Opinion
DOCKET NO. A-4101-12T1
06-02-2014
LIVINGSTON SHORT HILLS COALITION, LLC., Plaintiff-Appellant, v. TOWNSHIP OF LIVINGSTON PLANNING BOARD AND TMB PARTNERS, LLC, Defendants-Respondents
Stuart J. Lieberman, argued the cause for appellant (Lieberman & Blecher, attorneys; Michael G. Sinkevich and Mr. Lieberman, on the brief). Gary T. Hall, argued the cause for respondent Livingston Township Planning Board (McCarter & English, attorneys; Mr. Hall, on the brief). Richard J. Hoff, Jr., argued the cause for respondent TMB Partners, LLC (Bisgaier Hoff, LLC, attorneys; Jeffrey K. Newman and Mr. Hoff, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5787-12.
Stuart J. Lieberman, argued the cause for appellant (Lieberman & Blecher, attorneys; Michael G. Sinkevich and Mr. Lieberman, on the brief).
Gary T. Hall, argued the cause for respondent Livingston Township Planning Board (McCarter & English, attorneys; Mr. Hall, on the brief).
Richard J. Hoff, Jr., argued the cause for respondent TMB Partners, LLC (Bisgaier Hoff, LLC, attorneys; Jeffrey K. Newman and Mr. Hoff, on the brief). PER CURIAM
Plaintiff Livingston Short Hills Coalition, LLC filed a complaint in lieu of prerogative writs challenging the decision by defendant Township of Livingston Planning Board (Board) to grant site plan approval and bulk variances to the land use application of defendant TMB Partners, LLC (TMB). The trial court dismissed the complaint with prejudice. Plaintiff appeals. We affirm.
I.
TMB owns a 4.275-acre property, located at the corner of South Orange Avenue and White Oak Ridge Road, designated on the Livingston Tax Map as Block 7001, Lot 1 ("the Property" or "the Site"). The Property is currently used as a day care center. In 2007, TMB commenced a builder's remedy action pursuant to S. Burlington Cnty. NAACP v. Twp. of Mt. Laurel, 92 N.J. 158 (1983) (Mt. Laurel II), against the Board and the Township of Livingston (Livingston), seeking to construct affordable housing on the Property. Plaintiff, an organization of citizens who live near the Property, unsuccessfully moved to intervene, but was permitted to participate in the litigation as amicus curiae, along with the Township of Millburn (Millburn).
In August 2010, the Board, Livingston, and TMB entered into a Settlement Agreement in the Mt. Laurel action, subsequently approved by the Law Division as fair to low income households. Livingston and the Board agreed to consider rezoning the property to permit TMB's sixty-two unit multi-family development, including fifty "market-rate" units for sale, and twelve affordable-housing units for rent in separate "Market-Rate" and "Affordable" buildings. In accord with the Settlement Agreement, Livingston rezoned the Property by ordinance passed in December 2010.
TMB filed an application requesting preliminary and final site plan approval for the development and any needed bulk variances. The Board held hearings, at which experts testified for TMB and Millburn. Plaintiff presented no expert testimony. The Board found that the proposed development met the zoning requirements in most respects, granted several bulk variances, and gave preliminary and final site approvals by resolution dated June 19, 2012.
Plaintiff now appeals the trial court's dismissal of its complaint in lieu of prerogative writs. We must hew to our standard of review. "In reviewing a planning board's decision, we use the same standard used by the trial court." Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 433 (App. Div. 2009). "[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). Indeed, "zoning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). "'The questions on appeal are only whether or not the action of the board was arbitrary, capricious or patently unreasonable, and whether it acted properly under the statute, that is, in accordance with the statutory standard.'" Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54-55 (1998). Thus, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).
II.
