NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0717-07T30717-07T3

BOARD OF EDUCATION OF THE

CITY OF CLIFTON,

Plaintiff-Respondent/

Cross-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE CITY OF CLIFTON,

Defendant,

and

VAN NESS FAMILY TRUST,

Defendant/Intervenor-

Appellant/Cross-Respondent,

and

PROLOGIS 230 BRIGHTON, LLC,

Defendant-Intervenor.

___________________________________

Argued April 20, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1674-06.

Charles Rabolli, Jr., argued the cause for appellant/cross-respondent Van Ness Family Trust (Carlet, Garrison, Klein & Zaretsky, L.L.P., attorneys; Mr. Rabolli on the brief).

Anthony V. D'Elia argued the cause for respondent/cross-appellant Board of Education of the City of Clifton (Chasan, Leyner & Lamparello, attorneys; Mr. D'Elia, of counsel and on the brief; Jordan S. Friedman, on the brief).

The opinion of the Court was delivered by

SIMONELLI, J.A.D.

Defendant-intervenor Van Ness Family Trust (Van Ness) appeals from the August 30, 2007 Law Division order and final judgment reversing the decision of defendant Zoning Board of Adjustment of the City of Clifton (Zoning Board) denying the application of plaintiff Board of Education of the City of Clifton (BOE) for a use variance to convert a vacant warehouse located in an industrial zone into a 500-student annex to Clifton High School (CHS). The BOE cross-appeals from the November 22, 2006 Law Division order and final judgment remanding the matter to the Planning Board of the City of Clifton (Planning Board).

On appeal, Van Ness contends, in part, that the trial judge erred: (1) in not finding that the BOE's notice of the hearing on the application required by N.J.S.A. 40:55D-11 was defective; (2) in remanding the matter to the Planning Board rather than affirming the denial of the variance due to the BOE's failure to comply with N.J.S.A. 40:55D-31a; (3) in not permitting the submission of the Planning Board's record to the Zoning Board; (4) in finding the application consistent with the master plan as a matter of law; (5) in substituting his opinion of the witnesses for that of the Zoning Board; (6) in his expansive view of the Educational Facilities Construction and Financing Act, N.J.S.A. 18A:7G-1 to -48, (EFCFA or Act); (7) in failing to correct the Zoning Board's wrongful foreclosure of various areas of the objectors' inquiry; and (8) in making numerous factual and legal errors.

On cross-appeal, the BOE contends, in part, that the Zoning Board's decision was arbitrary, capricious, and unreasonable and was based on unsupported or unreliable factors and/or net opinions, and that the trial judge erroneously remanded the matter to the Planning Board. We affirm.

Background

We summarize the facts from the extensive record. Due to overcrowding at CHS, the BOE decided to acquire property for the construction of a 500-student ninth-grade annex. An advisory committee was established to investigate possible sites for the proposed school. The committee recommended Latteri Park; however, the City's voters rejected that recommendation in a referendum. The committee also recommended, and the voters approved, a three-acre site located at 290 Brighton Road, Clifton (the property), which housed a vacant warehouse that the BOE would convert into the proposed school. Although the property is in the Allwood section of Clifton, which is primarily a single-family residential neighborhood with industrial and commercial uses located along a railroad line, it is located in the M-2 general industrial zone, where schools are not permitted. Accordingly, a use variance was required for the proposed school.

Prior to acquiring the property and proceeding with the project, the BOE submitted to the State Department of Education (DOE) an application for land acquisition pursuant to the Act and N.J.A.C. 6A:26-7.1. In connection with the application, the BOE had to submit a letter from the Planning Board indicating that the Planning Board had reviewed the project's site plan.

On September 22, 2004, the BOE wrote to the City planner about the project and included a schematic site plan and building floor plan. The BOE requested a letter from the Planning Board that it had reviewed the schematic site plan. The letter also indicated that the BOE would make a formal application to the Planning Board "when the bond referendum passes in December 2004 and the project becomes a reality."

