NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

ESPINOSA, J.A.D.

For over sixty years, the Matheny School and Hospital (plaintiff) has operated a medical and educational facility serving individuals with developmental disabilities on an eighty-one acre site in the Borough of Peapack and Gladstone (Borough). Over the decades, both the size of the facility and the services offered have expanded. This appeal concerns Matheny's 2008 application for preliminary and final major site plan approval, which called for a three-phase expansion that included the construction of a nearly 50,000 square foot building addition. After the Land Use Board (the Board)2 determined that the facility did not qualify as a "Residential Healthcare Facility in Conjunction with a School," a permitted but undefined conditional use under Borough of Peapack and Gladstone, N.J., Ordinance 751 (July 14, 1998) (the Ordinance), plaintiff applied for a use variance, which was denied. The trial court affirmed both decisions and granted summary judgment, dismissing plaintiff's discrimination claims under the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C.A. § 3601 to-3631, and New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-49. In this appeal, plaintiff argues that the Board's interpretation of the Ordinance provision was improper, that the denial of the application for a use variance was arbitrary, capricious or unreasonable, and that the trial court erred in granting the Board's motion for summary judgment on its discrimination claims. For the reasons that follow, we affirm.

Plaintiff filed a complaint in lieu of prerogative writs seeking: a judgment reversing the Board's denial of their application for site plan approval and a variance; a declaration that its facility was a permitted conditional use under the Borough's zoning ordinance; and that the Board's interpretation of the zoning ordinance and its variance denial violated the LAD and the FHAA. S.O.S., a nonprofit corporation, and William and Victoria Kasserman were granted leave to intervene.

The prerogative writ and discrimination claims were severed. Following a trial, the trial judge affirmed the Board's decisions. The LAD and FHAA discrimination claims were subsequently dismissed on summary judgment.

I.

In Point I, plaintiff argues that the trial court erred in upholding the Board's determination that the facility did not constitute a permitted conditional use, and that therefore plaintiff was required to obtain a use variance. Specifically, plaintiff claims that its use was permitted because it was a "Residential Healthcare Facility in Conjunction with a School," a permitted conditional use in the zone.

A.

The Matheny site is located at the top of a hill at the end of Highland Avenue, a dead-end street nine-tenths of a mile long, that ranges from seventeen to twenty-five feet wide. The road has no shoulders or sidewalks, areas of steep vertical slopes, sharp curves, horizontal pitches and blind spots. As a result of these conditions, pedestrians, including schoolchildren who walk to get a school bus, must walk in the roadway at several points. The only alternate emergency access to the site is Blair Drive, an unlit private road with potholes that is steeply curved and often impassable after storms.

Beginning in 1954, plaintiff operated a medical facility on the site serving individuals with developmental disabilities. At the start, there were approximately forty residents at the facility and thirty-five employees. In 1970, the facility became licensed as a Special Hospital. N.J.A.C. 8:43G-1.3(b)(2).3 Later in the 1970s, plaintiff began running a school on the site and subsequently received a special educational license. The educational portion of the facility includes physical and speech therapy, as well as academics. The facility serves adults and children with cerebral palsy, muscular dystrophy, spina bifida and other neurological conditions, providing both inpatient and outpatient medical and dental services, and also serves as a teaching hospital.

During the period from the 1950s to 1998, the Matheny site was placed in different zones as a result of changes in the zoning ordinance. A major site plan for the construction of two new residential buildings was approved by the Borough's planning board in 1979. At that time, the Matheny site was in the R-1 residential zone where schools and hospitals were permitted conditional uses.

In October 1996, the Board approved plaintiff's application for a major site plan approval to construct a performing arts center. Conditions for the approval reflect a concern regarding traffic on Highland Avenue. As of 1983, the site had been placed in the R-A zone, where schools were permitted uses and healthcare facilities continued to be conditional uses.

In December 1996, the Borough adopted a new Master Plan in accordance with N.J.S.A. 40:55D-28. The Master Plan noted the existence of certain "large scale quasipublic and institutional uses in existence in the Borough," which included Matheny, and "recommended that the ordinance acknowledge these uses and allow for their reasonable expansion while protecting the adjoining properties."

