KDLi9 LLC v. THE CITY OF JERSEY CITY ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE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-0142-24

KDLi9 LLC,

Plaintiff-Appellant,

v.

THE CITY OF JERSEY CITY

ZONING BOARD OF

ADJUSTMENT,

Defendant-Respondent.

_________________________

Submitted September 23, 2025 – Decided October 8, 2025

Before Judges Gilson and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-2958-23.

Castano Quigley Cherami LLC, attorneys for appellant

(Gregory J. Castano, Jr., and Schuyler Abbott, on the

briefs).

Vincent J. La Paglia, attorney for respondent.

PER CURIAM

Plaintiff KDLi9, LLC, appeals from the August 9, 2024 Law Division

order dismissing plaintiff's complaint in lieu of prerogative writs and affirming

defendant The City of Jersey City Zoning Board of Adjustment's (Board) denial

of plaintiff's variance application pursuant to N.J.S.A. 40:55D-70(d)(1) of the

Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -171. Having

reviewed the record, parties' arguments, and applicable law, we affirm.

I.

Plaintiff owns the property, Lot 28, Block 2802, on Central Avenue in

Jersey City. The property's lot area is 8,065 square feet, and it is L-shaped with

frontages on Lincoln Avenue and Central Avenue. The property's width is fifty-

one feet and ten inches. The property has no parking, insufficient off-street

parking nearby, and the closest municipal parking lot "reaches maximum

capacity during peak hours."

In February 2019, the Board granted plaintiff's predecessor in title, AIJ

Central Avenue, LLC (AIJ) variance relief under N.J.S.A. 40:55D-70(d)(1) due

to the property's location in "split-lot zones," which created "hardships to

conforming." The Board granted AIJ's application to construct a five-story

mixed-use commercial and residential building. AIJ's approved plans permitted

a 7,213 square feet supermarket on the ground floor. The top four floors were

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to include nineteen one-bedroom apartments and eight two-bedroom apartments.

The Board granted the use variance noting that although AIJ's project provided

no parking, AIJ "complie[d] with the bicycle requirements by providing twenty-

seven indoor spaces and the ten required spaces on the exterior for the

commercial unit." Moreover, the Board found AIJ's "proposed plan eliminate[d]

a curb cut and provide[d] for additional on-street parking and [wa]s a benefit as

a whole."

Plaintiff purchased the property after AIJ secured the land use approvals.

After over eighty percent of the building's construction was completed, plaintiff

filed its October 13, 2022 application, seeking a use variance under N.J.S.A.

40:55D-70(d)(1) for the proposed religious use of a Hindu temple on the first

floor. Plaintiff also requested bulk variances under N.J.S.A. 40:55D-70(c) for:

lot width; lot area; and parking spaces.

Plaintiff further proposed that "the ground floor would contain the

prayer/worship space, with ancillary spaces in the [basement]." It also requested

a reduced 1,000 square feet of commercial space fronting on Central Avenue.

The proposed house of worship had no planned prayer space seating. Further,

the house of worship had "no off-street parking where [fifteen] spaces would be

required."

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Sixty-eight percent of plaintiff's property was in the Neighborhood

Commercial District (NC zone). The NC zone "recognize[d] the existence and

importance of neighborhood business districts and provide ground floor

commercial in mixed-use buildings to promote walkability." Jersey City, N.J.,

Code § 345-45(A) (2022) (amended by Jersey City, N.J., Ordinance 23-103

(Oct. 25, 2023)). Permitted uses in the NC zone included:

1. Retail sales of goods and services; 2. Offices; 3.

Financial institutions without drive-thru facilities; 4.

Restaurants, . . . 5. Theaters and museums; 6.

Governmental uses; 7. Parks and playgrounds; 8.

Residential apartments above ground floor; 9.

Educational facilities, public and private, above ground

floor; 10. Bars; 11. Child day care centers; 12. Medical

offices; 13. Health clubs; 14. Cafes; 15. Any

combination of the above.

[§ 345-45(B).]

Additionally, thirty-two percent of the property was in the Neighborhood

Housing District (R-1 zone). The R-l zone ordinance provided:

1. The purpose of this district is to accommodate

existing housing and encourage compatible in-fill

development with . . . one- and two-family homes that

preserve the streetscape, utilize on-street parking where

the frontages are narrow and maintain the low-rise

character of the area.

