Opinion
DOCKET NO. A-2629-12T2
05-05-2014
MOUNT HOLINESS TEMPLE OF PENTECOSTAL FAITH, INC., Plaintiff-Appellant, v. HACKENSACK BOARD OF ADJUSTMENT, Defendant-Respondent.
Jan Meyer argued the cause for appellant (Law Offices of Jan Meyer & Associates, P.C., attorneys; Mr. Meyer and Benjamin O. Stewart, on the briefs). Laura S. Kirsch argued the cause for respondent (Kirsch & Kirsch, LLP, attorneys; Ms. Kirsch and Daniel E. Kirsch, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi and Leone.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9674-11.
Jan Meyer argued the cause for appellant (Law Offices of Jan Meyer & Associates, P.C., attorneys; Mr. Meyer and Benjamin O. Stewart, on the briefs).
Laura S. Kirsch argued the cause for respondent (Kirsch & Kirsch, LLP, attorneys; Ms. Kirsch and Daniel E. Kirsch, on the brief). PER CURIAM
Mount Holiness Temple of Pentecostal Faith, Inc. (MHT) appeals from an order entered by the Law Division on January 8, 2013, which affirmed the denial of its variance application by the Zoning Board of Adjustment of the City of Hackensack (Board) and dismissed the complaint. We reverse and remand the matter to the Board for further proceedings.
I.
MHT owns a building on a 0.35 acre parcel of land, located at the northeast corner of the intersection of Hamilton Place, Franklin Place and Prospect Avenue in Hackensack. MHT uses the building as a place of worship. The building was constructed in or before 1917, and MHT acquired the building and property in 1978. The property is located in the City's R2-B zone. It is undisputed that, under the City's zoning ordinance, churches, temples and other houses of worship are conditional uses in the zone. One of those conditions is on-site parking.
MHT does not have a parking lot on the property. MHT proposed to construct a lot thirteen thereon, which will provide nineteen parking spaces, including a space for handicapped-accessible parking. The proposed lot would be situated on the southern and eastern portions of MHT's property. Vehicular access will be provided by one driveway along westbound Hamilton Place.
In early 2010, MHT filed an application with the Board seeking variances from conditional standards for churches, temples and other places of worship, including those for minimum lot area and width; minimum front and side yard setbacks; maximum building height; the required number of parking spaces; buffer zones; the prohibition on parking in front; and the prohibition on having vehicular access closer than seventy-five feet to a street intersection.
The Board held several public hearings on MHT's application. Reverend William J. Moss, the assistant pastor of MHT, testified that MHT's congregation presently consists of elderly persons and small families. Reverend Moss said there is limited street parking in the area available to the congregants, and this has presented difficulties because some members "cannot and will not" come to the church because there is no parking. Reverend Moss noted that MHT presently has about thirty-five congregants.
Kenneth J. Job testified for MHT as an expert in the field of engineering. He reviewed the planned development in light of the conditional standards in the City's zoning ordinance for the placement of churches, temples and other places of worship in a residential zone. Job stated that the parking lot would be situated in the only place on the property where parking could be provided.
Steve Lydon testified for MHT as an expert in planning. He discussed the variances that would be required to construct the parking lot. According to Lydon, a variance was required for the ten-foot side-yard requirements, since the plan only allowed for a five-foot buffer at the south property line, and a six-foot buffer at the north.
Lydon also said that a variance was required with regard to the twenty-five-foot front-yard setback requirement, since the plan only called for a three-foot setback. In addition, the City's ordinance did not allow front-yard parking, and based on the size of the church, required forty-five parking spaces.
The ordinance required one parking space for each 3.5 seats, with every 20 inches of a pew or bench equal to one seat. Hackensack, N.J., Zoning Ordinance art. X, § 175-10.1. Lydon determined that forty-five parking spaces are required because the church had about 156 seats.
Lydon noted that MHT's property consisted of 15,271 square feet, while the zoning ordinance required a minimum lot of 20,000 square feet. The front setback of the church building was 20.16 feet, whereas the zoning ordinance required twenty-five feet. Lydon said the parking lot would make it safer for congregants, because they would not have to cross streets or be dropped off at the curb.