In July 1998, the zoning ordinance was amended to implement the Master Plan, resulting in the Ordinance at issue here. The Matheny site was placed in the RE Rural Estate Zone, (RE Zone) which has a minimum lot size of five acres. The Ordinance identified the purposes of this zone, which include: "Preserve the rural character of the environs of the Borough and the beauty of the area so as to lessen the effect of artificially imposed development," and "Protect the natural and estate character of this area of the Borough from the adverse impacts of development." The principal permitted uses were: single-family detached dwellings; agricultural, horticultural, silvicultural and equestrian uses; municipally-owned and operated buildings and land; and an age-restricted residential community. The Ordinance defines "conditional use" with the same language as that contained in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to-163, N.J.S.A. 40:55D-3:

Section 23-40.10(a) states further:

Pursuant to Section 23-40.10(b)(3), "Residential Healthcare Facility in Conjunction with a School," constituted a permitted conditional use. The Ordinance did not define this term but set forth requirements to be met for a facility to qualify as this conditional use. Among those requirements, Section 23-40.10(b)(3)(a) stated the site of the facility had to be "located in the Borough sewer service area."

During the period from 1998 to 2008, the Board passed resolutions approving substantial additions and improvements to the Matheny facility. Plaintiff's use of the property was described as "generally a conditional use authorized in that zone" in resolutions passed by the Board.

In May 2008, plaintiff filed the instant application for preliminary and final major site plan approval for the construction of a nearly 50,000 square foot building addition. Plaintiff proposed to increase the number of hospital beds from 102 to 140,4 and the number of on-site parking spaces from 227 to 315. It also proposed to construct a gymnasium for physical activities and therapy, which was to include an indoor therapeutic pool so aquatic therapy could take place year-round. It requested a ten-year extension of the approvals so that the expansion could be built in three phases.

Issues were raised as to whether plaintiff's activities and use of the site were permitted uses in the RE Zone. Plaintiff contended that the site qualified as a conditional use, a "Residential Healthcare Facility in Conjunction with A School." Pursuant to the authority granted by N.J.S.A. 40:55D-70(b), the Board conducted a hearing to determine whether the uses engaged in or proposed by plaintiff met that definition as permitted by Sections 23-39.1(d)(4) and 23-40.10(b)(3) of the Ordinance. The Land Use Board heard testimony from three witnesses for plaintiff: Steven Proctor, President and Chief Executive Officer of Matheny; Ronald Kennedy, a licensed professional engineer and professional planner; and Dr. Gary Eddey, the Medical Director at Matheny. In addition, Cindy Coppola, the Board's Planner,5 and members of the public testified.

In a thirty-eight-page resolution, the Board summarized the testimony received and set forth its reasons and conclusion that Sections 23-39.1(d)(4) and 23-40.10(b)(3) of the Ordinance "are so vague as to be void." The Board went on to consider the intent of the drafters of those sections of the Ordinance. It acknowledged that the permitted conditional use provision was added to the Ordinance in 1998, after the Master Plan had recommended the acknowledgment of institutional uses such as Matheny. However, the Board rejected plaintiff's argument that the conditional use was designed for Matheny, noting that Matheny could not satisfy all the required conditions, a point conceded by plaintiff. The Board also rejected the argument that past approvals established binding precedent that plaintiff qualified as the conditional use, finding that the issue had not previously been analyzed with any specificity.

The Board concluded that the drafters intended to employ the definition contained in DHSS regulations, i.e., N.J.A.C. 8:43-1.3, which defines "Residential health care facility" as "a facility located with, and operated by, a licensed health care facility that provides food, shelter, supervised health care and related services, in a homelike setting, to four or more persons 18 years of age or older who are unrelated to the owner or administrator." The Board observed, "That use is, by its very definition, a low intensity use managed by nurses with patients over the age of 18 requiring care on average of 12 minutes per week," and concluded "this is not the use engaged in by Matheny." As a result, the Board concluded in a resolution (the Interpretation Resolution) that plaintiff was not entitled to apply for a conditional use variance under N.J.S.A. 40:55D-70(d)(3) and had to apply for a general use variance under N.J.S.A. 40:55D-70(d)(1).

