Michael Jackson v. 319 Penn Development, Llc.

NOT FOR PUBLICATION WITHOUT THE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-1351-22

MICHAEL JACKSON,

LEON MONDELLI,

MICHAEL MERHI,

ALDEMAR VELEZ, and

CARMEL CORNWALL,

Plaintiffs-Appellants,

v.

319 PENN DEVELOPMENT, LLC

and the CITY OF PATERSON

BOARD OF ADJUSTMENT,

Defendants-Respondents.

_____________________________

Argued May 7, 2024 – Decided July 23, 2024

Before Judges Sumners and Rose.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Docket No. L-1003-22.

John J. Segreto argued the cause for appellants (Segreto

& Segreto, LLP, attorneys; John J. Segreto, of counsel

and on the briefs).

Derek W. Orth argued the cause for respondent 319

Penn Development, LLC (Inglesino Taylor, attorneys;

Derek W. Orth and Alyssa E. Spector, of counsel and

on the brief).

Marco A. Laracca argued the cause for respondent City

of Paterson Board of Adjustment (Bio & Laracca, P.C.,

attorneys; Marco A. Laracca, on the brief).

PER CURIAM

Plaintiffs Michael Jackson, Leon Mondelli, Michael Merhi, Aldemar

Velez, and Carmel Cornwall appeal the trial court's order affirming defendant

City of Paterson Board of Adjustment's decision granting defendant 319 Penn

Development, LLC preliminary and final site plan approval, design waivers, and

numerous variances under the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -136, to develop a mixed-use residential and commercial project at

a former government office building. We affirm.

I.

A.

319 Penn owns the abandoned Passaic County administration building in

Paterson, which is located at 305-319 Pennsylvania Avenue (the property)––

bounded by Railway Avenue, Buffalo Avenue, and Columbia Avenue––in a

Mixed Use District. The city's zoning ordinance allows "commercial and

industrial uses" in the district "to create an environment for effective integration

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2

and mutual support among the nonresidential activities and to promote more

viable economic development and higher land values." Paterson, N.J., Code ch.

483, art. V, § 500-2.1(I). It prohibits new residential development in the district

"to protect homes from the adverse effects of the light industrial and intensive

commercial uses permitted in the district and to conserve the supply of land for

such uses." Ibid.

In 2021, 319 Penn applied to the Board for preliminary and final site plan

approval, plus:

• Waivers of several procedural requirements for

site plan approval;

• Use variances, pursuant to N.J.S.A. 40:55D-

70(d), to permit residential development in the

Mixed Use District and for floor area ratio (1.4

maximum permitted, 5.0 proposed), density (67

total units permitted for a lot of the property's

size, 175 units proposed), and height (three floors

permitted, five floors proposed);

• Bulk variances, pursuant to N.J.S.A. 40:55D-

70(c), for front yard setback on Columbia,

Pennsylvania, and Buffalo Avenues (25 feet

required on each street, 0 feet proposed for each

street); side yard setback (15 feet required, 0 feet

proposed), lot coverage (20% permitted, 99%

proposed), open space (38,350 square feet

required, 11,767 square feet proposed), parking

space size (for undersized spaces), and parking

setbacks (3 feet from property line required, 0

feet proposed); and

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• Design waivers for minimum parking space size,

parking space width (nine feet required, eight feet

proposed), and loading zone dimensions.

The proposed development's residential units would comprise three studio

apartments, eighty-five 1-bedroom/1-bathroom apartments, three 2-bedroom/1-

bathroom apartments, seventy-seven 2-bedroom/2-bathroom apartments, and

three 3-bedroom/2-bathroom apartments. The proposal included a new

"stormwater management system," "signage, landscaping, drainage

improvements, curbing, concrete sidewalks, streetscape improvements, fencing,

lighting," and improved utilities.

319 Penn published notice of the December 9, 2021 Board hearing of its

application in a local newspaper and sent copies of the notice by certified mail

to all property owners within 200 feet of the property. 319 Penn obtained

certified mail receipts from the post office, all except the receipt for the mailing

addressed to Diego Cabrera, were stamped. However, post office tracking

history showed Cabrera's mailing was delivered on December 2. Another

mailing addressed to Harold C. Ranges, Jr. was mislabeled with the wrong door

number, delaying its delivery. However, post office tracking history showed

this mailing was delivered, as was a second mailing sent to a company controlled

by Ranges with the same mailing address as Ranges himself. Two days before

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the hearing, 319 Penn submitted to the Board an affidavit showing it mailed

notice to all neighboring property owners.