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2. An intended consequence of this designation is

preserving the integrity of residential neighborhoods,

limiting non-residential uses to appropriate areas,

increasing the availability of community resources and

reinforcing the viability of existing neighborhood

districts.

[§ 345-40(A) (2022) (repealed by Jersey City, N.J.,

Ordinance 23-103 (Oct. 25, 2023)).]

Under Ordinance Section 345-40(B), permitted uses included houses of

worship. Unlike the NC zone, the R-1 zone did not permit mixed uses. Section

345-40(C)(4) permitted accessory uses in the R-1 zone, including "[m]eeting

rooms, recreation areas[,] and similar uses normally associated with houses of

worship."

In the R-1 zone, under Section 345-40(F)(1), the minimum off-street

parking requirements for lots with one or two-family dwellings exceeding 50

feet were one space per dwelling unit. Pursuant to Section 345-40(G)(1), the

minimum lot size for a house of worship was 10,000 square feet, and the

maximum height was "[f]our stories and forty (40) feet, exclusive of spires,

towers and other ornamental features." The R-1 zone minimum parking

standards for houses of worship were:

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One space for . . . ten (l0) seats . . . . Houses of worship

without seats or pews shall allow for ten (10) square

feet per prayer space in calculating space and shall

provide parking at a rate of one stall for each one

hundred (100) square feet of prayer space.

[§ 345-40(I)(1).]

On April 13, 2023 and May 11, the Board held public hearings on

plaintiff's application. Plaintiff presented the testimony of: Yogesh Mistry, an

architect; Nittin Kohli, its owner; and Carolyn Worstell, a professional planner.

The Board also heard from Yousef Saleh and members of the public, including

Central Avenue Special Improvement District (SID) members.

Mistry testified that the temple was "not . . . a destination facility," and

"5,239 square feet of the basement. . . . [would become] religious space,"

specifically "support spaces" for the ground floor prayer space. Regarding the

requested use and bulk variances, Worstell testified that: the house of worship

was "not permitted in the NC[ zone]" but "[wa]s permitted in the R-1 [zone]";

"access to the religious use" would not be "from Central Avenue"; "Central

Avenue itself is a commercial corridor," and there was "significant transit access

within a block of this particular site"; the house of worship would be under the

"minimum standard[s]" for the R-1 zone, and "the benefit . . . outweigh[ed] the

deficit"; "the proposed project [wa]s not providing off-street parking," and

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"[fifteen] spaces would be required"; "the project . . . advance[d] the purposes

of" the MLUL because "a house of worship w[ould] promote the general

welfare," and the "commercial space [wa]s . . . consistent with" the area; and the

"negative criteria" were satisfied because the "project . . . [would not] result in

a substantial detriment to the public good or the general welfare," and "[h]ouses

of worship inherently promote the public welfare" with no "substantial detriment

to traffic or parking."

Members of the public objected to the revised proposed house of worship

use, mentioning parking issues on Central Avenue. One SID member testified

that plaintiff's proposal "to put a thousand[-]f[ee]t [of] retail up front and take

all the rest for worship . . . . does[ not] work for a retail corridor." Another SID

member objected, stating, "this [wa]s a terrible project," and "the whole

problem . . . is parking." Saleh testified that SID's disfavor of "the proposed

project ha[d] nothing to do with the religion" but "with the fact that . . . [the

area] is a commercial corridor." Saleh relayed that SID, a "federation of

businesses that come together to tax themselves essentially for the betterment of

the residents," disapproved of the "religious nonprofit building[] . . . due to tax

implications."

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At the conclusion of plaintiff's presentation, its counsel requested the

Board grant the use variance application, stating:

[O]ur team over the last couple of weeks was made very

aware of . . . SID's position on the project. I will say

our ownership and our office did make other

community outreach as well. . . .

....

. . . [W]e[ are] really working within the bounds

of that previously approved project. [Plaintiff] had a

different intent for this particular commercial space

respecting the same commercial corridor and giving

them nod to that with the commercial space fronting on

Central [Avenue]. . . .

Francisco Espinoza, the City Planner, had raised to the Board the

Religious Land Use And Institutionalized Persons Act 1 (RLUIPA), stating:2

I just want to bring everyone's attention to . . . RLUIPA

. . . . This is a Federal law that among other things

protects religious institutions from unduly burdensome

or discriminatory land use regulations . . . . It is a

complex statute with five separate provisions which

protects religious exercise in different but sometimes

overlapping ways.

