Filed Complaint with Exhibit

15 76. On January 8, 2025 the Board memorialized its decision on the Application by way of written resolution (hereinafter referred to as the “Resolution”). The Resolution is annexed hereto as Exhibit A. 77. The Resolution omits relevant facts that would more accurately portray the testimony, evidence and comments presented at the Hearing. 78. First, the Resolution (paragraphs 23-25) in citing support for the denial states: “Mr. Haizel testified that the proposed project would be the largest building in the area with only the Senior Building located a block away being larger.” This statement is something of an understatement as the Senior Building is significantly larger. The Resolution further quotes Mr. Haizel to state “[He] further testified that parking was driving the design of the building because to achieve necessary depth for parking, the building had to cover most of the lot.” But also “Mr. Haizel expressed concern and the limited on-site parking….” Reading these statements together, it is clear the Board was looking for something impossible, seeking a smaller building, which then creates a smaller footprint for parking, which only exacerbates the issue of limited parking. This was one of the points articulated well by Ms. Clark in explaining that the B-2 Zone standards do not make sense or align with the Master Plan for a mixed-use development. 79. Second, the Resolution states in point 26: “A majority of Board members opined that… the close setback to Main Street was not in keeping with other buildings in the area.” This too is incorrect. Plaintiff’s Architect and Planner both testified that nearby development on Main Street had similar setbacks and were in fact more stories, and that each residential property along Park Drive North had side yard setbacks of 5 to 7 ft. It was also noted in testimony the Property today has a retaining wall along Main Street with the same setback. Plaintiff’s planner testified that by bringing the building setback to street level, it would be an improvement for siteESX-L-001637-25 02/28/2025 2:34:16 PM Pg 15 of 32 Trans ID: LCV2025492774

16 circulation. 80. The Resolution also states: “Board members did not find Applicant’s traffic expert to be credible.” This is being offered without the Board having heard from an objecting traffic engineer or there being any testimony on record in opposition to Mr. Maltz’s testimony. The Board is free to disagree with an expert, but “must do so in reliance on contrary expert testimony rather than “bare allegations or unsubstantiated beliefs.” See N.Y. SMSA, at 338 (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adj., W. Windsor, 172 N.J. 75, 87 (2002)). 81. The Resolution also states: “Applicant fails to establish the c(2) criteria has been met as the detriments of the project substantially outweigh the benefits due to lack of required parking, lot coverage, and setbacks which do not allow for sufficient light, air and open space.” Again, Plaintiff contends this is a misapplication of the standard. At no point did the Board hear from an objecting planner to counter Ms. Clark’s planning testimony, and even when the Board’s planner suggested he had concerns about the size of the Proposed Development, there was no testimony regarding the planning proofs. Moreover, the Applicant addressed every one of the Board’s voiced concerns – a fact appreciated by several Board members on record during deliberation – over the course of the six Hearing dates and multiple plan revisions. 82. The Resolution is bare of details to counter Plaintiff’s expert testimony, and that is for good reason, as there was no such testimony. Reviewing the six public hearings, the opposition primarily came from the public who voiced concerns about traffic and safety issues along Main Street, neither of which would be impacted by this Proposed Development, and which were expressly addressed by the Applicant’s experts. 83. The Resolution further fails to address the fact that the Board’s planner testified that he thinks “this is a good use for the site and…it’s in keeping with the master plans andESX-L-001637-25 02/28/2025 2:34:16 PM Pg 16 of 32 Trans ID: LCV2025492774

17 ordinance” and will help “enliven this strip” and “calm the [zooming] a bit.” These are all statements in favor of Plaintiff’s Application. 84. The minimal findings set forth within the Resolution are wholly inconsistent with the evidence and testimony presented by Plaintiff and Plaintiff’s professionals. Further, they are not supported by the evidence in the record. COUNT I The Board’s Denial of the Application was Arbitrary, Capricious and Unreasonable. 85. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein. 86. The request for bulk variance relief was justified because the evidence demonstrated that the Property could sufficiently accommodate a mixed-use development while being essentially compliant with the bulk requirements set forth in comparable zones. 87. Plaintiff presented credible testimony by a professional planner that the Proposed Development would meet the positive and negative criteria for variances requested. 88. The Board’s own planner indicated that the attempt to provide additional parking on-site is what was driving the majority of the variance requests; something the Board expressly desired. 89. However, the Board did not provide any factual findings or legal conclusions in support of its outright disregard for the proofs presented by Plaintiff. 90. There is simply no credible evidence in the record to contradict Plaintiff’s satisfaction of the statutory criteria for the relief requested. 91. The individual actions, as well as the totality of the actions, of the Board in denying the Application, failed to account for the weight of the evidence and proofs established byESX-L-001637-25 02/28/2025 2:34:16 PM Pg 17 of 32 Trans ID: LCV2025492774