Dennis Kirwan (Kirwan), the then City planner, responded by letter, dated October 1, 2004, that he had reviewed the site plan; however, he provided no comments and, instead, posed several questions for which he requested answers. Without answering the questions, the BOE submitted Kirwan's letter to the DOE. Because the DOE approved the project on November 3, 2004, it apparently deemed the letter sufficient to satisfy the BOE's obligation to obtain recommendations from the Planning Board.

On April 25, 2005, the BOE submitted an application to the Zoning Board for a use variance to convert the vacant warehouse into a school. Thereafter, on May 19, 2005, the BOE acquired title to the property from Mayer Textile Machine Corporation (Mayer). Mayer also owned adjacent property located at 310 Brighton Avenue, on which it operated a business. The BOE granted Mayer an easement near the rear of the property, which would permit ingress and egress of large tractor trailers delivering goods to Mayer's loading dock. A fence would separate the two properties, and in order for Mayer to access the easement, a sliding gate would have to be opened.

A partially-occupied, light industrial/warehouse property is located on the other side of the property. To the east/rear of the property are railroad tracks; to the west, across Brighton Road, is a large residential zone in which schools are a permitted use, consisting of single family residential dwellings and a 9.3 acre public park, with playing fields directly opposite the property. There is a twenty-five mile per hour speed limit along Brighton Road, and on-street parking is permitted along both the northbound and southbound travel lanes. Videotape evidence shows the residential side of the road, which is a typical suburban neighborhood with well-kept homes and lawns and the industrial side, which exists in campus-like settings, set back and separated from the road by large trees and well-maintained.

The BOE sent notice to all affected property owners, indicating that a public hearing on its application was scheduled before the Zoning Board for August 17, 2005. On August 2, 2005, the BOE notified Kirwan of the hearing date.

After the hearing, on August 29, 2005, Kirwan wrote to the DOE about "serious issues with the application." Specifically, he advised the DOE that the BOE had not applied to the Planning Board as required by N.J.S.A. 40:55D-31a, and thus, the DOE should not have approved the project. He also claimed that the project was not consistent with the City's 2003 master plan, and that the site plan contained several basic design flaws. He demanded that "all actions on this application be stopped."

On September 27, 2005, the DOE responded that it was satisfied that the BOE had met it's obligations under N.J.S.A. 40:55D-31, and that it had considered Kirwan's concerns, but nonetheless, affirmed its approval of the project.

The Master Plan and the First Hearing

Before the Zoning Board

The Zoning Board held nineteen hearings between August 17, 2005 and April 19, 2006, during which it heard testimony about whether the proposed school was consistent with the master plan. The master plan notes that the City is "a fully developed community, with few remaining developable vacant lots." It is "the seventh largest city in New Jersey . . . primarily developed as a residential community composed mostly of single-family detached and two-family dwellings," although it also has "a declining industrial base."

The master plan also notes that "[t]his established development pattern suggests that the City's future land use planning issues will revolve primarily around the community's response to redevelopment of existing sites, rehabilitation, and/or adaptive reuse of existing buildings and sites." No new industrial areas were proposed, and the decline of the City's industrial base was cited as an opportunity for the City "to pursue revitalization and redevelopment efforts" that would promote "the growth of the City's employment base, reinvestment in the public infrastructure, and an increase in the City's tax base."

The master plan established fourteen "general objectives." Those most frequently cited at the hearings are:

1. To encourage City actions to guide the appropriate use or development of all lands in Clifton which will promote the public health, safety, morals and general welfare.

. . . .

3. To provide adequate light, air and open space.

. . . .

5. To promote the establishment of appropriate densities and concentrations that will contribute to the well being of persons, neighborhoods, communities and regions and preservation of the environment.

6. To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies. . . .

The master plan also established twenty-one goals with accompanying policy statements. Those most frequently cited at the hearings are:

Goal 1: To continue to encourage a balance of land uses with diversified residential areas, commercial areas to serve the residents of Clifton and nearby communities, and office and industrial areas to provide jobs and strengthen the tax base.