So the first one . . . bars land use regulations that

impose "a substantial burden" on religious exercise. It

1

42 U.S.C. §§ 2000cc to 2000cc-5.

2

We have made stylistic changes to this section of the hearing transcript without

brackets for ease of reading.

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requires governments to treat houses of worship as

favorably as non-religious assemblies. It bars

governments from discriminating among religions.

Bars governments from total exclusions of religious

assemblies. Bars governments from unreasonabl[e]

limitations of religious assemblies. . . .

Espinoza also noted prior to the end of the public comments that Jersey City

permits "houses of worship in all [its] residential zones. And [p]lanning is

consistent in not permitting [houses of worship] in all of our commercial

corridors." Plaintiff asked Espinoza no questions regarding RLUIPA, offered

no expert testimony on RLUIPA, and did not raise the RLUIPA before the Board

or request any related findings.

On May 11, the Board denied plaintiff's variance application, with four

members voting in favor and three against.3 On July 20, the Board passed a

resolution4 denying the application "whether viewed under a particular-

suitability test or as an inherently beneficial use."

Regarding particular suitability, the Board's resolution found:

3

"[A] variance may be granted by a municipal board of adjustment under

N.J.S.A. [40:55D-70(d)] only if at least five of the seven members of the board

agree to it." Comm. for a Rickel Alt. v. Linden, 214 N.J. Super. 631, 636 (App.

Div. 1987).

4

N.J.S.A. 40:55D-10(g) requires municipal agencies to memorialize decisions

in a resolution.

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30. . . . Worstell argued that a house of worship "does

inherently promote public welfare." For particular

suitability purposes, however, the site would have to be

particularly appropriate for a house of worship, and in

this case it clearly is not. [Plaintiff]'s lot is undersized

for a house of worship, and it has never been used or

approved for same. . . .

31. . . . Worstell points out that [the property] is

substantially larger than the 2,500-s[quare feet]

minimum area required in the NC[ z]one . . . . [T]he

property is also substantially smaller than the 10,000

[square feet] that would be required as a permitted R-1

use . . . . The Governing Body considers the parking

impact of commercial use in the N[C z]one . . . to be

less problematic than the parking impact where it is

permitted in R-1 . . . ; [plaintiff] did not present

persuasive evidence for the Board to find otherwise.

....

33. . . . Worstell refers to "proximity to other higher

intensity uses." That has never served as grounds for

relief . . . [, and] [e]ven if proximity to other higher

intensity uses demonstrated site suitability, that MLUL

goal could be achieved with a permitted use. . . .

....

35. The Board was not persuaded by []Worstell's

suggestion that reducing the commercial space to 1,000

s[quare feet] . . . would retain its commercial character

on Central Avenue . . . . The Board does not find that

the retention of token commercial space warrants

intensive additional parking impact for a nonpermitted

use.

....

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37. The presence of "transit service to the

neighborhood inclu[ding] bus lines" does not make it

particularly suitable.

The Board also found plaintiff's proposed use did not qualify as an

inherently beneficial use. It stated:

57. While the MLUL does not specifically identify

houses of worship as inherently beneficial . . . , the

Governing Body permits the use. However, the use is

subject to certain bulk requirements, including the

provision of minimum off[-]street parking. The public

interest in houses of worship is tempered by the public

interest in ensuring that such uses have adequate

parking. . . .

58. [Plaintiff] did not argue that the apartments or the

commercial space are inherently beneficial. Thus, this

would be at most a mixture of an inherently beneficial

[use] and that which is not inherently beneficial.

The Board further found plaintiff "failed to meet the enhanced standard" for

negative criteria. Finally, the Board noted regarding RLUIPA that:

62. There was testimony from . . . Espinoza and there

is language in the Interdepartmental Memo,

regarding . . . RLUIPA[]. [Plaintiff] did not request the

Board to make findings or otherwise assume

jurisdiction respecting that federal legislation.

On August 18, 2023, plaintiff filed its complaint in lieu of prerogative

writs alleging the Board's use variance denial was arbitrary, capricious, and

unreasonable. Moreover, plaintiff averred the Board's use violated RLUIPA

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because the Board failed "to provide the same consideration to the [a]pplication

as it . . . previously g[ave] to non-religious assembly/institution uses in the area."

