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Superior Court of New Jersey, Appellate Division.

ROTHMAN REALTY CORP., Plaintiff–Appellant, v. CITY OF ENGLEWOOD, a municipal corporation of the State of New Jersey, PLANNING BOARD OF THE CITY OF ENGLEWOOD, and HOWDAVAR ASSOCIATES, LLC, Defendants–Respondents.

DOCKET NO. A–1927–12T4

    Decided: March 26, 2014

Before Judges Simonelli, Fasciale and Haas.

In this action in lieu of prerogative writs, plaintiff appeals from a Law Division order upholding defendant Planning Board of the City of Englewood's (the Board) approval of a site plan application submitted by defendant Howdavar Associates, LLC (Howdavar).   We affirm.

Plaintiff and Howdavar own adjoining real property in one of Englewood's service business district (SBD) zones.   In July 2011, Howdavar applied to the Board for site plan approval.   Howdavar planned to construct an addition to an existing building in a location where there was currently a drive-through area.   The site plan called for one two-way driveway by which drivers could access a “dead-end” parking lot.   Howdavar planned to lease the one-level building to a medical practice specializing in orthopedics.

Between May 2011 and December 2011, the Board conducted five public hearings, at which plaintiff argued that the Board did not have jurisdiction to interpret the zoning ordinance, that a section of the ordinance did not permit a medical office on the first floor, and that the site plan was unsafe because it lacked sufficient parking spaces, lacked a drop-off area, and created a dead-end parking lot.   At the beginning of the first hearing, the Board's counsel advised the Board that it had jurisdiction to interpret the ordinance, and the Board voted in favor of hearing the application.

Donald Porrino, a Zoning Officer, testified that medical offices were prohibited on the first floor of buildings in central business districts (CBDs), but that this prohibition did not extend to SBDs. Howdavar introduced testimony from James Kutscher, the practice manager for the orthopedic practice, who testified regarding the practice's operations and the number of people expected to be in the building at any one time.   Howdavar also introduced testimony from engineers David Hals, a planning expert, and Nicholas Verderese, a transportation expert, indicating that the plans included more than sufficient parking spaces based on the ordinance, the anticipated use of the property, and parking conditions at the practice's other locations.   The experts also testified that the dead-end parking lot was not problematic.   Verderese introduced into the record a letter from the Assistant Planner of Bergen County indicating that the County supported the plan to eliminate the drive-through area.   Regarding the lack of a drop-off area for patients, Kutscher testified that ambulance drop-offs were very rare, and Verderese testified that a drop-off area was unnecessary based on the size of the parking lot.

Objecting to the site plan, plaintiff introduced expert testimony that road conditions and the building's use as an orthopedic practice made a drop-off area necessary, that local traffic conditions made the dead-end parking lot problematic, and that the number of parking spaces was inadequate based on the number of rooms and seats depicted in the building plans.

The Board found that first-floor medical offices were permitted in SBDs, the number of parking spaces was sufficient, a dedicated drop-off area was not required, and the dead-end parking lot was acceptable.   The Board granted site plan approval and, on January 5, 2012, adopted a resolution memorializing its decision.

Plaintiff thereafter filed this action in lieu of prerogative writs.   Judge Joseph S. Conte conducted a hearing, entered an order upholding the Board's decision, and issued a thirteen-page written decision holding that (1) the Board had inherent jurisdiction to interpret the relevant zoning ordinance;  (2) the Board's interpretation of the ordinance was reasonable and supported by credible evidence;  and (3) the Board's decision to approve the site plan was not arbitrary, capricious, or unreasonable.

On appeal, plaintiff argues that the trial court erred by (1) holding that the Board had jurisdiction;  (2) affirming the Board's interpretation of the ordinance;  and (3) declining to find that the Board's decision was arbitrary, capricious, or unreasonable.

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).   We must accord deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable.  Id. at 560.   A board's actions must be based on substantial evidence.  Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002).

We review de novo boards' interpretations on issues of law.  Fallone, supra, 369 N.J.Super. at 561.   Regarding the interpretation of ordinances, “although we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation,” but the board's interpretation must be reasonable.  Id. at 562.  “Thus, planning boards are granted ‘wide latitude in the exercise of delegated discretion’ due to their ‘peculiar knowledge of local conditions.’ ”  Id. at 561 (quoting Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990)).