Plaintiff first argues that the Board improperly approved the application even though TMB had no feasible plan to obtain sewer access for the development. Millburn had been providing sewer service to the Property for decades through an existing sewer, which drained into the Millburn sewer system and then fed into the treatment system of the Joint Meeting of Essex and Union Counties (Joint Meeting). Millburn took the position, however, that sewer service to TMB's proposed development should be provided by Livingston, absent a showing that Livingston lacked the capacity to handle the development's projected sewer output of 14,000 gallons per day. This resulted in litigation brought by TMB against Millburn and Livingston to obtain sewer access, which is the subject of our companion opinion issued today in TMB Partners, LLC v. Twp. of Millburn, No. A-3554-12 (App. Div. May 2014) (TMB v. Millburn).
The Board addressed the sewer access issue:
Based upon the evidence and testimony presented, the Board finds that the record shows that the Township of Millburn has provided wastewater sewage service to the Site under an agreement with [Livingston]. That agreement expressly precludes services for apartment houses. The Board further finds that the Township of Millburn has not agreed to accept wastewater from the Site if developed as proposed; and that the Applicant has commenced legal proceedings seeking to compel the Township of Millburn to provide the service.
Given that the issue of which township would provide sewer access had not been resolved, the Board conditioned its site approvals on TMB obtaining sewer service for the Property:
The Site shall have a single wastewater sewage service. If such service is not provided by the Township of Livingston, Applicant shall have obtained the service from the Township of Millburn. Any such service from the Township of Millburn shall be pursuant to a Sanitary Sewer Services agreement between the two townships, and anyThe Board also provided that this condition "shall be met before issuance of any permits or commencement of any work."
necessary actions by the Joint Meeting of Essex and Union Counties or by Essex County in regard to the Essex County wastewater management plan.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, permits conditional approvals by the Board, which the MLUL refers to as a "municipal agency." N.J.S.A. 40:55D-5. N.J.S.A. 40:55D-22(b) provides that "[i]n the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency[.]"
Nonetheless, plaintiff argues that the conditional grant of approval here was improper. Plaintiff relies on Field v. Mayor & Council of Franklin, 190 N.J. Super. 326 (App. Div.), certif. denied, 95 N.J. 183 (1983). There, a planning board granted preliminary approval of a development of a 396.5-acre tract, including 1,332 townhouses and 1,332 garden apartments. Id. at 328. The township council reversed because the applicant had proposed three possible options to provide sewerage, but had provided insufficient information on the feasibility of any of those options. Id. at 333.
In upholding the council's action, we distinguished between "preliminary approval granted subject to subsequent approval by appropriate public agencies and preliminary approval granted subject to later submission of additional information fundamental to an essential element of the development plan." Id. at 332. The former is permitted by N.J.S.A. 40:55D-2(b), but the latter is inappropriate. Field, supra, 190 N.J. Super. at 331-33. We noted that "[c]ertain elements — for example, drainage, sewage disposal and water supply — may have such a pervasive impact on the public health and welfare in the community that they must be resolved at least as to feasibility of specific proposals or solutions before preliminary approval is granted." Id. at 332-33; see N.J.S.A. 40:55D-38(b)(3).
We distinguished Field in W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Twp. Planning Bd., 345 N.J. Super. 109 (App. Div. 2001). We held that, where an applicant presented sufficient information on the feasibility of its drainage plan, the planning board should have granted preliminary approval conditioned on the applicant obtaining a drainage easement. Id. at 117; see Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 234-35 (App. Div. 2009) (upholding preliminary approval conditioned on the vacating of a public right of way).
We similarly distinguished Field in Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 33-36 (App. Div.), certif. denied, 197 N.J. 15 (2008). We held that, where an applicant presented sufficient information on the feasibility of the sewage disposal system, the planning board should have granted preliminary approval conditioned upon the applicant's acquisition of the necessary permit and water quality management plan amendments from the New Jersey Department of Environmental Protection (NJDEP). We also noted that "it does not appear from the opinion that Field involved a site that the municipality designated as an inclusionary site in order to obtain substantive certification or settle litigation, as in the present case." Id. at 33.