On August 9, 2024, the trial court affirmed the Board's denial of plaintiff's

application and dismissed the complaint. The court found: "[p]laintiff's

proposed use c[ould] not be considered . . . 'inherently beneficial'"; "the

[p]roperty [wa]s not particularly suitable for use as a house of worship"; plaintiff

"ha[d] not proven the positive or negative criteria necessary to obtain a (d)(1)

variance"; and plaintiff was not permitted to seek relief under RLUIPA's equal

terms provision, "as the City of Jersey City [wa]s not included as a party." While

plaintiff argued that it was not seeking to invalidate the NC zone ordinances

under RLUIPA, the court found Jersey City was an essential party on the

RLUIPA claim because a ruling in plaintiff's favor "would require all proposed

houses of worship in the N[C] zone to be approved by the Board[,] which would

effectively rezone the N[C] zone."

On appeal, plaintiff contends the court erred in: finding the Board was

not arbitrary, capricious, and unreasonable; and failing to reverse the Board

under RLUIPA.

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II.

"When reviewing a trial court's decision regarding the validity of a local

board's determination, 'we are bound by the same standards as . . . the trial

court.'" Jacoby v. Zoning Bd. of Adjustment of Englewood Cliffs, 442 N.J.

Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem

Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "[A] court may not

substitute its judgment for that of the board unless there has been a clear abuse

of discretion." Berardo v. City of Jersey City, 476 N.J. Super. 341, 353 (App.

Div. 2023) (alteration in original) (quoting Price v. Himeji, LLC, 214 N.J. 263,

284 (2013)). We review questions of law, including the interpretation of an

ordinance, de novo. Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of

Franklin, 233 N.J. 546, 559 (2018).

"[A]n overriding principle governing judicial review of variance decisions

by boards of adjustment is that, assuming an adequate basis in the record for a

board's conclusions, deference to the judgment of local zoning boards ordinarily

is appropriate." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41,

58 (1999). "In evaluating a challenge to the grant or denial of a variance, the

burden is on the challenging party to show that the zoning board's decision was

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'arbitrary, capricious, or unreasonable.'" Price, 214 N.J. at 284 (quoting Kramer

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

"A board acts arbitrarily, capriciously, or unreasonably if its findings of

fact . . . are not supported by the record, or if it usurps power reserved to the

municipal governing body or another duly authorized municipal official." Ten

Stary Dom Pishin v. Mauro, 216 N.J. 16, 33 (2013). Pursuant to N.J.S.A.

40:55D-70(d) of the MLUL, "[a] board of adjustment has authority to grant a

variance and permit the nonconforming use of zoned property." Burbridge v.

Mine Hill, 117 N.J. 376, 384 (1990). "[B]ecause of the legislative preference

for municipal land use planning by ordinance rather than variance, use

variances . . . may be granted only in exceptional circumstances." Advance at

Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433 N.J. Super.

247, 253 (App. Div. 2013) (quoting Kinderkamack Rd. Assocs., LLC v. Mayor

& Council of Oradell, 421 N.J. Super. 8, 12 (App. Div. 2011)). "[P]ublic bodies,

because of their peculiar knowledge of local conditions, must be allowed wide

latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment of

Wall, 184 N.J. 562, 597 (2005). "Courts give greater deference to variance

denials than to grants of variances, since variances tend to impair sound zoning."

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

Super. 177, 199 (App. Div. 2001).

An applicant seeking a use variance must establish proof of both the

"positive and negative criteria." Price, 214 N.J. at 285 (quoting Smart SMR of

N.Y., Inc. v. Fair Lawn Zoning Bd. of Adjustment, 152 N.J. 309, 323 (1998)).

"The requirement that a use variance be based on proof of the positive criteria

arises from the language of the MLUL, which limits the grant of a use variance

to those cases in which there is a showing of 'special reasons.'" Ibid. (quoting

N.J.S.A. 40:55D-70(d)). "The MLUL does not define special reasons, but

'subsequent judicial interpretations have "infus[ed] substantive meaning into the

'special reasons' standard."'" Ibid. (alteration in original) (quoting Coventry

Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 295 (1994)).

Our Supreme Court has "observed that 'special reasons exist whenever a

variance proposes to secure any of the statutory zoning goals.'" Ibid. (quoting

Burbridge, 117 N.J. at 386). Thus, "the promotion of the general welfare as the

zoning purpose that most clearly amplifies the meaning of special reasons."