B.

Plaintiff contends that its facility qualifies as a "Residential Healthcare Facility in Conjunction with a School" and argues that the trial court erred in upholding the Board's determination that the facility did not constitute a permitted conditional use. We disagree.

"Conditional uses do not exist in a municipality unless specifically authorized in the zoning ordinance." Cox & Koenig, New Jersey Zoning and Land Use Administration, § 25-1.1 (2016). N.J.S.A. 40:55D-67(a) of the MLUL authorizes a municipality to provide for a conditional use "according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent." "Conditional use clauses in a zoning ordinance must have clarity and specificity." Meszaros v. Planning Bd. of the City of S. Amboy, 371 N.J.Super. 134, 148 (App. Div. 2004). In the absence of the "definite specifications and standards" required by N.J.S.A. 40:55D-67(a), "the ordinance is `void' and therefore does not confer authority upon the board to approve a use of land thereunder." Jackson Holdings, LLC v. Jackson Twp. Planning Bd., 414 N.J.Super. 342, 349-50 (App. Div. 2010) (citing Meszaros, supra, 371 N.J. Super. at 149). The threshold issue is, therefore, to "determine whether the conditional use ordinance is valid before undertaking to review the board's decision." Id. at 350.

In this case, there were two steps to the Board's interpretation of the conditional use at issue. First, the Board's evaluation of the language of the conditional use following a hearing conducted pursuant to N.J.S.A. 40:55D-70(b) led it to conclude that the term "Residential Healthcare Facility in Conjunction with a School" was too vaguely defined and therefore void. The Board then endeavored to cobble together an interpretation of the conditional use that implemented the intent of the drafters and allowed it to determine whether plaintiff qualified as such a conditional use.

We agree with the trial judge that the Board exceeded its authority in declaring the term "Residential Healthcare Facility in Conjunction with a School" void for vagueness. This action trod upon the authority of the Borough to "adopt or amend a zoning ordinance." N.J.S.A. 40:55D-62(a); see also Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J.Super. 67, 78-79 (App. Div. 2006).

In determining the meaning of "Residential Healthcare Facility in Conjunction with a School" intended by the drafters, the Board employed standard methods to construe language undefined by the Ordinance. Testimony was taken to provide historical context and information regarding local considerations. The Board reviewed standard dictionary definitions, definitions contained in the Ordinance and, applying the doctrine of in pari materia, definitions used by DHSS.

The Board concluded the drafters did not intend that a "Special Hospital," which "requires intensive complex managed care by doctors," would fall within the definition of the low intensity use the DHSS defined in N.J.A.C. 8:43-1.3 for "Residential health care facility.," The Board also found that the drafters intended "School," the other component of the conditional use at issue, to be defined by Section 23-6.1 of the Ordinance, a primary and secondary school licensed by the New Jersey Board of Education. The Board concluded the facility cannot meet the Ordinance's definition of School because Matheny's "educational uses extend considerably beyond [that definition], including its adult education programs and teaching hospital programs, neither of which are licensed by the New Jersey Board of Education."

The Board's efforts comported with "[t]he established rules of statutory construction [that] govern the interpretation of a municipal ordinance." Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). When the language is clear and unambiguous, its meaning controls. Bergen Comm'l Bank v. Sisler, 157 N.J. 188, 202 (1999). "If the text, however, is susceptible to different interpretations," it is appropriate to consider "extrinsic factors, such as the statute's purpose, legislative history, and statutory context to ascertain the legislature's intent." Schad, supra, 160 N.J. at 170. The overarching objective is "to effectuate the `fundamental purpose for which the legislation was enacted.'" Ibid. (quoting N.J. Builders, Owners and Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)).