Policy Statement 1: The City of Clifton recognizes that one of its most significant attributes is a balanced distribution of land uses. The Plan's land use recommendations are designed to protect and reinforce the prevailing residential development patterns in the community, and preclude any introduction of incompatible non-residential uses in these neighborhoods or expansion of existing nonconforming uses. The recommendations are also designed to encourage commercial and industrial uses in established commercial areas through appropriate land use controls, and provide for infill development compatible to the uses and intensities to the levels, and locations of the established neighborhood.

. . . .

Goal 6: To encourage the re-use, rehabilitation or reconstruction of older non-residential areas and existing commercial and industrial structures which have been vacated for potential re-use as appropriate non-residential uses in order to maintain a balance of land uses, existing jobs and to produce new jobs. Environmentally safe uses should be encouraged in such re-use, rehabilitation or reconstruction should be accomplished.

Policy Statement 6: The City seeks to address the continuing loss of the manufacturing base by encouraging the adaptive reuse of older, obsolete industrial facilities. It is the policy of the city to promote the re-use of these facilities as non-residential uses in order to maintain the vitality of the employment base in the City and a balanced land use distribution; provide a comprehensive and coordinated plan to guide the redevelopment and necessary physical improvements; and plan for the redevelopment of vacant commercial and industrial structures as well as industrial complexes that are available to public and private redevelopment efforts. The city should actively promote the continued revitalization of existing commercial areas, identify potential parcels for redevelopment, and seek State and County funds earmarked for commercial revitalization.

. . . .

Goal 9: To provide adequate community facilities to serve Clifton's residents in terms of schools, parks and playgrounds, libraries, senior citizens centers, fire houses and other municipal buildings. A principal goal of this plan is to provide and preserve the community services for Clifton's residents, businesses and industry in terms of police and fire protection, adequate sanitary and storm sewers, street cleaning, snow removal, garbage disposal, health services, recreational programs, day care centers and senior citizen services.

Policy Statement 9: The city seeks to provide the minimum level of infrastructure improvements to accommodate local needs, and discourage the imposition of new or expanded facilities that may be utilized to encourage or support higher levels of development than contemplated in this plan. A principal goal of this plan is to encourage infrastructure improvements that would enhance the city's community facilities and service provided without resulting in increased pressures for more development in the community. The city's land use policy is expressly designed to discourage infrastructure improvements that would result in increased development pressures on the City's environmental features and, specifically, in the Garrett Mountain area.

. . . .

Goal 13: To enhance community appearance and the visual environment by encouraging good design for new and rehabilitated buildings.

Policy Statement 13: The imposition of design standards can enhance and assure that sites are developed in an attractive manner consistent with sound planning design criteria. This can be best reinforced by appropriate controls regarding building placement, lighting, signage, landscaping, parking, circulation, architectural details, and related elements. It is the city's policy to review and upgrade the current standards, where appropriate, to ensure they serve to enhance the site plan review process in the city.

Goal 14: To provide for a limited population growth during the time span of the Master Plan. The key factors which should be considered in planning for new development are water supply, water quality, air quality, transportation, storm drainage facilities, open space and the availability of new public facilities, including public schools.

Policy Statement 14: The City seeks to encourage the continued development that maintains and incorporates strict environmental performance standards. The intent of the plan is to provide for controlled development and redevelopment that separate incompatible land uses, that can be accommodated while minimize adverse impacts on the community's facilities, ensure that infill development does not adversely impact the environmental character of the area, its physical features, or circulation, and does not add to the physical congestion of neighborhoods. The City's current standards should be reviewed and upgraded, where appropriate, to require provision of open space for all new development projects.

Goal 15: To provide for the best possible development of the few remaining vacant tracts, keeping in mind the objectives of maintaining a balance of land uses and diversified residential uses.

Policy Statement 15: The City of Clifton recognizes that the protection of existing residential neighborhoods, community appearance and visual environment while looking to provide the best use and development design of the remaining vacant lots is a priority. The Plan's land use recommendations are designed to protect and reinforce the prevailing residential development patterns in the community, maintain and enhance existing areas of stability in the community, encourage the proper relationship between existing land uses by promoting a spatial distribution of uses and establishing areas which have their own integrity and uniformity of purpose.