With this standard in mind and after carefully reviewing the record developed before the trial court, we affirm substantially for the reasons that Judge Conte expressed in his well-reasoned November 14, 2012 opinion.   We add the following comments.


We reject plaintiff's argument that the Board lacked authority to interpret the zoning ordinance.   Pursuant to N.J.S.A. 40:55D–70, zoning boards of adjustment have the authority to “[h]ear and decide requests for interpretation of the zoning map or ordinance.”   This authority is exclusive.  N.J.S.A. 40:55D–20.   Planning boards have an inherent authority, however, to interpret zoning ordinances when necessary to make decisions on site plan applications.   See DePetro v. Twp. of Wayne Planning Bd., 367 N.J.Super. 161, 166–67, 173 (App.Div.) (affirming a planning board's approval of a site plan where the board interpreted the word “warehouse” in the local zoning ordinance to exclude commercial storage facilities), certif. denied, 181 N.J. 544 (2004).   Moreover, interpretation of zoning ordinances is necessary for planning boards to exercise their enumerated powers contained in N.J.S.A. 40:55D–25a.   See Cox & Koenig, N.J. Zoning & Land Use Administration, 5:2–3 (2013) (stating that “planning boards have always had to interpret the meaning of the zoning ordinance in connection with an incident to applications for other relief,” including site plan approval).

Here, the Board interpreted the zoning ordinance in order to determine whether the ordinance permitted the proposed use as a medical facility.   This interpretation occurred in connection with Howdavar's site plan application, and therefore the Board was within its jurisdiction.


Plaintiff argues alternatively that if the Board had authority to interpret the Englewood zoning ordinance, it did so erroneously by allowing a medical office on the building's first floor.   We disagree.

In 1995, the Englewood City Council amended the Englewood zoning ordinance to limit professional offices in CBDs to floors other than the first floor.   According to Section 4–5.1 of the ordinance, the purpose of creating CBDs was “to provide for a wide variety of commercial activities ․ and to assure that the physical character of the central business area can accommodate the movement of pedestrian and vehicular traffic safely and conveniently.”

Section 4–7.2 of the ordinance provides that permitted uses in an SBD include “any use permitted in a[CBD] except public parking lots and public parking garages” as well as additional uses such as veterinary hospitals, appliance repair shops, dry cleaning establishments, funeral parlors, and gas stations.   According to Section 4–7.1, the purpose of SBD zones is to “provide a wide variety of retail, commercial service generally serving the surrounding neighborhood in a desirable visual environment and located particularly along major thoroughfares where a general mixture of retail, commercial and service activity now exist.”

The Board heard testimony from Porrino indicating that the prohibition on first-floor medical offices did not extend to SBDs. Howdavar's counsel contrasted Section 4–7.2 with another section of the ordinance that specifically adopted conditions on permissible uses, arguing that the SBD section did not incorporate the conditions on CBD uses.   Plaintiff, however, introduced expert testimony that the SBD section excepted two uses included in CBDs (parking lots and parking garages) and that if the governing body intended to further depart from the CBD section by allowing first-floor professional offices, it would have done so specifically.

The Board concluded that “[t]o the extent that the [SBD] zone allows retail uses, they are not primarily pedestrian-oriented uses as one would find on a ‘main street’ shopping area” and therefore concluded that first-floor medical offices were permitted in SBD zones.   Taking into account that the ordinance did not specifically incorporate the restriction on professional offices and the purposes and goals associated with creating SBDs, and “recogniz[ing] the board's knowledge of local circumstances and accord[ing] deference to its interpretation,” we conclude that the Board's determination that a medical office was allowed on the first floor was reasonable.  Fallone, supra, 369 N.J.Super. at 562.


Finally, plaintiff argues unconvincingly that the Board's approval of the site plan was arbitrary, capricious, and unreasonable.   The Board considered and properly weighed extensive expert testimony on the issues plaintiff raised at the hearings.  “A board may accept or reject the testimony of any witness and, so long as it is 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).   The Board's resolution set forth in detail the testimony of plaintiff's experts and the contradictory testimony from Howdavar's experts.   After considering this testimony, the Board explained its reasoning for accepting or rejecting the testimony and how it reached its ultimate conclusion.   Thus, the Board's decision to reject the testimony of plaintiff's experts was “reasonably made.”   We conclude, therefore, that there was substantial evidence in the record to support the Board's decision, and it was therefore not arbitrary, capricious, or unreasonable.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).



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