MHT presented testimony from Elizabeth Dolan, an engineer with expertise in traffic studies. Dolan stated that she had visited the site and assessed the traffic volume on the nearby streets. She said that the traffic on all three adjacent roads was "light in terms of roadway capacity."
Dolan noted that her traffic counts had been made on a Sunday during the summer, but said that the church is busier on Sundays and "even if we did accounting for seasonal variation, I wouldn't expect it to be too much changed." She opined that there was no "negative site or safety issue" associated with the proposed driveway. She said the driveway would "operate safely and efficiently."
Gregory Polyniak is the Board's engineer and planner. He analyzed the plan in light of amendments to the zoning ordinance that the City had adopted in April 2010. Polyniak stated that, under the amended ordinance, MHT would be required to provide 156 on-site parking spaces. MHT disputed that number because it reflected the number of seats in the church, not the number of parking spaces that 156 seats would require.
Polyniak further testified that use as a church is a conditional and inherently beneficial use of the property, but concluded that the proposed parking lot had numerous detriments. Polyniak noted that the parking lot would eliminate a large, open space and it would not be compliant with the buffering or setback requirements of the ordinance.
Polyniak also noted that the driveway providing vehicular access would be thirty feet from the intersection, not the required seventy-five feet, and this would pose a potential danger to motorists. He pointed out that MHT's witnesses had admitted that the church had been functioning with the street parking presently available to congregants.
On cross-examination, Polyniak stated he had visited the property, but admitted that he had not been there while services were in progress. He said, however, that he was able to form an opinion as to the adequacy of street parking because there had been no complaints from nearby property owners during the hearing and MHT's witnesses essentially confirmed that the present street-parking system was adequate.
Polyniak also admitted that he had not performed a traffic study, but said that if "something" is located in an unsafe place, "it would only take one car for it to be an issue." He later admitted he was not an expert in traffic studies, but noted that he had testified on traffic issues before other boards.
Lydon responded to Polyniak's testimony. He noted, among other things, that MHT had offered reasonable conditions to address the impact the lot would have on the surrounding area, including restricting the lot's size and location, installing a landscaping buffer, and offering to chain off the lot when it was not required for church functions. Lydon said MHT would be receptive to other suggestions from the Board.
On September 22, 2011, the Board voted to deny the application. Thereafter, the Board adopted a resolution, which memorialized its decision. The Board found that the proposed parking lot would intrude on the front-yard setbacks and be "highly visible" from the nearby residential, multi-family dwellings.
The Board stated that the proposed parking lot was not an inherently beneficial use because it "will not increase the use" of the property as a church or permit the church to operate, because the church "functions adequately" on the site as it is "presently configured." The Board found that there is adequate street parking during the hours when church services are conducted.
In addition, the Board found that MHT failed to satisfy the negative criteria required for a conditional use variance. The Board determined that the proposed parking lot would be inconsistent with the intent and purpose of the City's master plan and zoning ordinance. The Board said:
The paving of a significant portion of the Church's front and side yard would be ugly and inconsistent with the residential neighborhood. The front and side yard setbacks are less than half of those required by the Ordinance. Instead of an attractive lawn, the front and side yards would be paved for use only one day a week.
The Board also found that the location of the driveway within thirty feet of the "unusual" four-road intersection would create a safety hazard. The Board found that Dolan's testimony was not credible, since she conducted her traffic counts on a Sunday in July "when traffic is substantially less than usual." The Board accepted Polyniak's testimony on this issue, finding that it was "valid and convincing."
The Board further found that MHT had not shown that the deviation from the conditions of the ordinance were insubstantial. It stated that the parking lot's "significant and substantial intrusion into the front and side yard[s] make it unsuitable for this property and substantially detrimental." The Board also found that MHT had not established that the proposed use promotes the general welfare of the community or that the parking lot would be suitable for the site, notwithstanding the failure to meet the ordinance's requirements.