Goal 16: To include in the review of development proposals and applications for re-zoning a study for the fiscal impact of such proposals on the City of Clifton; and to conduct a cost-revenue study which would analyze the revenue to be produced and the cost to municipal services.

Policy Statement 16: The City seeks to encourage development which is sensitive to the community's particular physical characteristics and will serve as an aesthetic and functional improvement to the community. The City recognizes that development pressure and infill development may result in increased demand on community facilities and services, traffic congestion, and other impacts on the community. It is the policy of this plan to enhance the protection of the community resources and maintain the community's quality of life. Within this framework, any new development and redevelopment projects in the City shall identify their fiscal and municipal services impact on the community.

Goal 17: To support the overall philosophy of the State Development and Redevelopment Plan (SDRP) as a means of providing growth management on a state-wide basis while retaining the principles of home-rule.

Policy Statement 17: The City maintains that the general intent of the State Development and Redevelopment Plan, to manage growth within the framework of an assessment of needs and infrastructure capabilities, represents a reasonable approach to growth management. The City recognizes that the State Development and Redevelopment Plan's specific planning area designation for Clifton, PA-1, represents a reasonable approach to growth management.

. . . .

Goal 19: To provide a variety of recreational uses for all segments of the City's population.[]

Policy Statement 19: The City seeks to provide the continued improvement of the recreation infrastructure to accommodate local needs; maintain attractive and aesthetically pleasing public open spaces for active and passive recreation opportunities; and establish policies and pursue funding for the creation of new open spaces and recreation facilities in the community. This can be best reinforced by encouraging new development and redevelopment projects to incorporate an open space component, where appropriate; supplementing existing parks with additional equipment and facilities as needed; and exploring purchasing of vacant environmentally constrained properties for open space preservation off Valley Road. . . .

The master plan also noted a significant increase in the number of school age children residing in the City. Between 1990 and 2000, the population of children five to fourteen years old had increased by 40.9 percent. However, in the community facilities element, the master plan contained no recommendations as to how to address the needs of this population through new or improved schools. The master plan noted only two goals with respect to community facilities: (1) "[t]o maintain and improve existing City resources rather than construct or acquire major new facilities"; and (2) "[t]o provide community facilities that will meet local needs and to respond to the varying demands of different demographic groups."

The Conditions at CHS

Three witnesses testified about the conditions at CHS: Thomas Lyons (Lyons), a member of the community advisory committee, who addressed the long-term facility needs of the City's middle school and high school; Karen Perkins (Perkins), the BOE's business administrator and secretary; and Lou Fraulo (Fraulo), CHS's supervisor of counseling and guidance, who is responsible for the scheduling of teachers and students. According to these witnesses, CHS has approximately 3400 students, it is the second largest high school in the State, it is significantly overcrowded, and the student population is expected to grow steadily, as it has over the past five-to-ten years.

As to how the overcrowding affects students and faculty, Perkins and Fraulo testified that classes are held in rooms not designated for that purpose. For example, the cafeteria is used for drama, science, Spanish, health, and history classes, and the computer lab room is used for algebra, geometry and journalism classes. Also, CHS utilizes space at the Boys and Girls Club, with students bussed to and from these locations for regular coursework. Certain industrial arts courses have been eliminated from the curriculum so that the rooms used for those courses may be used for other purposes.

Both the advisory committee and the BOE found the property suitable for a school building, notwithstanding its presence in an industrial zone. In this regard, Lyons and Perkins noted that schools in Clifton are "located in every type of neighborhood, whether it's residential or commercial," across the street from lumber yards and chemical facilities, and along heavily trafficked roads, including two schools located very close to Route 46. They also found that the City is "overpopulated," with few options for the placement of new school buildings.