18 Plaintiff and Plaintiff’s professionals and constituted an arbitrary, capricious, and unreasonable exercise of official authority by the Board. 92. The Board failed in its exercise of authority pursuant to statutory and governing law to consider the weight of the evidence before it, without any proper basis, and failed to make a determination based upon applicable statutory criteria. 93. The Board arbitrarily and unreasonably ignored the absence of conflicting evidence and wholly disregarded the weight of the evidence established by Plaintiff and Plaintiff’s professionals. 94. The Board utterly failed to acknowledge that Plaintiff met the specific statutory criteria necessary for the variance relief requested. 95. Plaintiff’s interests have been adversely affected by the Board’s arbitrary application of its zoning and land use powers, which have been exercised in violation of the MLUL, other statutory provisions, and governing case law. 96. The denial of the Application was not supported by any credible evidence and was arbitrary, capricious, and unreasonable, and contrary to both fact and law. WHEREFORE, Plaintiff respectfully request that this Honorable Court enter judgment against Defendants as follows: A. Declaring that the Board’s denial of the Application was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; B. Declaring that the Resolution memorialized by the Board was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; C. Granting Plaintiff preliminary and final major site plan and conditional use approval and bulk variance relief, which approval shall expressly include the right of Plaintiff to develop the Property with a three (3) story, mixed-use building with 12 residential units and approximately 900 sq.ft. of commercialESX-L-001637-25 02/28/2025 2:34:16 PM Pg 18 of 32 Trans ID: LCV2025492774

19 space; and D. Awarding such other and further relief as this Honorable Court may deem equitable and just, including attorney’s fees and costs of suit. COUNT II The Resolution Adopted by the Board was Arbitrary, Capricious, and Unreasonable. 97. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein. 98. The Resolution adopted by the Board failed to accurately depict the Hearing before the Board and the evidence and testimony presented by Plaintiff as set forth in the record. 99. The Resolution further failed to set forth any substantive analysis of the statutory criteria in relation to the specific relief sought by Plaintiff in connection with the Application. 100. The Resolution provided no factual findings or legal conclusions in support of the Board’s outright disregard for the specific relief sought by Plaintiff in connection with the Application. 101. The individual actions, as well as the totality of the actions, of the Board in adopting the Resolution failed to account for the weight of the evidence and proofs established by Plaintiff and Plaintiff’s professionals and constituted an arbitrary, capricious, and unreasonable exercise of official authority by the Board. 102. The Board failed in its exercise of authority pursuant to statutory and governing law to consider the weight of the evidence before it, without any proper basis, and failed to make a determination based upon applicable statutory criteria. 103. The Board arbitrarily and unreasonably ignored the planning testimony of Plaintiff’s expert in favor of inferior evidence and gave unconscionable weight to public comment from non-experts.ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 19 of 32 Trans ID: LCV2025492774

20 104. Separately, despite the undisputed proofs which demonstrated that the Application could be granted in its entirety, the Board arbitrarily, capriciously, and unreasonably adopted the Resolution, which did not include accurate factual findings or legal conclusions. 105. Plaintiff’s interests have been adversely affected by the Board’s arbitrary application of its zoning and land use powers, which have been exercised in violation of the MLUL, other statutory provisions, and governing case law. WHEREFORE, Plaintiff respectfully request that this Honorable Court enter judgment against Defendants as follows: A. Declaring that the Board’s denial of the Application was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; B. Declaring that the Resolution memorialized by the Board was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; C. Granting Plaintiff preliminary and final major site plan and conditional use approval and bulk variance relief, which approval shall expressly include the right of Plaintiff to develop the Property with a three (3) story, mixed-use building with 12 residential units and approximately 900 sq.ft. of commercial space; and D. Awarding such other and further relief as this Honorable Court may deem equitable and just, including attorney’s fees and costs of suit. COUNT III The Denial of the Application by the Board and the Memorializing Resolution Constituted an Abuse of Discretion. 106. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein. 107. The individual actions, as well as the totality of the actions, of the Board were arbitrary, capricious, unreasonable, and otherwise without basis in law or fact, and contrary toESX-L-001637-25 02/28/2025 2:34:16 PM Pg 20 of 32 Trans ID: LCV2025492774

21 the Board’s statutory obligations and the lawful rights of Plaintiff. 108. Plaintiff’s interests have been adversely affected by the Board’s arbitrary and irrational application of its planning, zoning, and land use powers, which have been exercised by indirection and in violation of governing law. 109. The Board’s actions in denying the Application and adopting the Resolution, despite the overwhelming and uncontroverted testimony and evidence presented by Plaintiff, were contrary to the fundamental principles of sound planning, violated the spirit and intent of the MLUL, and constituted an abuse of discretion. WHEREFORE, Plaintiff respectfully request that this Honorable Court enter judgment against Defendants as follows: A. Declaring that the Board’s denial of the Application was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; B. Declaring that the Resolution memorialized by the Board was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; C. Granting Plaintiff preliminary and final major site plan and conditional use approval and bulk variance relief, which approval shall expressly include the right of Plaintiff to develop the Property with a three (3) story, mixed-use building with 12 residential units and approximately 900 sq.ft. of commercial space; and D. Awarding such other and further relief as this Honorable Court may deem equitable and just, including attorney’s fees and costs of suit. COUNT IV The Denial of the Application by the Board and the Memorializing Resolution are Unsupported by both Fact and Law. 110. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein.ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 21 of 32 Trans ID: LCV2025492774