B.

At the December 9 Board hearing, 319 Penn presented the following

expert testimony:

1. Architect

Albert Arencibia, a licensed architect in seven states with over thirty years

of experience, described the proposed development as a "state-of-the-art

building" and detailed its indoor and outdoor amenities and architectural

features, floor by floor. Arencibia stated the proposed development would

"revitalize the neighborhood" by replacing a vacant building that has been "an

eyesore in the community" with a modern structure "open to the neighborhood"

and compatible with the surrounding aesthetic. The proposed development's

exterior would feature decorative columns, a canopy, lighting to "create a nice

interest hue at night," a landscaped entrance area designed to give off "a nice

soft look" from the street, and transparent panes through which passersby would

be able to see inside the lobby.

Arencibia maintained the proposed development's retail spaces would

"serve the residents of the area" and the building's residents and create a

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commercial corridor on Buffalo Avenue, next to an existing farmer's market. To

serve the retail customers, the retail space included an outdoor courtyard and

separate parking spaces on Columbia Avenue, which would prevent retail

customers from using street parking that could be used by the farmer's market

or neighboring residents.

Arencibia further detailed services offered to the building's residents. It

would feature a two-story parking garage, enter and exit on Columbia Avenue,

staffed with an on-site parking attendant. The building would also have 24/7

"on-site management" to assist residents and a security system with cameras and

on-site security personnel, who would have direct contact the local police

station. Trash collection would be done by a private firm––not the

municipality––at times convenient for residents and neighbors.

Responding to the Board's concerns about the impact on the surrounding

area, Arencibia opined there would be no significant impact on local schools

because, in his experience, projects like this did not attract many families with

school-age children. Answering a question from Mondelli, Arencibia clarified

there would be vehicle access only on Columbia Avenue because it was

"underutilized" compared to Buffalo or Pennsylvania Avenues and was

structurally better suited for the new retail parking.

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2. Engineer

Project engineer Adnan Khan, a licensed professional engineer in four

states and a New Jersey certified municipal engineer with over thirty years of

experience, echoed the improvements Arencibia detailed and described the

planned stormwater management system. He added landscaping would include

shade trees "all around the block" on Columbia, Buffalo, and Pennsylvania

Avenues. New lighting would illuminate the block "to provide a safe passage

for tenants or any passerby" at night. Khan noted that new sidewalks and curb

cuts would be installed.

3. Traffic Engineer

John Corak, a licensed traffic engineer, 1 authored a traffic study

concluding the property was "particularly well-suited for traffic patterns in the

area." He stated traffic would be dispersed "in all different directions" from the

property because it was bounded by four streets. He explained "[a]ll the

different routes to come in and out of the site and an access point that is along

from an access management perspective, the best street that it could be located

on within this design." Additionally, Corak testified the increased traffic from

1

Because Corak had testified before the Board the previous week regarding a

different application, the Board did not have him mention his experience.

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7

the proposed development would still be less than the increase caused by purely

commercial or residential development, as residential use generated less traffic

than other land uses.

The Paterson city planner, noting the proposed development's size itself

required several variances, questioned the traffic impact caused by attracting

hundreds of cars and people to the neighborhood. Corak responded that the

property could accommodate the increased traffic because residents would not

be entering or leaving the site at the same time of day and, in his experience,

residential developments with road connections like those bounding the property

dispersed traffic throughout the day.

Corak also asserted Columbia Avenue was the best place for vehicle

access points because "when you locate access and driveways for developments,

you want to place them on the roadways that are less traveled" so drivers

entering or exiting the property can turn with minimal disruption to existing

traffic. The proposed development would increase the amount of parking on

Columbia Avenue by replacing the existing parallel parking spaces with "90 -

degree right angle spaces," which would accommodate more parked cars than

parallel parking. He added 319 Penn would make the street more conducive to

street parking by eliminating its "one long curb cut." As for residents' on-site

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parking, Corak explained the garage would accommodate several different car

types in the same spaces.