A municipality's informal interpretation of an ordinance is entitled to deference, Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 561 (App. Div. 2004), in recognition of "the board's knowledge of local circumstances," id. at 562. However, that deference is limited; "the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005).

We agree with the trial judge that the Board's interpretative process was sound. There is no evidence that the question whether the facility was a permitted conditional use was either raised or decided in any of the previous applications made by plaintiff between 1998 and 2008. And plaintiff does not claim that the Board's 2001 statement that the facility was generally considered a conditional use, was raised and actually "litigated" in that application. The Board was not therefore bound by prior actions in which it accepted the conclusion that the facility qualified as the conditional use, having never probed the basis for that conclusion. See Allied Realty, Ltd. v. Upper Saddle River, 221 N.J.Super. 407, 413-414 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988); Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for the Twp. of Chatham, 202 N.J.Super. 312, 325-27 (App. Div. 1985).

Plaintiff's argument that it satisfied the criteria for the conditional use is also unpersuasive. As noted, the Ordinance's requirements for this conditional use include the requirement that the site be located in the Borough sewer service area. Plaintiff conceded it "is not compliant with that condition." Thus, even if Matheny fell within the intended definition of "Residential Healthcare Facility in Conjunction with a School," its failure to comply with one of the specified requirements supports the determination that it does not properly fall within the permitted conditional use.

After giving due consideration to the Board's analysis and reasons, we agree with its conclusion that the facility did not qualify as a "Residential Healthcare Facility in Conjunction with a School." Accordingly, plaintiff was required to seek a use variance.

II.

Following the Board's decision regarding the conditional use, plaintiff amended its application to request a (d)(1) use variance, N.J.S.A. 40:55D-70(d)(1),6 seeking approval of its proposed expansion. The application sought approval of the preliminary and final major site plan for its proposed expansion. After conducting a hearing on forty-eight days over a three-year period, the Board adopted a resolution that denied the application. Plaintiff contends that the trial court erred in upholding the Board's denial of its application. We disagree.

A.

The MLUL authorizes the zoning board to grant a (d)(1) use variance "[i]n particular cases for special reasons ... to permit: (1) a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70(d). The statute further provides:

Therefore, to obtain a use variance, an applicant must prove positive criteria, that there are "special reasons" for granting the variance, Sica v. Bd. of Adjustment of the Twp. of Wall, 127 N.J. 152, 156 (1992), and negative criteria. It is undisputed that Matheny's use of the site is inherently beneficial and so, the positive criteria is presumed to be satisfied. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). The applicant retains an obligation to satisfy the negative criteria, i.e., "prove that the variance `can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Id. at 324 (quoting N.J.S.A. 40:55D-70).7 The board employs a balancing test:

Like the trial court, our review of a planning board's decision is limited. Id. at 327. Review of a decision to deny a variance because the applicant has failed to satisfy the negative criteria "begins with the recognition that the board's decision is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable." Sica, supra, 127 N.J. at 166-67; see also Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment, 423 N.J.Super. 282, 289-90 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). This presumption is rooted in our "recognition that such boards possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica, supra, 127 N.J. at 167; accord, Price v. Himeji, LLC, 214 N.J. 263, 284 (2013); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). The party who challenges the grant or denial of a variance must demonstrate the decision was arbitrary, capricious or unreasonable. Price, supra, 214 N.J. at 284. The burden is even greater in a challenge to the denial of a variance because "[w]e give even greater deference to a planning board's decision to deny a variance in preservation of a zoning plan than a decision to grant a variance." Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J.Super. 389, 433 (App. Div. 2009).

B.

The Board explicitly recognized and applied the Sica test. In upholding the Board's determination, the trial court tracked the Board's findings, reasoning and determinations in light of the Sica balancing test. The court acknowledged the use as inherently beneficial, satisfying the positive criteria. As to the second prong of the Sica test, all parties agreed that the detrimental effect at the core of the application was "the issue of traffic and safety on Highland Avenue," a road built as a "farm road over 100 years ago [that] was not designed to current standards." Still, the Board received conflicting testimony on the scope of the existing traffic and safety issues on Highland Avenue, the impact of the proposed expansion of the facility and the capacity of proposed conditions to alleviate such concerns.