22 111. The Board’s decision must reflect the actual deliberations and specific findings of fact made by it in order to sustain the validity and propriety of same, and such deliberations and findings must be confined to the statutory review powers of the Board. 112. The Board’s denial of the Application and the memorializing Resolution are defective and must not be allowed to stand as valid. 113. The Board’s reasons for denying the Application are based on factors that were not to be considered by the Board. 114. Further, the factual findings and legal conclusions contained in the Resolution are unsupported by the evidence presented and the record established, make selective reference to the facts presented during the Hearing, are contrary to law, and erroneous, and confirm the arbitrary and capricious conduct exhibited by the Board in denying the Application. 115. The Board failed to make proper factual findings and legal conclusions in accordance with the MLUL, other statutory provisions, and governing case law. 116. The Board’s actions of denying the Application and adopting the Resolution were arbitrary, capricious and unreasonable, otherwise without basis in law or fact, and unsupported and contrary to the Board’s statutory obligations and the lawful rights of Plaintiff. WHEREFORE, Plaintiff respectfully request that this Honorable Court enter judgment against Defendants as follows: A. Declaring that the Board’s denial of the Application was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; B. Declaring that the Resolution memorialized by the Board was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; C. Granting Plaintiff preliminary and final major site plan and conditional use approval and bulk variance relief, which approval shall expressly include theESX-L-001637-25 02/28/2025 2:34:16 PM Pg 22 of 32 Trans ID: LCV2025492774

23 right of Plaintiff to develop the Property with a three (3) story, mixed-use building with 12 residential units and approximately 900 sq.ft. of commercial space; and D. Awarding such other and further relief as this Honorable Court may deem equitable and just, including attorney’s fees and costs of suit. COUNT V The Denial of the Application by the Board and the Memorializing Resolution were Ultra Vires. 117. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein. 118. Plaintiff made extensive efforts to design the proposed development so as to minimize any negative impacts upon surrounding properties by stepping back the upper levels of the Proposed Development to create better conforming setbacks. 119. In denying the Application, the Board implicitly and expressly acknowledged that its opposition to the Application stemmed from public opposition to the Proposed Development. In so doing, the Board failed to effectuate the intent and purpose of the governing body as expressed within the Borough’s Master Plan, and as set forth in detail above, thus usurping the powers of the governing body in contravention of the MLUL, other statutory provisions, and governing case law. 120. Moreover, the Board’s concern regarding traffic and safety were only brought up after there had been a vehicular-pedestrian collision along Main Street, which was after Plaintiff’s traffic expert had concluded testifying. This accident is even referenced in the Resolution (paragraph 45) and had no bearing on the subject Application and should have been given no weight. In fact, reasonable minds would conclude that this unrelated traffic accident unduly influenced the Board in coming to its decision on the subject Application. 121. As a result of the aforementioned ultra vires actions of the Board, Plaintiff has been,ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 23 of 32 Trans ID: LCV2025492774

24 and continues to be, injured and deprived of its rights as developer of the Property. WHEREFORE, Plaintiff respectfully request that this Honorable Court enter judgment against Defendants as follows: A. Declaring that the Board’s denial of the Application was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; B. Declaring that the Resolution memorialized by the Board was arbitrary, capricious, unreasonable and contrary to the MLUL, the Zoning Ordinance, and the lawful rights of the Plaintiff; C. Granting Plaintiff preliminary and final major site plan and conditional use approval and bulk variance relief, which approval shall expressly include the right of Plaintiff to develop the Property with a three (3) story, mixed-use building with 12 residential units and approximately 900 sq.ft. of commercial space; and D. Awarding such other and further relief as this Honorable Court may deem equitable and just, including attorney’s fees and costs of suit. COUNT VI The Board Failed in its Duty to “Turn Square Corners.” 122. Plaintiff incorporates all of the foregoing paragraphs by reference as if same were fully set forth at length herein. 123. The Board owes a duty to the public to “turn square corners” as articulated by the Supreme Court in F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418 (1985). 124. By denying the Application, which denial was unsupported by the evidence and testimony presented, the Board improperly and unlawfully acted in violation of this doctrine. 125. The actions of the Board violated fundamental concepts of fairness. 126. As a result of the aforementioned defects and conduct by the Board, Plaintiff has been, and continues to be, injured and deprived of its rights as a business entity and developer of the Property.ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 24 of 32 Trans ID: LCV2025492774