4. Planning Expert

Kathryn Gregory, a New Jersey professional planner for over twenty years

who has served as a city planner for many New Jersey towns, testified regarding

the variances sought by 319 Penn. At the outset of her testimony, the city

planner stated he agreed the property was suitable for the proposed development.

Gregory, using an aerial photograph of the surrounding neighborhood overlaid

with zone boundaries, showed that the property was located at the edge of the

Mixed Use District and bordered another zone where mixed residential and

commercial uses were allowed at higher densities and building heights than

permitted in the Mixed Use District. She also testified the property is much

larger than the surrounding mixed-use lots. She stated that while the proposed

development's tallest point would be forty feet high, the structure would be of

"varying heights." She opined those characteristics warranted use variances to

permit a mixed-use building of the proposed development's scale on the

property.

In addressing the other requested variances, Gregory explained they were

necessary or beneficial, acknowledging "a lot of the variances are very

A-1351-22

9

intermingled" in this development plan. She explained 319 Penn planned to

demolish the property's existing building and construct a new building, which

was more economically feasible than renovating the existing building.

Gregory then opined the proposed development's varied amenities and

features would not substantially detriment the public, but would advance the

following objectives set forth in the Paterson master plan:

• "To improve the appearance of [Paterson's]

streets" by improving "facades of civic and

commercial structures"; providing "new

landscaping, street trees, street furniture,

decorative street lights, and other attractive

streetscape elements"; improving sidewalks; and

reduced graffiti and litter.

• "To provide for a variety of housing types that

will attract and retain a mix of residents from

various socio-economic backgrounds."

• "To address issues related to a high cost of living

from an inflated rental housing market" by

expanding "the supply of housing to help drive

down" housing costs.

• "To provide opportunities for local employment

growth" by attracting industries that will hire

Paterson residents.

She concluded the proposed development represented "more of a highest and

best use than any of the permitted uses in the" Mixed Use District.

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C.

At the hearing's conclusion, the Board approved 319 Penn's application

subject to conditions recommended by the city planner. Almost three months

later, the Board adopted a resolution memorializing its decision.

The Board's resolution summarized the variances requested except the

height variance and recited the presented testimony; 319 Penn's representations,

concerns expressed by Board members and the public; and the city planner's

recommended conditions should the Board approve the application. The Board

made four "findings of fact":

1. The application will not create any undue

interference and/or hardship to the neighborhood.

2. The application is appropriate for the neighborhood.

3. The application will not create any detriment to the

public good.

4. The application will not create a parking hindrance

to the neighborhood . . . .

Next, the resolution stated the Board granted 319 Penn's application,

subject to several specific conditions, including 319 Penn's ongoing compliance

with all relevant laws and "adher[ence] to all of the representations and

conditions placed on the record at" the December 9, 2021 "[p]ublic [h]earing[]."

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D.

Plaintiffs challenged the Board's approval of 319 Penn's application by

filing a complaint in lieu of prerogative writs. They alleged, among other things:

(1) "319 Penn's notice was defective"; (2) the Board's decision was arbitrary,

capricious, and unreasonable; (3) the Board "failed to make any of the required

findings of facts and conclusions of law"; (4) 319 Penn provided insufficient

support for the variances it requested; and (5) 319 Penn's "experts only offered

net opinions without any support in the record."

Following a trial de novo, the trial court issued an order and written

decision affirming the Board's grant of 319 Penn's application subject to

conditions. The court determined the proofs established the required

neighboring property owners received notice of the application and the Board

hearing date, and the Board's failure to have the record reflect that fact did not

deprive it of jurisdiction to consider the application. The court stressed 319

Penn's certified mail receipts and affidavit of mailing showed it gave proper

notice, as "[n]otice is complete upon mailing not upon the return receipt."

Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962).

The court held the Board's decision was not arbitrary, capricious, or

unreasonable because "there was substantial uncontroverted evidence in the

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12

record and in the [r]esolution" to support granting the application. The court

found 319 Penn's experts did not offer net opinions considering their detailed

testimony was supported by facts and documents, including architectural

renderings, revised site plan, traffic study, and engineering reports, in the record.

The court determined the Board's resolution "incorporate[d] the testimony and

representations in the record," "refer[red] to the detailed testimony of the experts

and ma[de] specific findings based on that testimony."