The Proposed School

The BOE proposed to renovate the vacant warehouse to accommodate 500 students and between thirty and thirty-eight staff members, with twenty-two classrooms, two science rooms, an art room, a music room, a media library area, a computer lab, administrative offices, and a cafeteria and gymnasium. The BOE would renovate the building to insulate the students from any noises arising from the railroad and surrounding businesses.

There would be no weekend use of the proposed school, nor would the gymnasium be available to the public. The normal operating hours would be 7:45 a.m. to 2:30 p.m., although students could arrive in the morning as early as 6:45 a.m. Students would not be permitted to leave the building during their lunch hours or for any other reason. Any students participating in after-school activities would be transported to CHS, since no such activities would occur at the proposed school.

A parking lot would be constructed on the property to accommodate staff and visitors' vehicles. There will be no parking spots for students because ninth grade students are generally too young to drive. There would be a drop-off/pick-up zone for the four buses anticipated as necessary to transport students, which would entail removing some greenery in the front of the property. There also would be a drop-off zone for parents who drive their children to school, and three driveways would separate bus traffic from other vehicles. To protect students' safety during arrival and dismissal hours, staff members would be stationed outside to monitor the driveways, and a staff member would be assigned to open the gate to the easement to ensure that children did not intermingle with any vehicles accessing the easement.

The BOE anticipated that a large percentage of students would walk to the school. For those students, the BOE proposed a site plan and "route to school map," with crossing guards stationed at appropriate intersections, and a crosswalk in front of the school. Both the BOE's traffic expert and Sergeant Richard Stuart of the Clifton Police Department testified that the proposed routes could guide the students safely to school with the crossing guards' assistance.

In terms of the legal criteria for a use variance, the BOE's expert planner, David Hals (Hals), testified that the proposed project would not impair the public safety, health, morals and general welfare of Clifton residents, nor would it cause a substantial detriment to the public good. He also testified that schools are an inherently beneficial use, and that the proposed school was necessary to address overcrowding at CHS. Therefore, Hals concluded that the proposed school would provide an absolute positive benefit for the community.

Moreover, Hals did not believe that the proposed project would substantially impair the City's master plan. He testified that the City's industrial zone was declining, with a significant number of vacant buildings, including the vacant warehouse on the property. Therefore, redevelopment of the warehouse was consistent with Goal 6 of the master plan. Also, loss of the warehouse from the tax base would result in a financial loss to the City of less than $95,000. Hals also perceived no harm to the M-2 industrial zone in particular.

The expert traffic engineers found that the proposed school would result in only a minor increase in traffic. Hals believed that whatever minimal conflict might exist between the school's use and the neighboring industrial uses could be mitigated with appropriate staffing during pick-up and drop-off times. In this regard, Hals also noted that a school use was much less intense than a permitted industrial use given the short school day, no weekend use of the school, and school holidays and summer vacation.

Finally, Hals noted that although school uses were not permitted in industrial zones, the property was directly across from a residential zone in which schools were a permitted and established use. Therefore, placement of the proposed school on the property would benefit the neighboring residential community.

The BOE's expert real estate appraiser, Jon P. Brody (Brody), opined that development of the property as a school would "not have any detrimental impact on the value of the surrounding industrial properties[,]" and that "it would probably have a positive effect on the residential properties across the street." In his forty years of professional experience, Brody had seen no instance in which a school reduced the values of nearby commercial, industrial or residential properties, nor had he seen any empirical data supporting such a conclusion. He testified that school buildings usually enhance property values rather than diminish them because they create stability in the community. He also testified that alleviating the overcrowding at CHS would positively effect the City's overall residential and commercial real estate markets.

The BOE's traffic expert, Louis Luglio (Luglio), did a traffic impact study, including traffic counts during peak hours (7:00 a.m. to 9:00 a.m. and 2:00 p.m. to 6:00 p.m.). He opined that the proposed school would "have a negligible effect on traffic conditions in the vicinity of the site," with all nearby intersections operating at acceptable levels of service even during peak hours. Although the northbound approach to the intersection at Brighton Road and Mt. Prospect Avenue might deteriorate from a level of service B to a level of service E during the morning peak hour (8:00 a.m. to 9:00 a.m.), Luglio concluded that this amounted to only a twenty-seven second delay.