Medici v. BPR Co., 107 N.J. 1, 18 (1987). "Special reasons" generally fall into

one of three categories:

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(1) [W]here the proposed use inherently serves the

public good, such as a school, hospital or public

housing facility . . . ; (2) where the property owner

would suffer "undue hardship" if compelled to use the

property in conformity with the permitted uses in the

zone . . . ; and (3) where the use would serve the general

welfare because "the proposed site is particularly

suitable for the proposed use."

[Saddle Brook Realty, LLC v. Twp. of Saddle Brook

Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App.

Div. 2006) (quoting Smart SMR, 152 N.J. at 323).]

Our Supreme Court held in Medici that in addition to establishing special

reasons, "it [is] appropriate to require an enhanced quality of proof, as well as

clear and specific findings by the board of adjustment, that the grant of a use

variance is not inconsistent with the intent and purpose of the master plan and

zoning ordinance," also known as negative criteria. 107 N.J. at 4. A showing

"to satisfy the first of the negative criteria focuses on the effect that granting the

variance would have on the surrounding properties." Price, 214 N.J. at 286.

Specifically, an applicant must show that a variance "can be granted without

substantial detriment to the public good." New Brunswick Cellular Tel. Co. v.

Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (quoting

N.J.S.A. 40:55D-70(d)). Regarding the second factor of the negative criteria,

the Court elucidated that an applicant's proofs and a board's findings "must

satisfactorily reconcile the grant of a use variance with the ordinance's continued

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omission of the proposed use from those permitted in the zone, and . . . provide

a . . . substantive basis . . . that the variance 'will not substantially impair the

intent and purpose of the zone plan and zoning ordinance.'" Medici, 107 N.J. at

4 (quoting N.J.S.A. 40:55D-70(d)).

In 2009, the Legislature enacted N.J.S.A. 40:55D-4, defining an

"inherently beneficial use" as one that "is universally considered of value to the

community because it fundamentally serves the public good and promotes the

general welfare. Such a use includes, but is not limited to, a hospital, school,

child care center, group home, or a wind, solar or photovoltaic energy facility

or structure." See also House of Fire Christian Church v. Zoning Bd. of

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

use of a church or house of worship "is an inherently beneficial use of the land").

An inherently beneficial use is presumed to satisfy the positive criteria, and it

need not satisfy an "enhanced quality of proof" for the negative criteria as set

forth in Medici. Salt & Light Co. v. Willingboro Twp. Zoning Bd. of

Adjustment, 423 N.J. Super. 282, 287 (App. Div. 2011). Despite the reduced

standard of proof, a board need not automatically grant a proposed variance for

an inherently beneficial use; rather, an evaluative process must be employed to

determine whether an inherently proposed use is satisfied. Sica v Bd. of

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Adjustment of Wall, 127 N.J. 152, 165-66 (1992). "This balancing, '[w]hile

properly making it more difficult for municipalities to exclude inherently

beneficial uses . . . permits such exclusion when the negative impact of the use

is significant.'" Meridian Hosps. Corp. v. Borough of Point Pleasant, 325 N.J.

Super. 490, 500 (App. Div. 1999) (alteration in original) (quoting Sica, 127 N.J.

at 166).

III.

A.

We first address plaintiff's arguments that the Board erred in not granting

its use variance application because the proposed house of worship is an

inherently beneficial use and is particularly suitable. Plaintiff contends

competent evidence in the record supported the Board's granting of the

application, and therefore, the Board's denial is arbitrary, capricious, and

unreasonable. We are unpersuaded.

Notably, plaintiff filed the present land use application after eighty

percent of the mixed-use, five-story building was constructed pursuant to the

Board's previously granted (d)(1) hardship use variance in 2018. The Board had

approved the prior use variance, permitting the combined retail and residential

property, in part because the property is split between two zones, the R-1 and

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NC zones. Plaintiff's present application requested an increase from two uses

to three proposed uses—residential, commercial, and a house of worship. The

property's location is in a recognized retail corridor. Only one of the property's

two zones permitted houses of worship. Relevantly, the majority of plaintiff's

property—approximately 68%—is in the NC zone, which did not permit houses

of worship, leaving only 32% in the R-1 zone, which permitted a one-story house

of worship as opposed to plaintiff's five story building. § 345-40(G)(1). We

also note that while plaintiff's proposed house of worship did not include

seating, one parking space for every 100 square feet of prayer space was

required. § 345-40(I)(1). Therefore, plaintiff was required to have at least

fifteen parking spaces, but its application included no parking.

Plaintiff also contends that its mixed-use N.J.S.A. 40:55D-70(d)(1)

application should have been viewed as an inherently beneficial use because it

included a house of worship. Undisputedly, the Legislature's 2009 amendment

to N.J.S.A. 40:55D-4 does not specifically include a house of worship as an

inherently beneficial use. However, prior to N.J.S.A. 40:55D-4's enactment,

appellate courts held that houses of worship were an inherently beneficial use

because they promote the public's general welfare. See, e.g., Kali Bari Temple

v. Zoning Bd. of Adjustment of Readington, 271 N.J. Super. 241, 248 (App.

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Div. 1994) ("It has been held that a church use is inherently beneficial.").

Notably, Worstell did not specifically address that plaintiff's use variance

application sought multiple uses—residential, retail, and a house of worship.

Plaintiff's argument that its use variance application qualified as an

inherently beneficial use is misplaced because the Board had already granted a

hardship use variance for the mixed-use building, and plaintiff's mixed-use

application that included an additional house of worship with other uses is

clearly distinguishable from a single use house of worship variance application.

The Board correctly found plaintiff's application "would be at most a mixture of

an inherently beneficial" use. It has been recognized that including a house of

worship "as a . . . component" of a larger mixed-use project does not turn "the

entire project into an inherently beneficial use for purposes of obtaining a (d)(1)

variance." Advance at Branchburg II, LLC, 433 N.J. Super. at 258. Thus, the

Board's review of the positive criteria in relation to the mixed use was not in

error. As the court noted, "[t]he [p]roperty w[ould] have twenty-seven

residential units[,] and 61.4% of the floor area w[ould] be for residential use,"

so "[e]ven assuming . . . an inherently beneficial use, [because] a house of

worship w[ould] not be the predominant use of this [p]roperty, . . . the entire

project cannot be considered inherently beneficial."

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The record supports the Board's reasoning that "[t]he building exists

because of a prior Board approval with variance relief," and plaintiff "enjoy[s]

the benefit of that variance relief, which includes the absence of parking." We

discern no error in the Board's consideration of the prior variance relief in

evaluating plaintiff's new application. The record amply supports the Board's

denial of plaintiff's use variance application, because it failed to satisfy the

positive and negative criteria and was not an inherently beneficial use. See

Saddle Brook Realty, 388 N.J. Super. at 76.

We also reject plaintiff's argument that the Board was arbitrary,

capricious, and unreasonable in determining that "the location [wa]s not

particularly suited for the temple" and other uses. Because plaintiff's application

was "not 'inherently beneficial,'" it was required to "satisfy not only the 'positive

criteria[]' but also the negative criteria by 'an enhanced quality of proof.'" Cell

S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 90 (2002) (quoting Smart

SMR, 152 N.J. at 323) (internal quotation marks omitted).

The Board was entitled to decide questions of credibility and accept or

reject the witnesses' and experts' testimony and other evidence. See TSI E.

Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215 N.J. 26, 46

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(2013); N.J.S.A. 40:55D-10 (listing a board's powers during hearings for

applications for development, including the power to exclude evidence).

After considering all the testimony, the Board found plaintiff's proposed

house of worship did not satisfy the positive criteria. It noted that Jersey City

permits houses of worship in several zones and that for special reasons regarding

particular suitability, plaintiff had to show a nexus between the proposed house

of worship's benefit to the general welfare and the site's development being

particularly appropriate for the use. The record supports the Board's conclusion

that the property was "not an 'appropriate location'" to add a house of worship

because "the site provide[d] no parking," and a "severe parking crisis in this

particular area [wa]s unarguable."

A court generally "will not substitute its judgment for that of a board 'even

when it is doubtful about the wisdom of the action.'" Cell S. of N.J., 172 N.J. at

81 (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment of Harrington Park,

90 F. Supp. 2d 557, 563 (D.N.J. 2000)). "While a board may reject expert

testimony, it may not do so unreasonably, based only upon bare allegations or

unsubstantiated beliefs." N.Y. SMSA, L.P. v. Bd. of Adjustment of

Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004); see also Townsend v.