The Board said that it had "weighed the detriments created by the proposal and finds that the substantial installation of asphalt without a buffer outweigh[s] the minimal benefit to the church of having a few additional parking spaces." The Board determined that the variances could not be granted without causing a substantial detriment to the public good, and the variances would substantially impair the intent and purposes of the City's master plan and zoning ordinances.
On November 18, 2011, MHT filed an action in lieu of prerogative writs in the Law Division challenging the Board's decision. MHT alleged that the denial of the application was arbitrary, capricious and unreasonable. MHT also alleged that the denial of the variances violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLIUPA), 42 U.S.C.A. §§ 2000cc to 2000cc-5.
The trial court conducted a bench trial on October 19, 2012, and issued a written decision dated November 14, 2012, finding that the Board did not act arbitrarily, capriciously or unreasonably in denying the application. The court ruled that the Board's findings were supported by sufficient evidence. The court also found that the Board's action did not violate RLIUPA. The court entered an order dated January 8, 2013, affirming the Board's decision. This appeal followed.
II.
MHT contends that the Board applied the wrong standards in considering the application. MHT argues that the Board should have treated the proposed parking lot as an inherently beneficial use, and applied the standards for variances enunciated in Sica v. Board of Adjustment, 127 N.J. 152 (1992).
N.J.S.A. 40:55D-70(d) provides that, in "particular cases" and for "special reasons," a zoning board of adjustment may grant variances allowing a departure from zoning regulations to permit, among other things, "(1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, [or] (3) deviation from a specification or standard pursuant to [N.J.S.A. 40:55D-67] pertaining solely to a conditional use." N.J.S.A. 40:55D-70 also provides that
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Thus, an applicant seeking a use variance under N.J.S.A. 40:55D-70(d)(1) is required to prove both the positive criteria, which is the "special reason" for the variance, and the negative criteria, which pertains to the detriment to the public good and the impairment to the zoning plan and ordinance. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). Furthermore, an applicant who seeks a use variance for a commercial purpose must establish the negative criteria by enhanced proof. Medici v. BPR Co., 107 N.J. 1, 21 (1987).
However, if the proposed use is inherently beneficial, the applicant's burden is lessened because "[a]n inherently beneficial use presumptively satisfies the positive criteria." Smart SMR, supra, 152 N.J. at 323 (citing Burbridge v. Governing Body, 117 N.J. 376, 394 (1990)). In addition, grant of the variance for an inherently beneficial use depends upon a balancing of the positive and negative criteria, rather than an enhanced quality of proof. Sica, supra, 127 N.J. at 161-62.
In striking the balance, the zoning board must (1) identify the public interest involved, with the understanding that "[s]ome uses are more compelling than others"; (2) identify the detrimental effect of granting the variance; (3) determine whether the detrimental impact can be lessened by imposing reasonable conditions on the use; and (4) weigh the positive and negative criteria and determine "whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id. at 165-66.
Different standards apply where the applicant seeks a conditional-use variance pursuant to N.J.S.A. 40:55D-70(d)(3). In Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 297-98 (1994), the Court explained that the "high standard of proof" required for a use variance is inapplicable to a conditional-use variance because in the former case, the use is prohibited in the zoning district, while in the latter case, the use is allowed, but permitted subject to conditions.
Therefore, to establish "special reasons" for a (d)(3) variance, the applicant must show "the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance." Id. at 298. The focus is on the "specific deviation" from the conditions that are imposed by the zoning regulations. Ibid.
The board must be convinced that the deviations do not "affect the suitability of the site for the conditional use." Id. at 298-99. The applicant "must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Id. at 299.
With regard to the negative criteria, the applicant first must show that the variance can be granted "'without substantial detriment to the public good.'" Ibid. (quoting N.J.S.A. 40:55D- 70). The focus of this inquiry "is on the effect on surrounding properties of the grant of the variance for the specific deviations from the conditions imposed by ordinance." Ibid.
The board must consider the impact of the proposed conditional use upon the adjacent properties, and determine whether any damage to the character of the neighborhood constitutes "substantial detriment to the public good." Ibid. (citing Medici, supra, 107 N.J. at 22 n.12) (internal quotation marks omitted).