Robert Rodgers, the Board's traffic consultant, described Highland Avenue as a substandard road that was "unforgiving." His characterization of the accident rate on the roadway was corroborated by statistics maintained by the Department of Transportation that showed the accident rate on Highland Avenue was over five times higher than the average statewide accident rate in 2009, an increase from the two prior years when it was almost twice the statewide rate.

In contrast, Kenneth Mackiewicz, plaintiff's traffic consultant, opined that the grades, curvatures and width of Highland Avenue were safe. It was his view that accidents on the road were due to inclement weather, animals or driver inattention, and not the result of traffic volume or attributable to plaintiff's activities, although he acknowledged that 70% of the traffic on Highland Avenue was attributable to Matheny. His description of Highland Avenue as a "minor collector" roadway conflicted with the fact that the required width for such a roadway was fifty feet, approximately twice the width of Highland Avenue, and the road's description in the Master Plan as a local road.

Steven Proctor, plaintiff's president and chief executive officer, testified regarding anticipated increases in student and employee population. According to Proctor, there were seventy students, consisting of twenty-one day students and forty-nine residential students, and the day student number could grow to about thirty after completion of the expansion. This projection was undermined by the testimony of Ronald Kennedy, plaintiff's engineer, and Phillip Dordai, plaintiff's architect. Kennedy testified that the proposed day student increase would double that population. Dordai testified that the maximum capacity of the school after the expansion would be 126 students.

Proctor stated there were 411 employees: 282 on the day shift, 86 on the evening shift, and 43 on the overnight shift. He projected that by the end of 2018, there would be 468 employees, with most of the increase on the day shift. Proctor's projections regarding the growth in employee population were vigorously challenged by Ruth Williams, a resident, who noted inconsistencies with prior statistics and the testimony of his predecessor in a 1998 proceeding. Williams also questioned the credibility of an assertion that a (40%) increase in patients would only require an (11%) increase in the number of employees in light of past staffing trends.

Although the facility was licensed for thirty slots of adult day health care services, Proctor stated the number of outpatients on average was 7.5 per day, with some days serving more than twice that number. Proctor's traffic projections did not include visitors to the site, medical students who came for training or any increase in outpatients.

The Board found Proctor was not a credible witness regarding the number of additional beds proposed, the number of employees working at the site, the increases in additional employees and students and his assertion that the outpatient population would remain stable. The Board "was unable to reconcile Mr. Proctor's testimony regarding projections of the number of new employees ... with the evidence it had been presented showing prior staffing trends."

The flaws in Proctor's testimony had an impact on the weight given to Mackiewicz's testimony. In making his traffic projections, Mackiewicz relied on plaintiff's estimate of the increase in employees that the Board did not find credible and an employee count of 376 that was even less than the number given by Proctor. As Rodgers testified, the imprecision in the projections regarding the total population that would be on-site during the work week made accurate traffic analysis difficult.

The trial court concluded that step two of Sica was satisfied by the Board's conclusion there was "clear and substantial evidence as to the detrimental impact [of the proposed expansion] on traffic safety along Highland Avenue." The court's conclusion is supported by the record, which includes ample support for the Board's determinations on the credibility of the witnesses presented.

The third step in the Sica balancing test required consideration whether the detrimental effect could be reduced by the imposition of reasonable conditions on the use. Sica, supra, 127 N.J. at 165-66. The Board acknowledged that plaintiff "submitted, modified and/or revoked a variety of conditions during the course of the hearings." The conditions were designed to mitigate traffic and safety issues. They included the use of remote parking; a plan to improve Highland Avenue and a private road Matheny used for emergency access; the clearing of vegetation to improve visibility; a traffic budget to limit traffic during peak periods; and the conveyance of a conservation easement over a portion of plaintiff's property. An initial willingness to accept caps on the number of patients and students served by plaintiff, subject to a reservation of the right to seek further developmental approvals, was later withdrawn.