Pierre, 221 N.J. 36, 54 (2015) (requiring experts to "'give the why and wherefore'

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that supports the opinion, 'rather than a mere conclusion'" (quoting Borough of

Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013))). Plaintiff

failed to establish the Board's determinations regarding the positive criteria were

unreasonable.

Further, we discern no reason to disturb the Board's finding that plaintiff

failed to satisfy the negative criteria. It found plaintiff's evidence did not

demonstrate that granting plaintiff a use variance would "be 'consistent with the

intent of the master plan and zoning ordinance.'" The Board was unpersuaded

that granting the variance would not result in substantial impairment, as "[t]he

proposal represent[ed] the worst of both worlds in that it introduce[d] a use not

permitted in [the NC zone], without the lot area and parking that would be

required if it were [in the] R-1 [zone]." It highlighted that the existing building

with "apartments (without parking spaces) had been approved because it was

accompanied by the commercial space," which the house of worship would

largely replace in the retail corridor. The Board further noted the parking deficit

existed even before "tenants . . . moved in." The record therefore supports the

Board's negative criteria findings.

For these reasons, the Board's denial of plaintiff's use variance was not

arbitrary, capricious, or unreasonable.

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B.

We next address plaintiff's argument that the court erred in not reversing

the Board based on plaintiff's RLUIPA claim. Plaintiff contends the Board's

refusal to provide "the house of worship with the same parking variance

previously granted to a secular use—without any changes whatsoever to the

building itself—was an undeniable violation of . . . RLUIPA." Stated another

way, plaintiff argues "RLUIPA was violated due to the Board's refusal to grant

a variance to a religious use that was granted to a secular use for the same space."

These contentions are unsupported.

"RLUIPA is 'the latest of long-running congressional efforts to accord

religious exercise heightened protection from government-imposed burden,

consistent with [United States Supreme Court] precedent.'" Lighthouse Inst. for

Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 261 (3d Cir. 2007)

(quoting Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)). "RLUIPA addresses

only land use regulations . . . and the religious rights of institutionalized

persons." Ibid. "The land[] use section of the statute is further subdivided into

two sections: Substantial Burdens, § 2000cc(a), and Discrimination and

Exclusion, § 2000cc(b)." Ibid.

RLUIPA's discrimination and exclusion provision provides:

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(b) Discrimination and exclusion.

(1) Equal terms. No government shall impose or

implement a land use regulation in a manner that

treats a religious assembly or institution on less

than equal terms with a nonreligious assembly or

institution.

(2) Nondiscrimination. No government shall

impose or implement a land use regulation that

discriminates against any assembly or institution

on the basis of religion or religious

denomination.

(3) Exclusion and limits. No government shall

impose or implement a land use regulation that –

(A) totally excludes religious assemblies

from a jurisdiction; or

(B) unreasonably limits religious

assemblies, institutions, or structures

within a jurisdiction.

[42 U.S.C. § 2000cc(b).]

"Whereas the [s]ubstantial [b]urdens [p]rovision 'is directly responsive to the

difficulty of proof' where zoning boards engage in individualized assessments,

the [e]qual [t]erms and [n]ondiscrimination [p]rovisions 'enforce the Free

Exercise Clause . . . against [land use regulations] that burden religion and are

not neutral and generally applicable.'" Islamic Soc'y of Basking Ridge v.

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Township of Bernards, 226 F. Supp. 3d 320, 341 (D.N.J. 2016) (alterations in

original) (quoting 146 Cong. Rec. S7774-01 at S7775 (July 27, 2000)). 5

"RLUIPA 'does not provide religious institutions with immunity from land

use regulation, nor does it relieve religious institutions from applying for

variances, special permits or exceptions, hardship approval, or other relief

provisions in land use regulations, where available without discrimination or

unfair delay.'" House of Fire Christian Church, 379 N.J. Super. at 544 (quoting

146 Cong. Rec. S7774-01 at S7776 (July 27, 2000)). Further, in Lighthouse, the

Third Circuit Court of Appeals provided the analytical framework to evaluate

RLUIPA's equal terms provision as follows: "a plaintiff . . . must show" that

"(1) it is a religious assembly or institution, (2) subject to a land use regulation,

which regulation (3) treats the religious assembly on less than equal terms with

(4) a nonreligious assembly or institution (5) that causes no lesser harm to the

5

RLUIPA defines "religious exercise" as "[t]he use, building, or conversion of

real property for the purpose of religious exercise." 42 U.S.C. § 2000cc-5(7)(B).