The applicant also must show that the variance will not "'substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Ibid. (quoting N.J.S.A. 40:55D-70(d)). The applicant has the burden of convincing the board "that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Ibid.
We note that the structure occupied by MHT was built in or about 1917, well before the enactment of the present zoning scheme. While houses of worship are presently a permitted use in the R2-B zone, it is undisputed that the building and site do not conform to a number of the conditions imposed on such a use. Because MHT proposes to alter the present nonconforming use of the property, it requires variances.
However, the variances required are not use variances under N.J.S.A. 40:55D-70(d)(1) because churches, temples and places of worship are permitted conditional uses in the R2-B zone. Since MHT seeks relief from conditions that otherwise apply to the permitted use, the variances required are conditional-use variances pursuant to N.J.S.A. 40:55D-70(d)(3). Therefore, the standards enunciated in Coventry Square apply to MHT's application, not the Sica analysis, which pertains to use variances.
MHT argues that the parking lot is an inherently beneficial use and, therefore, it presumptively satisfies the positive criteria required for the variance.
In House of Fire Christian Church v. Zoning Board of Adjustment, 379 N.J. Super. 526, 535 (App. Div. 2005), we stated that if a use is inherently beneficial, the applicant's burden in seeking a conditional-use variance is "'significantly lessened'" from the burden that applies to a use variance. Ibid. (quoting Smart SMR, supra, 152 N.J. at 323). We also stated that an inherently beneficial use presumptively satisfies the positive criteria, and the applicant does not have to satisfy an enhanced quality of proof regarding the negative criteria. Ibid. (citing Smart SMR, supra, 152 N.J. at 323). However, Smart SMR involved an application for a (d)(1) use variance, not a (d)(3) conditional use variance. Smart SMR, supra, 152 N.J. at 314-23.
In TSI East Brunswick, LLC v. Zoning Board of East Brunswick, LLC v. Zoning Board of Adjustment, 213 N.J. 26, 39-47 (2013), the Court reaffirmed the application of the Coventry Square standards to (d)(3) conditional-use variances. The Court did not specifically endorse the statement in House of Fire, that an inherently beneficial use presumptively satisfies the positive criteria for a conditional use. See Id. at 45. The Court merely stated that the comment in House of Fire, that an inherently beneficial use need not establish the negative criteria with enhanced proofs, was "not inconsistent with the Coventry Square analysis." Ibid.
In any event, the Court's decision in TSI East Brunswick makes clear that the Coventry Square standards apply to (d)(3) conditional-use variances. As noted, Coventry Square requires the applicant to establish the positive and negative criteria. We therefore conclude that the Coventry Square standards apply to MHT's application, not the (d)(1) use-variance standards.
III.
MHT argues that, even if the Coventry Square standards apply, the Board should have approved its application. MHT contends that the Board erred by: (1) evaluating the application in light of the conditions imposed in the amended zoning ordinance, (2) relying upon Gregory Polyniak's testimony, (3) rejecting Elizabeth Dolan's testimony, (4) deeming the current parking to be adequate and (5) evaluating the parking lot against the neighborhood as a whole rather than the adjacent properties.
Before addressing these points, we note that a court may not set aside a municipal action in a zoning or planning matter unless the action is shown to be arbitrary, capricious or unreasonable. Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). "A reviewing court must determine whether the board followed the statutory guidelines and properly exercised its discretion." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citing Burbridge, supra, 117 N.J. at 385).
A. The Ordinances.
The City's zoning ordinance, which was enacted in January 2003, and was in effect in early 2010 when MHT filed its development application, provided that churches, temples and other places of worship are conditional uses, governed by the following standards:
(1) Minimum lot area: 20,000 square feet;
(2) Minimum lot width: 100 feet;
(3) Minimum lot depth: 100 feet;
(4) Minimum front yard:
(a) Principal building: 25 feet;(5) Minimum side yard:
(b) Accessory building: 25 feet;
(a) Principal building: 10 feet;(6) Minimum rear yard:
(b) Accessory building: 10 feet;
(a) Principal building: 25 feet;(7) Maximum lot coverage: 30 percent.