Lastly, the court noted the Board "did not ignore the waiver requirement"

of the zoning ordinance because 319 Penn's notice disclosed its application

included several waivers from zoning ordinance's site plan approval

requirements. There was no objection to the waivers before or during the Board

hearing.

Plaintiffs appealed.

II.

A.

Like the trial court, an appellate court's review of a board of adjustment's

variance decision is "limited to determining whether [it] . . . was arbitrary,

unreasonable, or capricious." Med. Ctr. at Princeton v. Twp. of Princeton

Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). This

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13

court will affirm if the "board's decision comports with the statutory criteria and

is founded on adequate evidence." Burbridge v. Governing Body of Mine Hill,

117 N.J. 376, 385 (1990). We do not substitute our own independent judgment

for that of the zoning board; review is limited to "whether the board could

reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J. 476,

485 (1987); Cummins v. Bd. of Adjustment, 39 N.J. Super. 452, 460 (App. Div.

1956). Courts, however, generally show less deference towards grants than

denials of use variances. Saddle Brook Realty, LLC v. Twp. of Saddle Brook

Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).

"Variances to allow new nonconforming uses should be granted only

sparingly and with great caution since they tend to impair sound zoning." Kohl

v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967). We review a ruling concerning

the adequacy of expert opinion for abuse of discretion. Riley v. Keenan, 406

N.J. Super. 281, 295 (App. Div. 2009). Lastly, this court reviews the trial court's

interpretation of the MLUL or municipal zoning ordinance de novo, as these

determinations present questions of law. See Dunbar Homes, Inc. v. Zoning Bd.

of Adjustment, 233 N.J. 546, 559 (2018). Zoning boards have "'no peculiar skill

superior to the courts' regarding purely legal matters." Ibid. (quoting Chicalese

v. Monroe Twp. Plan. Bd., 334 N.J. Super. 413, 419 (Law Div. 2000)).

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B.

Guided by the above principles, we separately address and reject

plaintiffs' contentions on appeal.

1. Notice

Plaintiffs claim 319 Penn's failed to establish proper notice of the Board

hearing to property owners within 200 feet of their property by marking into

evidence the notices, affidavit of mailing, and affidavit of publication.

Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 352

(App. Div. 2011); Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 295 N.J.

Super. 234, 237 (App. Div. 1996). Plaintiffs also assert the Board failed to state

on the record whether 319 Penn provided proper notice. By failing to strictly

comply with notice requirements, plaintiffs claim the Board's resolution is void.

319 Penn contends it is only required to submit an affidavit of proof of

service with the Board, N.J.S.A. 40:55D-12(i), which it did two days before the

hearing. The Board contends it satisfied its statutory requirements at the

beginning of the hearing by finding 319 Penn satisfied all notice requirements,

and plaintiffs did not show they or anybody else were prejudiced from an alleged

inadequate notice. In addition, defendants point out the post office tracking

history demonstrates all certified mailings of notice were timely mailed at least

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ten days before the hearing and confirmed; notice by certified mail is "complete

upon mailing," N.J.S.A. 40:55D-14; Szczesny, 71 N.J. Super. at 354.

The MLUL mandates that the public receive several forms of notice at

least ten days before a zoning board hears "applications for development,"

including variance applications, N.J.S.A. 40:55D-3. N.J.S.A. 40:55D-12(a).

"[P]roper public notice in accordance with the requirements of the MLUL is a

jurisdictional prerequisite for a zoning board[]" to hear an application. Pond

Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J.

Super. 335, 350 (App. Div. 2008) (citing Perlmart of Lacey, Inc., 295 N.J. Super.

at 237). Among other requirements, the applicant must notify all property

owners "within 200 feet . . . of the property which is the subject of [the] hearing,"

which it may do by sending them notice through certified mail. N.J.S.A.

40:55D-12(b).

As defendants correctly contend, the MLUL merely requires neighboring

property owners "be given" notice. Ibid. It does not require receipt, nor do its

detailed requirements for zoning board hearings require specific jurisdictional

findings, N.J.S.A. 40:55D-10. "'[A]bsent any specific indication of legislative

intent to the contrary,' the court should not read into the statute language that is

simply is not there." Schundler v. Donovan, 377 N.J. Super. 339, 345 (App.

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Div. 2005) (quoting Chase Manhattan Bank v. Josephson, 135 N.J. 209, 225

(1994)).