The Board, its planner and its traffic expert all agreed that the proposed conditions would improve safety on Highland Avenue but would fail to eliminate the traffic hazards inherent to the road. The Board discussed its reasons for finding the proposed conditions ineffective at length, including the following:

In addition to finding the conditions ineffective, the Board found that, if implemented, the proposed improvements to Highland Avenue "would materially and adversely affect the rural character of the road, including the installation of up to 50 signs, extensive defoliation of trees and hedges and the installation of three sets of speed tables and crosswalks."

The trial court agreed with the Board's conclusion that no reasonable condition could be imposed that would mitigate the detrimental effect of the application. We agree that there was sufficient evidence to support the conclusions that the proposed conditions would materially and adversely affect the rural character of the road, contrary to the stated purpose of the RE Zone, and that the conditions did not adequately reduce the negative impact of the proposed expansion.

Addressing Sica's fourth step, the Board found that the traffic safety issues outlined in the variance hearing were "real and substantiated." Among other facts, it cited Rodgers's testimony that Highland Avenue was "an unforgiving roadway," and that the roadway was "not designed to current road engineering standards and ... is steep and winding" with sight distance issues and is as narrow as sixteen feet in some locations. In addition, the Board pointed to the fact that the road had no shoulders and that it was unlikely there was adequate room to install sidewalks. The Board also concluded the road had an accident rate far in excess of the statewide accident rate and had been increasing over the years.

The Board found assertions made by Proctor were not credible regarding the projected increases in the numbers of additional employees and students and the assertion that the outpatient population would remain unchanged. As a consequence, "the annual percentage growth in employees could not be accurately established in view of all the contradictory testimony and evidence, as to the past or the future, and that this was a significant factor to establish because of the compounding impact of annual employee growth." The Board also found Mackiewicz's traffic projections were not credible in light of their reliance upon Proctor's assessments and the inconsistencies between his testimony regarding the number of commercial vehicles using Highland Avenue and other evidence. These well-explained and supported credibility determinations led the Board to reject plaintiff's claim that the project would generate traffic increases of between one-and-a half and six percent.

The Board concluded there was "clear and substantial evidence as to the detrimental impacts" of the proposed expansion on traffic safety along Highland Avenue. The Board observed that the proposed expansion would add 49,069 square feet of buildings

Despite taking into account the proposed alternative conditions, the Board found plaintiff had failed to meet the criteria for a use variance "due to the substantial negative impact to the public good" and that "the detriments related to traffic safety greatly outweigh the public interest."8

Addressing this final step in the Sica analysis, the trial court distinguished cases in which the evidence revealed only a minimal impact on traffic and safety conditions, noting "the traffic issues presented in this matter are anything but de minimis" and that the evidence supported a finding that the increase in traffic "could be anywhere from 25% to 38%." The trial court agreed with the Board, finding "extensive testimony and evidence ... established that the traffic conditions on Highland Avenue are already unmanageable and dangerous and any further burden would be a major tipping point."

The trial court's factual findings regarding the inherent danger of the roadway and the scope of the negative impact are supported by the record. We further conclude that the trial court appropriately weighed the negative impact against the benefits of this use properly pursuant to Sica.

C.

Plaintiff argues on appeal that the trial court wrongfully accepted conclusions in the Resolution that were not supported by law or the record. Our review of the specific arguments raised reveals them to be a disagreement with the conclusions drawn by the Board and the trial court rather than a demonstration that any of the conclusions are arbitrary, capricious or unreasonable because they lack support in the record. For example, plaintiff notes the principle that any non-residential use is bound to have some adverse effect and then criticizes the trial court for failing to accept its position that the adverse effect that would be caused by the proposed expansion was not "substantial."

It was for the Board to "choose which witnesses, including expert witnesses, to believe" and, if its choice was "reasonably made," its determination is "binding on appeal." Board of Educ. of City of Clifton, surpa, 409 N.J. Super. at 434. The Board must explain the basis for its determination "particularly where the board rejects the testimony of facially reasonable witnesses" and "cannot rely upon unsubstantiated allegations [or] net opinions that are unsupported by any studies or data." Id. at 435.