(b) Accessory building: 10 feet;
[Hackensack, N.J., Zoning Ordinance art. VIII, § 175-8.5(A).]
In addition, the ordinance provided that churches, temples and other places of worship must comply with off-street parking standards in the ordinance, as well as the landscaping requirements. § 175-8.5(C). The ordinance also stated that the churches, temples and other places of worship "shall not provide any vehicular access or exit to public streets which is closer than 75 feet of a street intersection." § 175-8.5(D).
On April 19, 2010, the City Council adopted Ordinance No. 12-2010, which amended the City's zoning ordinance and made various changes to the regulations applicable to churches, temples and other houses of worship. The amended ordinance established the following area, bulk and yard requirements for these uses:
1. Minimum Lot Area: 60,000 square feet
2. Minimum Lot Width: 200 feet
3. Minimum Lot Frontage: 200 feet
4. Minimum Lot Depth: 200 feet
5. Minimum Front Yard
A. Principal Building: 50 feet6. Minimum Side Yard
B. Accessory Building: 50 feet
A. Principal Building: 25 feet7. Minimum Rear Yard
B. Accessory Building: 25 feet
A. Principal Building: 25 feet8. Maximum Lot Coverage: 30 percent
B. Accessory Building: 25 feet
9. Maximum Improved Site Coverage: 60 Percent
10. Maximum Building Height 2 1/2 Stories / 35 feet
[Hackensack, N.J., Amended Zoning Ordinance art. VIII, § 175-8.5(C).]
The amended ordinance revised the parking standards. Article VIII, § 175-8.5(I) of the amended ordinance provides that churches, temples and other places of worship must provide the following parking spaces:
1. One (1) space per three (3) seats
2. One (1) space per twenty (20) inches of bench/pew
3. One (1) space per sixty (60) square feet of gross floor area
4. Six tenth (0.6) spaces per attendee for maximum building occupancy per applicable building code The most restrictive shall govern.
Like the prior ordinance, the amended ordinance required that vehicular access not be within seventy-five of an intersection. § 175-8.5(J). The amended ordinance stated that that the exterior design of any structure shall "conform to the general character of the area." § 175-8.5(M). It also required twenty-five feet of a four-season landscape buffer. § 175-8.5(N).
Here, the Board did not state whether it was applying the requirements of the ordinance in effect when MHT filed its application or the requirements of the amended ordinance. However, it is reasonable to assume that it applied the latter. Gregory Polyniak, the Board's engineer and planner, testified based on the requirements of the amended ordinance, and the Board based its decision on his testimony.
Moreover, the Board found that "[t]he front and side yard setbacks are less than half of those required by the Ordinance." As noted, the amended ordinance required setbacks of twenty-five feet, and MHT's application provided for setbacks of 12.22 feet. The prior ordinance required setbacks of only ten feet.
The Board thus assumed that the amended ordinance applied to the application, but that ordinance was not in effect when the Board rendered its decision. N.J.S.A. 40:55D-16 provides that a zoning ordinance or amendment thereto shall not take effect until it is filed with the county planning board. The City Council adopted the amended ordinance on April 19, 2010, but the resolution evidencing its adoption was not filed with the county planning board until September 27, 2013.
Because several of the conditions that were critical to the Board's decision were significantly different from those in the prior ordinance, application of the new requirements cannot be viewed as harmless error. As indicated, minimum lot area has been increased from 20,000 square feet to 60,000 square feet, and minimum lot coverage was increased from 30 to 60 percent. The side yard setbacks were increased from ten feet to twenty-five feet. The required number of parking spaces was also changed.
B. Polyniak's Traffic Testimony
The Board found that the location of the driveway within thirty feet of the "unusual four road intersection" would create a safety hazard. The Board rejected Dolan's testimony on this issue, noting that she had conducted her traffic counts on a Sunday in July, "when traffic is substantially less than usual," and accepted Polyniak's testimony as "valid and convincing."
MHT argues that Polyniak's testimony should not have been considered because it violates the net opinion rule. That rule provides that "an expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (citations omitted). Moreover, "if an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' [the testimony] fails because it is a mere net opinion." Id. at 373.