"'[L]and use regulation' means a zoning or landmarking law, or the application

of such a law, that limits or restricts a claimant's use or development of land . . . ,

if the claimant has an ownership, . . . or other property interest in the regulated

land. . . ." 42 U.S.C. § 2000cc-5(5).

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interests the regulation seeks to advance." 510 F.3d at 270.6 The Board

correctly argues in opposition that a review of the record demonstrates plaintiff

did not fairly raise a RLUIPA argument before the Board. In fact, only

Espinoza, defendant's planner, briefly raised RLUIPA during the hearing. He

mentioned that RLUIPA "protects religious institutions from unduly burdensome

or discriminatory land use regulations." The Board's resolution specifically

recites that plaintiff did not request findings regarding RLUIPA.

We briefly address plaintiff's arguments, recognizing that "appellate

courts will decline to consider questions or issues not properly presented to the

trial court when an opportunity for such a presentation is available 'unless the

questions so raised on appeal . . . concern matters of great public interest.'"

Berardo, 476 N.J. Super. at 354 (alteration in original) (quoting Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Plaintiff's failure to present evidence before the Board on the other

permitted NC zone uses prohibited a comparison of the uses and an examination

of "[t]he impact of the allowed and forbidden behaviors . . . in light of the

6

While the decisions of the United States District Courts and Circuit Courts on

questions of federal law are not "per se" binding on New Jersey courts, they

should nonetheless receive the "due respect" of appropriate observance of "the

principle of 'judicial comity.'" Dewey v. R.J. Reynolds Tobacco Co., 121 N.J.

69, 80 (1990).

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purpose of the regulation." Id. at 265. In turn, plaintiff's failure to present

RLUIPA violation evidence before the Board precludes meaningful appellate

review because the issues surrounding whether Jersey City's ordinance—a land

use regulation—"treats the . . . [house of worship] on less than equal terms with

nonreligious assemblies or institutions whose presence would cause no lesser

harm" were not developed. Lighthouse Inst., 510 F.3d at 270.7 And, while

plaintiff argues it "advised the [B]oard of a 'comparator' with respect to . . .

RLUIPA," this is belied by the record. Therefore, plaintiff cannot meet its

burden under RLUIPA. See House of Fire Christian Church, 379 N.J. Super. at

544-47 (recognizing that the creation of a record is essential to reviewing

RLUIPA's application to an ordinance and a zoning board's denial of a house of

worship variance).

7

In an earlier Lighthouse appeal, the Third Circuit affirmed the District Court's

dismissal of the plaintiff's RLUIPA claims for failing to exhaust available

remedies, concluding the plaintiff had failed to raise its RLUIPA claims before

the defendant's governing body and "produce evidence to support its contention

that the secular assemblies it identified were actually similarly situated such that

a meaningful comparison could be made under this provision." Lighthouse Inst.

for Evangelism, Inc. v. City of Long Branch (Lighthouse I), 100 F. App'x 70,

73, 77 (3d Cir. 2004); see also Lighthouse Inst. for Evangelism, Inc. v. City of

Long Branch, 406 F. Supp. 2d 507, 511 (D.N.J. 2005) (stating the same).

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We also note plaintiff contends it is "not challeng[ing] the zoning

ordinance at issue" under RLUIPA but only "the action of the Board itself." Its

casting of its argument as only a challenge of the Board's ordinance application

does not cure the deficiency, as it did not provide the Board the opportunity of

a factual record on which to make findings. 8 Therefore, we reject plaintiff's

argument that the Board's denial of plaintiff's "constitutionally and statutorily

protected house of worship" warrant reversal. We discern no reason to disturb

the Board's denial of plaintiff's use variance application under RLUIPA.

Affirmed.

8

We note pursuant to Rule 4:69-6(c), plaintiff was permitted to seek an

enlargement of time to challenge the ordinance, as "[t]he court may enlarge the

period of time provided . . . where it is manifest that the interest of justice so

requires." As our Supreme Court has long recognized, an exception to the forty-

five-day time limitation to file an action in lieu of prerogative writs exists for

"cases involving . . . important and novel constitutional questions." Brunetti v.

New Milford, 68 N.J. 576, 586 (1975).

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