Here, as the trial court found, "the unresolved issues were based on litigation" and "permitability," rather than "any physical or technical issues relating to feasibility." Thus, this case is more analogous to Dowel, Randolph, and W.L. Goodfellows than to Field. As the trial court stated, the development in Field was "exponentially larger" than the development here. See Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 37 n.2 (2013) (distinguishing Field because of the massive size of that development, which "justified the board's close examination of sewage and drainage").
Moreover, in the Settlement Agreement, Livingston agreed "to cooperate with TMB in its efforts to obtain utility service for the TMB Property, including sewer service from" Millburn, and to obtain any necessary approvals from NJDEP, Essex County, and other government agencies. There was already an agreement with Millburn, and negotiations had commenced with Millburn, Livingston, and Essex County. Thus, this case is further distinguishable from Field, because the applicant there presented as one option a sewer connection through South Brunswick Township even though there was no agreement with that township and negotiations had not even been commenced. Field, supra, 190 N.J. Super. at 333.
Further, the evidence before the Board indicated that sewer access was feasible. TMB's expert in planning and engineering, Gary Szelc, testified that he had "talked to the Joint Meeting as far as any capacity issues, and they said that because it was a small change in sanitary flow, they wouldn't expect any problems and would be able to accept the flow." Szelc also related that Essex County and NJDEP "felt that there should be no problem getting the amendment to the sewer service area." Even though plaintiff, Livingston, and Millburn participated in the proceedings before the Board, no evidence was introduced contradicting these assurances or indicating that it was not feasible for either Millburn or Livingston to handle the sewage flow from the development.
Plaintiff on appeal cites a certification by Livingston's engineer Richard Calbi, but that certification is dated June 20, 2012, after the Board's June 19, 2012 resolution. Because it was not part of the evidence before the Board, we do not consider it.
It is undisputed that, as a result of TMB's separate litigation against Livingston and Millburn, one of those municipalities ultimately will be obligated to provide sewer access to the development. Livingston's potential obligation arises because it is the location of the inclusionary development. Millburn's potential obligation could arise because of its current agreement to provide sewer service to the Property, or because it might be ordered "'to make existing sewer capacity available to Mt. Laurel inclusionary development sites'" in a neighboring town. See Bi-County Dev. of Clinton v. Borough of High Bridge, 174 N.J. 301, 317, 326 (2002); Dynasty Bldg. Corp. v. Borough of Upper Saddle River, 267 N.J. Super. 611, 616 (App. Div. 1993), certif. denied, 135 N.J. 467, 468 (1994).
In our companion opinion, we reverse the summary judgment entered against Millburn in that separate litigation, and remand to the Law Division to resolve whether the sewer agreement compels Millburn to accept the development's sewage, whether Millburn and Livingston have adequate sewer service, and whether the costs to connect to Livingston are more substantial. TMB v. Millburn, supra, slip op. at 16. The issue of which of the two municipalities must provide sewer access to the development will be resolved in that litigation, and cannot be resolved by the Board in this case. See Dowel, supra, 403 N.J. Super. at 29 (noting that the issue of sewage disposal was appropriately left for decision by the NJDEP). Thus, the action of the Board in granting approval conditioned on sewerage supplied by Millburn or Livingston was not arbitrary, capricious or patently unreasonable, or contrary to the MLUL.
Finally, we note that while preliminary site plan approval may be conditionally granted under N.J.S.A. 40:55D-22(b), it is less clear that final approval may be so conditioned. Under the MLUL, "'[f]inal approval' means the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled[.]'" N.J.S.A. 40:55D-4; see N.J.S.A. 40:55D-50(a). Thus, "the provision for final approval contemplates completion or fulfillment of conditions of preliminary approval." Field, supra, 190 N.J. Super. at 332; see Knowlton Riverside Estates, Inc. v. Planning Bd. of Knowlton, 347 N.J. Super. 362, 370 (App. Div.), certif. denied, 172 N.J. 357 (2002). However, plaintiff has not asked us to draw a distinction between the preliminary and final site plan approval, and we decline to do so sua sponte.