Luglio also concluded that the proposed school would generate less traffic than if the property was used for its permitted industrial use. He also noted that the area had a relatively low incidence of motor vehicle accidents, 2.8 crashes per million vehicle miles, compared to the statewide average of 4.8.

The Zoning Board's traffic expert, Brian Intindola (Intindola), also did a traffic impact study, including traffic counts along Brighton Road. He concurred with Luglio's methodology and findings. Intindola testified that "there are not very heavy volumes on Brighton Road as it is now," and that the proposed school was safe and sufficient from a parking and traffic perspective, including the proposed pedestrian routes and the easement.

Finally, all relevant county and state bodies approved the project. The county superintendent of schools recommended that the DOE approve the project, which it did in accordance with the Act. The State Department of Transportation authorized the establishment of the BOE's proposed mid-block crosswalk along Brighton Road.

Further, the Clifton Fire Prevention Bureau was satisfied with the proposed project's safety, subject to some minor design adjustments, which the BOE made. The Clifton Police Department found that there was a continuous, safe pedestrian route available to students walking to and from the property.

The Objectors

Community members spoke for and against the proposed school. Two objectors presented evidence: Van Ness, owner of property located 400 Brighton Road, just 280 feet from the property, on which it operated a plastics manufacturing business, and intervenor Prologis 230 Brighton, LLC (Prologis), the owner of property located at 230 Brighton Road, immediately adjacent to the property.

Fundamentally, the objectors questioned the need for a high school annex. They cited the quality of Clifton's educational system and the achievements of its students, notwithstanding any overcrowding at CHS. They also noted that the average number of high school students per classroom, as reported by the BOE to the DOE, was comparable to or better than the State average. Fraulo testified, however, that the reported figure was misleading because it reflected the class size average for only one subject (English), and it did not account for the different sections of the subject, which often limit the number of students per class (e.g., limited English, basic skills English, and inclusion students).

The objectors also complained that the proposed school would adversely affect their businesses. Van Ness was most concerned about the increase in traffic, including pedestrian traffic. The Van Ness business operates twenty-four hours a day, five days a week, with shift changes at 7:00 a.m., 3:00 p.m., and 11:00 p.m., and between sixty and sixty-five employees working each shift. It has between twenty-five and thirty tractor trailer operations per day, occurring between 7:00 a.m. and 7:00 p.m., and between 150 and 175 train deliveries per year. It contended that the truck traffic, which included trucks frequently blocking the sidewalk, would be a danger to the students walking to and from the proposed school.

Prologis contended that the proposed school would adversely affect its ability to lease its property because potential tenants would view negatively the mingling of truck traffic and pedestrian traffic, thereby reducing its property's value. However, the Prologis property was then only partially occupied (130,000 of the 160,000 square feet were vacant), with no prospective tenant. Thus, it was speculative as to how any future tenant might utilize the space.

Van Ness's expert engineer and planner, Hal Simoff (Simoff), and Prologis's expert traffic engineer, Joseph Staigar (Staigar), agreed that the easement on the property created a safety hazard; that the site plan was insufficient for fire truck access; that there would be a conflict between trucks accessing the industrial properties and vehicles accessing the school; that the site plan did not account for sufficient parking spaces, which would cause parking congestion in the neighborhood; that there was a danger to child pedestrians navigating the proposed route to the school and around trucks near the school; and that the proposed school would adversely affect traffic in the area. Simoff claimed that traffic would increase between 4.5 and 5 percent during the peak hour; however neither he nor Staigar did any traffic studies or traffic counts along Brighton Road to support this claim.

The objectors' planning experts, Peter Steck (Steck) and Tom Stearns (Stearns), agreed that a use variance should not be granted. They admitted that a school was an inherently beneficial use but claimed that the property was inappropriate for a school because there would be substantial limitations on the school's operations that would diminish the beneficial nature (e.g., no extracurricular or outside activities), and because there was no way to insulate the students from the surrounding industrial environment.