Plaintiffs offer no legal authority refuting the trial court's reliance on

Szczesny, which concluded notice by mail occurs once the notices are "properly

mailed, regardless of [their] receipt." 71 N.J. Super. at 354. They provide no

proof that a property owner entitled to notice did not receive it. Courts presume

mail "correctly addressed, stamped and mailed was received by the party to

whom it was addressed" unless a party shows the intended recipient "never in

fact received" it. Ibid. The tracking histories and affidavits, establish that all

property owners within 200 feet of the proposed development received proper

notice.

2. Experts' Opinions

Plaintiffs contend that 319 Penn's traffic engineer Corak and planner

Gregory offered net opinions, which the Board and trial court should not have

considered. Defendants argue the trial court correctly determined the experts

did not offer net opinions, as they all explained the facts, data, or evidence they

relied on, and the Board did not err by finding the experts credible, Baghdikian

v. Bd. of Adjustment, 247 N.J. Super. 45, 49 (App. Div. 1991), and relying on

their testimony, TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment, 215 N.J.

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26, 46-47 (2013); Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75,

86-87 (2002).

N.J.R.E. 703 requires an expert's opinion be "grounded in 'facts or data

derived from (1) the expert's personal observations, or (2) evidence admitted at

the trial, or (3) data relied upon by the expert which is not necessarily admissible

in evidence but which is the type of data normally relied upon by experts.'"

Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. County of Essex,

196 N.J. 569, 583 (2008)). "The net opinion rule is a 'corollary of [N.J.R.E.

703] . . . which forbids the admission into evidence of an expert's conclusions

that are not supported by factual evidence or other data.'" Id. at 53-54 (alteration

in original) (quoting Polzo, 196 N.J. at 583). The rule "mandates that experts

'be able to identify the factual bases for their conclusions, explain their

methodology, and demonstrate that both the factual bases and the methodology

are reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417

(1992)). "An expert's conclusion 'is excluded if it is based merely on unfounded

speculation and unquantified possibilities.'" Ibid. (quoting Grzanka v. Pfeifer,

301 N.J. Super. 563, 580 (App. Div. 1997)). "[A]n expert offers an inadmissible

net opinion if he or she 'cannot offer objective support for his or her opinions,

but testifies only to a view about a standard that is personal.'" Davis v. Brickman

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Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v.

New Cmty. Corp., 207 N.J. 344, 373 (2011)) (internal quotation marks omitted).

An expert's testimony must not constitute speculation. Grzanka, 301 N.J. Super.

at 580. Although our evidentiary rules do not strictly apply in zoning board

hearings, N.J.S.A. 40:55D-10(e), our courts have held the net opinion rule

applies in variance proceedings, e.g., New Brunswick Cellular Tel. Co. v.

Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 (1999).

Both experts relied on specific characteristics of the proposed

development, property, or surrounding neighborhood when explaining their

respective opinions. Corak did not, as plaintiffs assert, fail to provide any basis

for his opinion that the property's size and location were well-suited to disperse

incoming traffic; explain how traffic would be distributed when vehicles could

only enter or exit the site from Columbia Avenue, how the proposed

development would affect local traffic or schools; or cite any traffic study or

other data marked into evidence. Corak thoroughly detailed his findings based

on studying the property and its surrounding streets.

Likewise, plaintiffs incorrectly argue Gregory cited no evidence to

"explain the 'why and wherefore' of [her] opinions" about the proposed

development's benefits and lack of substantial detriment to the public. Gregory

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relied on an annotated aerial photograph and drew on the property's location

relative to neighboring zones. We discern no abuse of discretion in the trial

court's determination their testimony was not inadmissible net opinion. See

Pomerantz, 207 N.J. at 371.

3. Use Variance Evidence

Plaintiffs argue 319 Penn "failed, miserably," to justify the requested use

variances. Specifically, 319 Penn did not establish the proposed development

is particularly suitable for the property; proffered improper reasons for granting

the use variances; failed to show how the proposed development would not

substantially impair the intent and purpose of the zoning ordinance and master

plan when it is incompatible with the Mixed Use District's permitted uses and

would substantially detriment the local community.

Defendants contend the Board had sufficient evidence to grant the

requested use variances based on the expert testimony of their planner. They

also point out the city planner agreed the property is suitable for the proposed

development plan.

We conclude the Board's decision was supported by the record, as

established during the hearings, and was not arbitrary, capricious, or

unreasonable. See J.D. Constr. Corp. v. Isaacs, 51 N.J. 263, 270 (1968); Kramer

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v. Bd. of Adjustment, 45 N.J. 268, 296 (1965); Cohen v. Bd. of Adjustment, 396

N.J. Super. 608, 615 (App. Div. 2007). In reaching this conclusion, we are

mindful that "[v]ariances to allow new nonconforming uses should be granted

only sparingly and with great caution since they tend to impair sound zoning."

Kohl, 50 N.J. at 275; see also Burbridge, 117 N.J. at 385. And based on our de

novo review of the law, the Board complied with the MLUL as well as its zoning

ordinances. See Dunbar Homes, Inc., 233 N.J. at 559.

To obtain a use variance under N.J.S.A. 40:55D-70(d), an applicant must

satisfy both positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J.

152, 156 (1992). The positive criteria require "the proposed site is particularly

suitable for the proposed use." Smart SMR of N.Y., Inc. v. Borough of Fair

Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co.,

107 N.J. 1, 4 (1987)). "To satisfy the negative criteria, an applicant must show

that the use will not substantially impair the purpose and intent of the zoning

ordinance, or constitute a substantial detriment to the public good." New

Brunswick Cellular Tel. Co., 160 N.J. at 15.

The trial court correctly determined 319 Penn's witnesses satisfied these

criteria. All four 319 Penn's experts' testimony referenced specific

characteristics of the property and its surrounding streets in to support the prosed

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development plan. See Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 565

(App. Div. 1996) (requiring "special reason[s]" grounded in "a peculiar feature"

specific to the property). And the planning expert pointedly analyzed the zoning

ordinance and master plan's objectives. Though plaintiffs note the proposed

development plan contradicts the city's other master plan goals, the Board

properly considered the proposed development's pros and cons. The record

demonstrates the Board "followed the statutory guidelines and properly

exercised its discretion" when approving 319 Penn's use variance request. See

Med. Ctr. at Princeton, 343 N.J. Super. at 199. The Board properly exercised

its fact finder role in accepting the experts' opinions, with no contrary evidence

showing its determination was not "reasonably made, that decision is conclusive

on appeal." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of

Adjustment, 361 N.J. Super. 22, 41 (App. Div. 2003).

4. Bulk Variances, Design Waivers, and Site Plan Approvals

Plaintiffs contend 319 Penn's application and the Board's resolution erred

by only addressing one of the twenty-four factors, i.e., stormwater, set forth in

the zoning ordinance's site plan review requirements, Paterson, N.J., Code ch.

483, art. III, § 300-6.5, in either. They contend 319 Penn's experts failed to

address the impracticality and undue hardship requirements for granting parking

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design waivers, which the Board also did not mention in its resolution. N.J.S.A.

40:55D-51(b). Plaintiffs add it is unclear what bulk variances, site plan, or

design waivers the Board ultimately approved because 319 Penn never marked

the proposed site plan into evidence.

Defendants emphasize there was sufficient evidence to support the

Board's grant of the requested bulk variances, parking design waivers, and site

plan approval based upon the experts' testimony. 319 Penn argues "approval of

a use variance compels approval of variances from the bulk regulations and the

design waivers" because the bulk variances and design waivers were "ancillary

to the" requested use variances, Price v. Himeji, LLC, 214 N.J. 263, 301 (2013),

as a zoning board must "consider the overall site design" when deciding a use

variance application, Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J.

Super. 613, 621 (App. Div. 2005). The Board agrees and adds it "advance[d]

the purposes of the MLUL and create[d] benefits that outweigh[ed] any

detriment caused by deviating from the zoning ordinance." Lang v. Zoning Bd.

of Adjustment, 160 N.J. 41, 57 (1999). 319 Penn also maintains the Board "did

not ignore the site plan ordinance" by granting the waivers after it indicated it

would seek relief from specific site plan ordinance requirements in its

application and notices.