III.
Plaintiff similarly argues that the Board improperly approved the site plan application without a feasible plan for stormwater management. We conclude the Board's action was not arbitrary, capricious, patently unreasonable, or contrary to the MLUL.
TMB's expert Szelc testified as follows. The existing impervious coverage on the Property totaled 77,940 square feet, but the development would reduce that total to 66,644 square feet, which would decrease the total volume of stormwater runoff from the Property. The existing 55,997 square-foot parking lot largely drained directly into the adjacent Canoe Brook Tributary No. 1, with pavement up to the bank of the stream. However, the development would remove 45,947 square feet of pavement, including the pavement near the stream bank. It would insert a vegetative zone between the building and the stream, which would serve as a non-structural means of handling stormwater runoff and provide some groundwater recharge. The Property would be heavily landscaped, and the vegetation would provide stormwater management, with most of the stormwater absorbed into the ground before reaching the stream. The front of the Property, including the roof drains, would drain into and be contained by a series of rain gardens.
Szelc also testified that the development followed best management practices regarding stormwater management. The development's buffer zones of forty feet or more exceed NJDEP's twenty-five-foot minimum buffer zone, the distance of 140-feet or more from the parking lot to the stream exceed NJDEP's overland flow requirements, the development's intrusion into riparian zones was less than allowed by NJDEP regulations, and NJDEP issued a flood hazard permit for the property.
Plaintiff offered no contrary testimony. Millburn's environmental engineering expert, James Cosgrove, saluted the use of underground parking for the Market-Rate building, and acknowledged the stone trench bordering the Affordable Building's front parking lot, and its wide drainage area. He expressed concern that runoff in large storms might overflow the drainage area, concentrate and erode the vegetation, and form an erosion ditch down in the area closer to the stream. In response, Szelc testified that even in a 100-year storm, the water velocity would be insufficient to erode the soil let alone the vegetation, that it would not create an erosion ditch, and that the maintenance manual would require correction if it did. On cross, Szelc conceded that if the water were to concentrate and exceed the allowable velocity, erosion was possible.
The Board "was entitled to accept the expert" testimony offered by TMB's expert. TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215 N.J. 26, 46 (2013). "If the testimony of different experts conflicts, it is within the Board's discretion to decide which expert's testimony it will accept." Klug v. Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 13 (App. Div. 2009). Through Szelc's testimony, "sufficient information was presented by [TMB] concerning the specificity of its drainage plan, including its feasibility and adequacy." See W.L. Goodfellows, supra, 345 N.J. Super. at 117. Accordingly, the Board concluded: "Based upon the evidence and testimony presented, the Board finds that the stormwater management plan proposed meets the requirements of the Residential Site Improvements Standards, the Township Code provisions and the requirements of the NJDEP." Plaintiff does not show any error in the Board's finding, which was supported by substantial evidence.
The Board specifically found that NJDEP had issued TMB a permit to construct the development and had required a conservation easement, a riparian buffer zone, and landscaping to "protect the water quality of runoff that enters the Canoe Brook Tributary No. 1." Szelc testified that NJDEP "do[es] get involved with stormwater review" for a project of this size, and Livingston's engineer stated that NJDEP "reviewed all aspects of the drainage." Plaintiff counters that the issuance of an NJDEP permit does not necessarily mean that NJDEP has found a development's stormwater management plan complies with its regulations. See Save Hamilton Open Space v. Hamilton Twp. Planning Bd., 404 N.J. Super. 278, 283-86 (App. Div. 2008). However, the Board itself found compliance with NJDEP requirements, and with the Township Code, which sets specific requirements to limit the adverse effects of stormwater runoff. Twp. of Livingston Ordinance §§ 170-119 to -124.
Further, the Board imposed several conditions on its approvals. The final stormwater management plan had to be reviewed and accepted by Livingston's engineer before issuance of any permits or commencement of work. The Board required post-construction certification that all NJDEP permit conditions have been met before a certificate of occupancy would issue. Livingston retained the right of access to ensure that water-handling features "are properly maintained and functioning properly as part of the storm water management plan for the Site," and reserved the right to repair any uncorrected conditions at the expenses of TMB or the condominium association, with the requisite consent of NJDEP, to be obtained by TMB, the association, or Livingston.
Finally, the Board provided as a continuing condition:
If stormwater flow from [the] Affordable Building Site causes erosion, the Applicant or the condominium association shall make improvements as set forth in the Stormwater [M]aintenance Manual, provided such improvements are approved by [the] Township Engineer. If any proposed improvements require the approval of NJDEP, the Applicant or the condominium association shall obtain the NJDEP['s] approval.The Board thus took Cosgrove's testimony and concerns into account. This precautionary condition did not reflect a rejection of Szelc's testimony or the absence of "information fundamental to an essential element of the development plan." Field, supra, 190 N.J. Super. at 332. Indeed, the Board rejected Millburn's demand for further modeling of flows after TMB's counsel noted that TMB had "provided all of the modeling that's required" and produced expert testimony "that the erosion plan will work."
Plaintiff contends that the Board's findings lack sufficient detail. "'Local boards and their counsel should take pains to memorialize their decisions in resolutions that explain fully the basis on which the Board had acted, with ample reference to the record and the pertinent statutory standards.'" See CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 580 (App. Div. 2010) (quoting Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546, 566-67 (1991)). Here, given the Board's finding of compliance with the specific regulations and ordinances, and the careful stormwater conditions it imposed, the Board's resolution was "fully reflective of the statutory standards" and "based on the record before the Board," including Szelc's detailed testimony. Commercial Realty, supra, 122 N.J. at 566.
IV.
Plaintiff next argues that the Board was arbitrary and capricious in allowing a trash enclosure to be placed in front of the Affordable Building. The Board found:
The Zone Ordinance Section 170-87(E)(1)(e) requires that all accessory structures be in the rear yard. The Affordable Building will have a trash enclosure in the front yard adjacent to the parking lot. Due to the topography of the lot, NJDEP constraints and the riparian buffer, there is no other location for this accessory structure. Based upon the evidence and testimony presented, the Board finds that the record justifies grant of a variance.The Board thus granted a bulk variance "so that the trash enclosure next to the Affordable Building may be in the front yard." The Board also granted a bulk variance permitting the trash enclosure to be thirty-five feet from the property line, rather than fifty feet as required by the Zone Ordinance Section 170-194.1(J)(9)(b).
Plaintiff notes that the Township of Livingston Code § 265-5(E) states that "[a]ll collections [of solid waste] shall be made at ground level from the rear of the building," and that Table XI of the Essex County District Solid Waste Management Plan indicates that the point of pickup in Livingston is "Backyard," rather than "Curbside" as in some other towns. Plaintiff complains that the Board failed to recognize it was contravening those provisions.
Plaintiff, however, failed to raise any such claim before the Board. Nor was the Board required to raise such issues sua sponte. "It is not the function of the board of adjustment to determine whether or not an applicant does or will in fact be able to comply with such [non-zoning] ordinances, since the jurisdiction of the board is related solely to the provisions of the zoning ordinance." William M. Cox & Stuart R. Koenig, N.J. Zoning & Land Use Admin. § 28-3.4(c) at 668 (2014); see N.J.S.A. 40:55D-62, -70(c) & (d); see generally Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 226-30 (1994). Similarly, "[t]he board may not act on matters which are under the exclusive jurisdiction of another agency, whether municipal, county, or state." Cox & Koenig, supra, § 28-3.4(d) at 668.
In any event, the trial court found that Livingston had approved any variance from Livingston's Code § 265-5(E) because its municipal council and mayor had to approve the Board's variance for the trash enclosure. The court also noted that plaintiff had offered no evidence or case law showing that TMB or the Board "would need to receive permission from Essex County in order to grant a variance regarding the location on a property of a trash [e]nclosure." We have no reason to doubt those observations.
Plaintiff also contends that picking up trash from the enclosure will cause traffic problems on South Orange Avenue. Szelc testified, however, that the waste management company stated that such pickups were not unusual on the avenue, would not be a problem as the pickup is typically after rush hour, and would produce only brief delays. TMB's traffic engineering expert testified that the development would produce less traffic at peak hours than the daycare center it would replace. Based on the evidence, the Board found that the development was unlikely "to involve exceptional risk of traffic congestion, public safety or hazard." We cannot say the variance was arbitrary, capricious, patently unreasonable, or contrary to the MLUL.
V.
Lastly, plaintiff argues the Board's resolution violates the regulations of the Council On Affordable Housing (COAH). Plaintiff quotes COAH regulations stating that inclusionary zoning ordinances "shall require, to the extent feasible, that developers fully integrate the low- and moderate-income units with the market units," and "shall require that affordable units . . . have access to all community amenities available to market-rate units and subsidized in whole by association fees." N.J.A.C. 5:97-6.4(f), (g). Plaintiff cites no case holding that these COAH regulations, designed to guide municipalities in enacting "[i]nclusionary zoning ordinances," ibid., create "a list of provisions that zoning boards must comply with every time they review a site plan application that includes inclusionary development."
Plaintiff also ignores that the Settlement Agreement in the Mt. Laurel litigation specified that "COAH's preference for physical integration of the affordable and market rate units shall not be applicable since the affordable units will be rental units while the market rate units will be sale units that will be in separate components of the development," namely the Market-Rate Building and the Affordable Building. The Settlement Agreement further provided that Livingston and the Board would rezone the Property "consistent with the proposed Ordinance attached hereto." The proposed Ordinance provided that the Market-Rate Building would have "private recreation and function facilities, and similar services for residents of the building."
In the subsequent fairness hearing, the Law Division approved the Settlement Agreement, finding it "to be fair to the interests of lower income persons who are the beneficiaries of Mount Laurel litigation consistent with the standards articulated" in East/West Venture v. Borough of Fort Lee, 286 N.J. Super. 311 (App. Div. 1996), and other cases. One of the purposes of a fairness hearing is to determine "that a proposed settlement satisfies those criteria" in COAH's regulations. Livingston Builders, Inc. v. Twp. of Livingston, 309 N.J. Super. 370, 380 (App. Div. 1998); e.g., East/West Venture, supra, 286 N.J. Super. at 323. No one appealed the Law Division's decision.
Given the Settlement Agreement in the Mt. Laurel litigation, and its unchallenged approval in the Law Division's fairness hearing, we agree with the trial court that the Board acted within its discretion by relying on the Settlement Agreement and the proposed Ordinance as being adequate under COAH's regulations. TMB's application to build an Affordable Building and a Market-Rate Building with "an entry area, card rooms, other amenities, and an outdoor swimming pool" which "would be for the use of the residents of this building only and their guests," was largely consistent with the Settlement Agreement and the proposed and subsequently-enacted Ordinance. The Board's resolution approving TMB's application did nothing more than require condominium ownership for the Market-Rate Building and rental tenancy for the Affordable Building, and provide that "[t]he Market Rate Building central core amenities and pool shall not be rented to parties who are not residents of the Market Rate Building."
The proposed Ordinance had stated that a pool could be provided "for residents of the development and their guests," but not for the "general public."
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The Board's resolution expressly incorporated the Settlement Agreement, as approved by the Law Division, and required TMB to "comply with all of its obligations under said Settlement Agreement." Plaintiff has failed to show that the Board had any further obligation under the COAH regulations, or that the propriety of the unappealed Settlement Agreement is properly before us in this zoning appeal. Accordingly, we do not address the compliance of the development with COAH regulations. Instead, we hold only that plaintiff has failed to show the Board's resolution was arbitrary, capricious, patently unreasonable, or contrary to the MLUL.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION