an enhanced quality of

proof and clear and specific findings by the board of adjustment

that the variance sought is not inconsistent with the intent and

purpose of the master plan and zoning ordinance." The Court also

stated that the applicant's proofs and the board's findings must

reconcile the proposed use with its omission of the uses permitted

in the applicable zoning district. Ibid.

      The Court observed that, when a use variance is challenged,

"a   conclusory   resolution     that      merely   recites      the   statutory

language will be vulnerable to the contention that the negative

criteria   have   not   been    adequately     established."       Id.   at    23.

Conclusory   findings   in     the   resolution     will   not    reflect     "the

deliberative and specific determination" required to satisfy the

negative criteria. Id. at 25.

                                      18                                 A-2328-15T1
     In her statement of reasons, the Law Division judge wrote

that the Board's resolution in this case

           states special reasons exist for the proposed
           use   variance.    While   the    [r]esolution
           incorporates    [ninety-four]     points    of
           testimony, this conclusory statement alone
           regarding special uses is insufficient. The
           [r]esolution also states in a conclusory
           fashion: that the proposed use is not
           inconsistent with the master plan of Garwood,
           there will be improvements to the aesthetics
           of the property, little if any negative impact
           upon the surrounding properties, or upon the
           zone plan or the zoning ordinances, and a
           hardship to applicant would result from the
           strict application of the zoning ordinance.
           While these statements may be supported by the
           record before the Board, the [r]esolution's
           conclusions should specify which findings of
           fact apply to the positive and negative
           criteria for the variance and explain the
           rationale behind those conclusions. As stated
           in Medici, a conclusory statement that merely
           recites the statutory language is vulnerable
           to the contention that the criteria have not
           been adequately establish[ed].

     We   agree   with   the   judge's   conclusion   that   the   Board's

resolution lacks the fact-finding required by Medici. We therefore

affirm the provision of the trial court's November 4, 2016 order

remanding the matter to the Board, but limit the remand to further

fact-finding. On remand, the Board shall issue a new resolution,

setting forth specific findings of fact to support its decision.




                                   19                              A-2328-15T1
     Affirmed in part, reversed in part, and remanded to the Board

for further proceedings in conformity with this opinion. We do not

retain jurisdiction.




                               20                          A-2328-15T1