Steck and Stearns also opined that the BOE could not meet the negative criteria--that the application could be approved without substantial detriment to the public good and without substantial impairment to the master plan and zoning ordinance. They also opined that zoning ordinance prohibited schools in an industrial zone; that the master plan encouraged only industrial uses of the property; that the State Development and Redevelopment Plan did not encourage schools in industrial areas; and that the proposed school would not further the City's public policy, as identified in the master plan, to maintain a balance of land uses, preserve jobs and property values, encourage job growth, limit the environmental impact of any development or redevelopment, and discourage the development of new or expanded public facilities. They further opined that placement of a school in the industrial zone would discourage industrial uses in the area, resulting in substantial impairment of the master plan and zoning ordinance, as well as a violation of sound planning principles that encourage the separation of disparate uses.

Similarly, Prologis's real estate expert, Robert Heffernan (Heffernan), concluded that a school use was inconsistent in an industrial zone. He opined that the noisy, dirty environment was not "conducive to a 'hall of learning,'" that there would be a conflict between the school and industrial uses and a reduction in the value of both the school and industrial properties, and that "[t]here obviously would be concerns for the health, welfare and safety of the students attending such a facility."

Finally, Van Ness presented a medical doctor, Vincent Bonagura (Dr. Bonagura), who raised concerns about the students' exposure to diesel exhaust fumes. The doctor testified that people exposed to such fumes are at risk of developing asthma, or a worsening their asthma. He admitted, however, that he possessed no knowledge about the specifics of the property or its neighborhood.

The Zoning Board's First Decision

On March 16, 2006, the Zoning Board voted five-to-two to deny the use variance, and adopted a resolution reflecting its decision. Relying upon what it deemed the "credible" testimony of Simoff, Staigar, Steck, and Stearns, the Zoning Board concluded that the proposed school was an inherently beneficial use but that the BOE had not met the negative criteria. Applying Sica v. Board of Adjustment of the Township of Wall, 127 N.J. 152 (1992), the Zoning Board found, in relevant part, that:

the first prong of the balancing test has been satisfied in that the school is an inherently beneficial use; that the second prong requires an identification of what the detrimental effect[s] that will ensue from the grant of the variances are; that Brighton Road is a heavily traveled truck route for the industrial uses; and based upon the testimony aforesaid, it is not safe for the students walking to and from the school and being dropped off at the site; that a school in the middle of an industrial zone will create detriments to the industrial uses; that odor from diesel fuel is negative for the health and safety of the students; that areas on the walking route map are not safe for pedestrians; that noise generated by the trucks from the industrial uses is not conducive for educating students; that the location of the railroad tracks to the rear of the premises creates additional hazards; that the easement for the adjacent property is a hazard; that the conduct of a school at the site would be so limited that the students would be deprived of the education and activities which they are entitled to; that with respect to the third prong, the Board has considered the testimony of the experts as well as the submission of conditions by the applicant and finds that whatever conditions are imposed will not reduce the detrimental effects from the location of the school at the site; with respect to the fourth prong, the Board has weighed the positive criteria-that is, the benefit-of the school against the negative criteria-which is safety for the students [-] and finds that the grant of the variance would cause substantial detriment to the public good[.]

[(Emphasis in original).]

The Zoning Board also found that the noxious odor of diesel fuel and heavy truck traffic were "detrimental to the safety of the neighborhood;" that the master plan did not allow schools in an industrial zone; that if it granted the variance, the character of the neighborhood would change to the detriment of both the industrial and residential uses; that "the school [would] be a nuisance to the surrounding industry;" that no conditions it imposed could alleviate the substantial detriments of the proposed project; that the trucks going to and from the adjacent properties would be a danger to students; that parking on sidewalks in the area created a hazard to pedestrians; and that the proposed walking route was not safe.