The credibility determinations that formed the groundwork for the Board's conclusions were reasonably made based upon evidence in the record and explained convincingly. Therefore, those determinations are binding on appeal and were appropriately accepted by the trial court.

Plaintiff argues further that the trial court erred in giving "short shrift to conditions of approval" it suggested. This argument is presented in conclusory fashion, stating, "[a]ny detrimental effects would be lessened and certainly would not rise to the level of substantially detrimental." This argument fails to demonstrate that it was arbitrary, capricious or unreasonable for the Board and the trial court to conclude the proposed conditions did not sufficiently ameliorate the serious safety concerns.

Plaintiff also contends the trial court erred in balancing the application's positive aspects, which it characterized as "legion," and in "fail[ing] to look beyond the needs of simply those within the boundaries of the Borough to the needs of the disabled population that Matheny serves at large." We reject the argument that it was error to weigh the positive aspects against the impact the proposed expansion would have on neighboring properties.

N.J.S.A. 40:55D-70 prohibits the granting of a variance, even in the case of 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." Interpreting this language within the context of a conditional use variance, the Supreme Court stated the focus of the first prong of the negative criteria, "that the variance can be granted `without substantial detriment to the public good,' ... is on the effect on surrounding properties of the grant of the variance...." Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 299 (1994) (emphasis added) (quoting N.J.S.A. 40:55D-70). The Court stated this required the board of adjustment to evaluate the impact of the proposed 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.'" Ibid. (emphasis added) (quoting Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)); see also Salt & Light Co., supra, 423 N.J. Super. at 291-92 (affirming the Board's finding, despite an inherently beneficial use, that the placement of two two-bedroom residences for the homeless in a neighborhood of single family homes "would constitute a substantial detriment to the neighborhood"). Plaintiff's contention that the analysis employed by the Board and the trial court was improperly parochial therefore lacks merit.

In sum, plaintiff's challenges to the denial of its variance application and the trial court's affirmance of that decision fail to show that those decisions were arbitrary, capricious or unreasonable. Therefore, we affirm.

III.

In Point III, plaintiff argues the trial court erred in granting the Board summary judgment on its discrimination claims. Plaintiff contends it was not required to present objective evidence of discriminatory intent and that the trial court erred in concluding the failure to do so defeated its discrimination claims. Plaintiff also argues the trial court erred in finding it failed to dispute material facts, creating an issue that precluded summary judgment. Finally, plaintiff argues that the trial court erred by limiting its consideration of the discrimination claims to the Variance Resolution and not considering these claims as applied to the Board's interpretation of the conditional use in its Interpretation Resolution.

It is important to note that we review judgments, not the reasons set forth for the judgment. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). Therefore, "a correct result predicated upon an incorrect basis does not preclude an affirmance of that ruling." Velazquez v. Jiminez, 336 N.J.Super. 10, 43 (App. Div. 2000) (citing Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968)), aff'd, 172 N.J. 240 (2002). In reviewing the summary judgment decision, we view the evidence "in a light most favorable to the non-moving party," and determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law de novo and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

In its complaint, plaintiff alleges that its residents and outpatients are handicapped persons within the meaning of the FHAA and that the accommodation requested, "the building addition to house an additional 38 hospital beds and to provide a therapeutic gym and pool facility," was "necessary to afford handicapped persons the opportunity to use and enjoy an appropriate residence." Plaintiff further alleges the Board's interpretation of the Ordinance and denial of its variance constitutes unlawful discrimination for failure to make a reasonable accommodation under the FHAA. See 42 U.S.C.A. § 3604(f)(3)(B).

The FHAA provides that it is unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap...." 42 U.S.C.A. § 3604(f)(2). Discrimination is defined to include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C.A. § 3604(f)(3)(B) (emphasis added).