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We discern no error in the Board's decision granting bulk variances,

design waivers, and site plan approval to 319 Penn. Under the MLUL, a zoning

board may grant a bulk variance when the MLUL's purposes "would be advanced

by a deviation from the zoning ordinance requirements and the benefits of the

deviation would substantially outweigh any detriment." N.J.S.A. 40:55D -

70(c)(1). Defendants aptly rely on Price. There, our Supreme Court declined

to reverse a zoning board's determinations for a bulk variance because while

"the Board referred to the [bulk] variances as being subsumed in the

consideration of the [use] variances, the record of the Board's review of the

building's overall design amply supports its decision" to grant the bulk

variances. 214 N.J. at 301. Several of 319 Penn's experts, most notably its

planner, opined the proposed development's benefits would outweigh its

detriments, citing the numerous improvements it would make to the surrounding

neighborhood and master plan objectives it would promote. As she recognized,

the characteristics favoring the requested use variances also supported the bulk

variances.

As to the design waivers, a zoning board may grant design waivers when

approving a site plan "as may be reasonable and within the general purpose and

intent of the [zoning ordinance's] provisions for site plan review . . . if the literal

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enforcement of one or more provisions of the ordinance is impracticable or will

exact undue hardship because of peculiar conditions pertaining to the land in

question." N.J.S.A. 40:55D-51(b). 319 Penn's planner and traffic engineer

equally addressed these criteria. The planning expert distinguished the property

from surrounding lots, explaining the permitted uses for the Mixed Use District

were not suitable for it. The traffic engineer explained the property's location

near four streets allowed traffic to disperse in different directions throughout the

day, creating specific traffic challenges that the application would address.

Finally, the Board's resolution in not citing the site plan approval

requirements was not inadequate because they largely involve compliance with

various local, state, or federal laws. Paterson, N.J., Code ch. 483, art. III, § 300-

6.5(B). The Board's conditions for approval included 319 Penn obtaining the

necessary approvals from relevant local or state authorities in compliance with

state and federal laws as well as other local ordinances. The trial court correctly

observed 319 Penn also sought waivers from other site plan approval

requirements, which the Board granted with the rest of the application. Plaintiffs

do not claim this waiver was invalid.

5. The Board's Resolution

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Plaintiffs contend the Board's resolution was inadequate and should be

voided as it set forth "no findings and conclusions concerning special reasons

for the granting of the use variance" and no factual findings as to particular

suitability, the intent and purpose of the zoning ordinance or master plan,

positive or negative criteria for granting use variances, or 319 Penn's

"compliance with the Site Plan Ordinance for preliminary and final site plan

approval." They argue the resolution's "whereas" clauses are not findings

because they merely recite testimony and comments from the hearing.

Defendants contend the resolution properly detailed the application, all

witnesses' testimony, the exhibits, remarks made by members of the public, the

Board's concerns and 319 Penn's representations in response, and the city

planner's concerns and recommended conditions. Defendants assert the positive

and negative criteria for use variances were set forth in the resolution.

The MLUL requires a zoning board's resolution memorialize variance and

site approval decisions in a resolution setting forth the factual findings and legal

conclusions supporting the decision. N.J.S.A. 40:55D-10(g). The resolution

cannot simply recite "testimony or conclusory statements couched in statutory

language." N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, 370 N.J. Super. 319,

332-33 (App. Div. 2004). Instead, it "must contain sufficient findings, based on

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the proofs submitted, to satisfy a reviewing court that the board has analyzed the

applicant's variance request in accordance with the statute and in light of the

municipality's master plan and zoning ordinances." Ibid.

The Board's resolution appropriately identified specific facts and details

from 319 Penn's proposed development plan and its experts' testimony

supporting the application. It also acknowledged several Board members and

the public had raised specific concerns about the proposed development,

detailing those concerns separately in the resolution.

We agree with plaintiffs that the resolution does not address each variance

individually or show which facts supported which statutory criteria, instead

analyzing the application as a whole. See Com. Realty & Res. Corp. v. First

Atl. Props. Co., 122 N.J. 546, 566 (1991). In particular, the resolution does not

mention the height variance among the variances 319 Penn requested, despite

being addressed at the hearing. Nor does it mention the traffic engineer's

qualifications or confirm the Board accepted him as an expert, even though the

resolution discusses his testimony. Nevertheless, considering the extensive

hearing testimony, the Board's decision granting the application is sufficiently

supported, and there is no need to remand for an amplified resolution. See id.

A remand would unnecessarily delay this development project. See R. 1:1-2(a).

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Affirmed.

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