The Zoning Board also found that the proposed easement on the property did not promote the students' health, safety, and welfare; that truck use of the easement would create a hazard to students and teachers; that the BOE created its own hardship by purchasing the property without first obtaining a use variance; that the "location of the school in the middle of the industrial zone would amount to spot zoning;" that "[it's] obligation is not to validate the election but to uphold the integrity of the [master] plan and zone ordinance;" that "in weighing the positive against the negative [criteria], . . . the detriments of the application substantially outweigh the benefits;" and that "[t]he [property] is not particularly suitable for a school because of the aforesaid adjacent industrial uses[.]"

The First Hearing Before Judge Passero

On April 13, 2006, the BOE filed a complaint in lieu of prerogative writs, contesting the Zoning Board's denial of the use variance. Judge Passero permitted Van Ness and Prologis to intervene in that matter.

In August and September 2006, the parties submitted documents to the judge, supplementing the record. Notably, the BOE submitted portions of the Clifton municipal code addressing the construction and maintenance of sidewalks and the removal of snow and ice, which related to the Zoning Board's concerns about the safety of the walking route to the proposed school. The BOE also submitted the DOE's approval of the project, and documents allegedly showing that in 2004 and 2005, it wrote to the Planning Board and the City's planner, seeking review of the site plan. However, Kirwan claimed that the BOE never applied for the Planning Board's comments on the site plan and planning aspects of the project, as required by N.J.S.A. 40:55D-31a.

Van Ness submitted a letter from the Planning Board to the Zoning Board, which noted planning and zoning concerns about the proposed project. Van Ness also submitted the community advisory committee's findings and recommendations about the location of new school buildings at the property and Latteri Park; correspondence from the Zoning Board's engineers regarding the proposed school; correspondence from the county superintendent of schools to the DOE raising concerns about the proposed school; articles regarding diesel exhaust, school buses, and children's health and air pollution from truck traffic as it affects lung functioning in children living near motorways; a news article from the Clifton Journal about a proposed bridge at CHS, which would ease hallway congestion; and correspondence between the BOE's attorney and Van Ness, proposing the BOE's purchase of Van Ness's property.

Judge Passero visited the site and heard oral argument on November 1, 2006. In a detailed, twenty-page written opinion, dated November 9, 2006, the judge addressed jurisdiction and concluded that issues of educational adequacy, safety, transportation, and ingress and egress are solely within the DOE's jurisdiction and could not be considered by the Zoning Board. The judge reasoned as follows, in relevant part:

In this case, we have several competing government entities and must reconcile their relationship to one another with regard to a use variance application for a school. Where a local Board of Adjustment is reviewing a use variance application for a school, the powers of the Zoning Board must be circumscribed in order to give full effect to the New Jersey Legislature's delegation of powers to the state and local school boards.

. . . .

[B]y enactment of the EFCFA and subsequent administrative codes, the Legislature invested the state with supremacy with respect to matters concerning the safety, health and adequacy of educational facilities. Specifically, the EFCFA expanded the [DOE's] jurisdiction, previously outlined under Murnick [v. Bd. of Ed. of the City of Asbury Park, 235 N.J. Super. 225 (App. Div.), certif. denied, 118 N.J. 201 (1989)], to include many off-site safety issues. The most pertinent regulations, dealing specifically with safety and transportation, include: . . . N.J.S.A. 18A:39-1.5 . . . N.J.A.C. 6A:27-1.1 . . . N.J.A.C. 6A:27-11.4 . . . N.J.A.C. 6A:26-6.3[.]

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Therefore, the EFCFA and the regulations enacted thereunder delegated to the [DOE] the responsibility to ensure the safety of students with regard to on-site safety, off-site safety, and educational adequacy issues. . . . Here, since the Legislature gave the [DOE] authority to make determinations regarding the safety and adequacy of educational facilities, the local zoning board must defer to the [DOE's] findings regarding these matters.

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Therefore, when reading the extensive legislative scheme for education law in pari materia with the EFCFA, it is apparent that the Legislature intended to exclude certain issues from the jurisdiction of municipal zoning boards, including safety of students,