"[T]he plaintiff in an FHAA reasonable accommodations case must establish a nexus between the accommodations that he or she is requesting, and their necessity for providing handicapped individuals an `equal opportunity' to use and enjoy housing." Lapid-Laurel v. Zoning Bd. of Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 459 (3d Cir. 2002). Addressing the burdens of proof, the court stated, "under § 3604(f)(3)(B) the plaintiff bears the initial burden of showing that the requested accommodation is necessary to afford handicapped persons an equal opportunity to use and enjoy a dwelling, at which point the burden shifts to the defendant to show that the requested accommodation is unreasonable." Id. at 457.

It is important to note that the accommodation sought here was not for the initial construction of a facility to serve handicapped persons and there is no "blanket exclusion" of homes for the developmentally disabled in the Borough. Without the proposed expansion, the facility serves 102 developmentally disabled patients in a municipality of fewer than 2,500. As a result, the initial burden plaintiff was required to meet was similar to the one borne by the applicant in Lapid-Laurel. The court instructed that to satisfy the "necessity" requirement of § 3604(f)(3)(B), the applicant had to show that the size of the building proposed was required to provide the handicapped with the requisite equal opportunity. Id. at 461; see also Bryant Woods Inn, Inc. v. Howard Cty., 124 F.3d 597, 604 (4th Cir. 1997). This translated into a requirement that the applicant had "to show that the size of its proposed Facility is required to make it financially viable or medically effective." Lapid-Laurel, supra, 284 F.3d at 461.

Plaintiff argues, in part, that summary judgment was improvidently granted because defendants failed to prove that a variance could not have been granted without some undue burden.9 Plaintiff assumes without discussion that it met the initial burden of showing the accommodation it sought was "necessary." It argues that the trial court erred in stating plaintiff failed to show the existence of a genuine issue regarding the need for the expansion of its facility.

In support of that argument, plaintiff refers to its response to defendant's statement of material facts and supporting citations. The relevant statements of fact in that response state plaintiff presented testimony "that if its application were not approved, the above-referenced needs for the additional beds would go unmet," that "[t]he proposed modifications to the Facility are necessary to afford its current residents full enjoyment of the premises," and that "[t]he proposed modifications to the Facility are necessary to afford non-residents of the Facility the equal opportunity to use and enjoy the Facility." Even if fully supported by the citations to the record, none of these statements address the issue whether the size of the expansion was required to make the facility "financially viable or medically effective." Lapid-Laurel, supra, 284 F.3d at 461. Therefore, even affording plaintiff all reasonable inferences from the evidence, it failed to present a genuine issue that the size of the proposed expansion was necessary under § 3604(f)(3)(B).

Plaintiff's FHAA claim based upon the Board's interpretation of the conditional use fares no better. Plaintiff argues that the effect of the Interpretation Resolution was to prohibit Matheny's use in every zone in the Borough, amounting to a blanket exclusion of the use. This contention is directly contradicted by a finding by the trial judge: "Contrary to Plaintiff's arguments, the Board's resolution does not prevent Plaintiff's use from continuing nor does it prevent expansion in the future." Moreover, even if plaintiff's assessment were correct, the facility would be able to continue operation as a non-conforming use.

Under New Jersey's LAD, it is unlawful discrimination for a municipality "to exercise the power to regulate land use or housing in a manner that discriminates on the basis of ... disability." N.J.S.A. 10:5-12.5(a). Like the FHAA, the LAD applies a shifting burden approach. Once the plaintiff shows "the requested accommodation is ... necessary to afford ... an equal opportunity to use and enjoy a dwelling," the burden shifts to the defendant to show the requested accommodation is unreasonable. Oras v. Hous. Auth. of City of Bayonne, 373 N.J.Super. 302, 312 (App. Div. 2004). Ibid. Although no New Jersey cases establish the proofs necessary for the plaintiff to make the requisite showing of necessity under the LAD, federal precedent provides guidance in interpreting claims of discrimination by the handicapped under the LAD. Borngesser v. Jersey Shore Med. Ctr., 340 N.J.Super. 369, 380 (App. Div. 2001). Therefore, plaintiff's claim under the LAD fails for the same reason as its FHAA claims failed.

Affirmed.