Polyniak did not testify as a traffic expert, but offered opinions on traffic safety issues posed by the proximity of the driveway to the intersection. Polyniak acknowledged that he never performed a traffic study and never visited the site while services were in progress.
Polyniak also indicated that he did not know how many cars used the adjacent streets during services. His assertion that only one car exiting from the proposed lot would be sufficient to create a safety problem had no objective support and was essentially a personal standard.
The Board argues that it was entitled to rely on the personal knowledge of its members concerning traffic conditions. However, the Board never said it was relying on the knowledge of its members in deciding this critical safety issue. It said it was relying upon Polyniak's testimony, which was a net opinion. We conclude that the Board erred by doing so.
C. Rejection of Dolan's Testimony
MHT contends that the Board arbitrarily discounted Dolan's testimony on the traffic-safety issues.
As we explained previously, Dolan performed traffic counts while the church services were in progress. She testified that, considering the traffic volumes, roadway design, and the sight distance for drivers, the proposed driveway could operate "safely and efficiently." She based that opinion on the low volume of traffic using the adjacent roadways and a driveway to an adjacent building.
The Board discounted Dolan's testimony because she performed her traffic study on a Sunday in July, "when traffic is substantially less than normal." Dolan testified, however, that the church is busiest on a Sunday and any seasonal variations were insignificant. There was no credible evidence in the record to counter Dolan's testimony.
Polyniak said he had visited the property but, as noted, he did not visit the site while services were in progress. Moreover, the Board did not indicate it was assessing Dolan's testimony in light of the knowledge of its members concerning traffic in the area of the church.
We therefore conclude that, based on this record, the Board erred by rejecting Dolan's testimony.
D. Adequacy of Street Parking
MHT contends that the Board's finding that the church members presently have adequate parking on the street during church hours lacks support in the record. The Board's finding apparently was based on Polyniak's testimony, in which he said that the street parking was adequate. Polyniak said there had been no complaints from property owners in the area during the hearing.
However, as we have pointed out, Polyniak did not visit the site while church services were in progress. Moreover, there is no indication that he contacted any members of MHT's congregation to determine whether parking was adequate. The only testimony on this issue was that of Reverend Moss, who said that some members of the congregation had difficulty finding parking in the area of the church. We note that none of the congregants testified before the Board on MHT's application.
In any event, we are convinced that, to the extent that the Board relied upon Polyniak's testimony as to the adequacy of street parking, it erred in doing so.
E. Evaluation of Adjacent Structures or the Neighborhood
MHT contends that the Board erred by considering the impact the proposed parking lot would have on the entire neighborhood, rather than the adjacent structures.
In support of this contention, MHT relies upon the statement in Coventry Square, where the Court said that the board must evaluate the impact of the proposed conditional-use variance "upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Supra, 138 N.J. at 299 (internal quotations and citations omitted).
We are convinced, however, that Coventry Square does not preclude the Board from considering the effect a variance would have on the entire neighborhood. While the Board may consider the impact the development will have on immediately adjacent properties, the Board can certainly assess the impact the variance will have on the entire surrounding neighborhood in determining whether the variance will be a substantial detriment to the public good.
We therefore conclude that the trial court erred in affirming the Board's decision. We are convinced that, for the reasons stated, the Board erred in its decision on MHT's application.
We remand the matter to the Board to reconsider the application, in accordance with our decision. On remand, the Board shall consider the application pursuant to the Coventry Square standards, and review the variance requests in light of the ordinance that was in effect when MHT filed its application. See N.J.S.A. 40:55D-10.5 (development regulations in effect when an application is submitted shall govern review of the application and any decision made thereon).
The parties should be afforded the opportunity to present additional evidence on the traffic-safety issues, and on the present adequacy of the street parking for persons attending church services. Polyniak may be permitted to provide the required factual support for his opinions. The Board should also re-assess Dolan's testimony in light of any new or additional testimony that is presented.
In view of our decision, we need not consider whether the Board's earlier decision violated RLUIPA.
Reversed and remanded to the Board for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION