NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3833-15T3
RAQUEL CALVO,
Plaintiff-Appellant,
v.
WEST NEW YORK PLANNING BOARD
and YOVANY GRANA,
Defendants-Respondents.
Argued May 17, 2017 - Decided June 19, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-003317-15.
Brian M. Chewcaskie argued the cause for
appellant (Gittleman, Muhlstock & Chewcaskie,
LLP, attorneys; Mr. Chewcaskie, of counsel and
on the briefs).
Robert A. Ferraro argued the cause for
respondent West New York Planning Board (Bruno
& Ferraro, attorneys; John W. Ferraro, on the
brief).
Adolfo L. Lopez argued the cause for
respondent Yovany Grana (Ledesma, Diaz, Lopez
& Noris, P.C., attorneys; Mr. Lopez, on the
brief).
PER CURIAM
Plaintiff Raquel Calvo brought this prerogative writ action
challenging the decision of defendant West New York Planning Board
(Board) that approved defendant Yovany Grana's application for a
daycare center and one residential unit at 610 61st Street in West
New York (the property). In its March 24, 2016 order, the trial
court remanded the matter to the Board to conduct a new hearing
on notice to residents within 200 feet of an adjacent church
parking lot (the church property) that was an integral part of the
application. However, the court rejected plaintiff's
jurisdictional and other challenges to the Board's approval, which
determinations plaintiff now appeals. We affirm, substantially
for the reasons set forth by Judge Daniel D'Alessandro in his
thorough written opinion.
The parties are fully familiar with the procedural history
and facts of this case and, therefore, a brief summary will
suffice. The property is located in West New York's R-M Medium
Density Residential District. One and two family dwellings are
permitted uses in the R-M District, while daycare centers are
permitted as a conditional use.
On August 27, 2014, Grana applied to the Board seeking
conditional use approval for a daycare center, along with one
residential unit on the property. Grana proposed to convert the
ground floor and first floor of the existing two family home into
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a daycare center, with the second floor to remain a residential
unit. The application called for the conversion of the existing
garage into the entrance and office for the daycare center, and
installation of a staircase in the rear of the property to provide
a secondary means of egress. The property borders a church parking
lot, and Grana entered into a five-year lease with the church to
use the parking lot as a "staging" area where children attending
the daycare center could be dropped off and picked up at the
beginning and end of the day.
The Board conducted a public hearing on the application on
April 13, 2015, at which Grana and her architect/planner testified.
At the conclusion of the hearing, the Board voted unanimously to
approve the application. The Board adopted a memorializing
resolution on June 8, 2015, in which it found that the daycare
center was an inherently beneficial use and its approval was not
detrimental to the health, safety and welfare of the residents or
to the zone plan or master plan. The Board noted that many of the
parents who use the daycare center, and its employees, will either
walk or take mass transit there. Consequently, the Board
determined that "the application will not create traffic
congestion in the area and will not interfere with [the]
surrounding neighborhood." The Board's approval was subject to
Grana's continued ability to use the church property as a drop off
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and pick up area, with Grana to provide access to the church
property through a gate in the wall that separates the two
properties.
Plaintiff operates a nearby daycare center. On August 5,
2015, she filed a seven-count complaint alleging that the Board's
decision was arbitrary, capricious and unreasonable; the Board
lacked jurisdiction to hear the application; the Board lacked
jurisdiction as a use variance was required; Grana failed to
present the proofs necessary to support the required variance
relief; the church property should have been included as part of
the development and application; Grana's public notice did not
reference the church property or include properties within 200
feet of the church property; and all plans reviewed and relied on
by the Board were not submitted ten days prior to the hearing.
Judge D'Alesandro reviewed the record before the Board and
the written submissions of the parties, and heard the oral argument
of counsel. The judge issued a comprehensive twenty-four-page
written decision on March 21, 2016, in which he agreed with
plaintiff's argument that the church property was "an integral
part of the [a]pplication" and public notice therefore should have
been given to property owners within 200 feet of both Grana's
property and the church property. See N.J.S.A. 40:55D-12(b).
Accordingly, the judge remanded the matter to the Board to conduct
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a new hearing following notice to property owners within the
expanded radius. In all other respects, the judge rejected
plaintiff's challenge to the June 8, 2015 resolution. The judge
entered a memorializing order three days later.
In this appeal, plaintiff renews her arguments that: the
Board's action was arbitrary, capricious and unreasonable; the
Board lacked jurisdiction to grant the conditional use
application; the Board's approval must be reversed because Grana
failed to submit the lease ten days before the public hearing; and
Grana's proofs did not support any variance relief.
The applicable standard of review is well-established.
"Judicial review of the decision of a Planning Board or Board of
Adjustment ordinarily is limited. A board's decision 'is
presumptively valid, and is reversible only if arbitrary,
capricious, and unreasonable.'" New Brunswick Cellular Tel. Co.
v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14
(1999) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn
Bd. of Adjustment, 152 N.J. 309, 327 (1998)). The party
challenging a municipal board's decision bears the burden of
overcoming the presumption of validity and demonstrating the
unreasonableness of the board's action. Toll Bros., Inc. v. Bd.
of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008).
The reason for this standard is that
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public bodies, because of their peculiar
knowledge of local conditions, must be allowed
wide latitude in their delegated discretion.
The proper scope of judicial review is not to
suggest a decision that may be better than the
one made by the board, but to determine
whether the board could reasonably have
reached its decision on the record.
[Jock v. Zoning Bd. of Adjustment of Wall, 184
N.J. 562, 597 (2005) (citations omitted).]
On appeal, we review the Board's action using the same
standard as the trial court. Fallone Props., L.L.C. v. Bethlehem
Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). The
deferential standard of judicial review, however, does not apply
to purely legal questions affecting a municipal board's decision.
The court must determine for itself whether the law has been
applied correctly. See Wyzykowski v. Rizas, 132 N.J. 509, 518
(1993); Urban v. Planning Bd. of Manasquan, 238 N.J. Super. 105,
111 (App. Div.), certif. granted, 121 N.J. 664 (1990), and
modified, 124 N.J. 651 (1991).
Our Supreme Court recently clarified the distinction between
a use variance, a conditional use, and a conditional use variance,
as follows:
An application for a use variance, also
referred to as a (d)(1) variance, N.J.S.A.
40:55D-70(d)(1), seeks permission from a
zoning board to put property to a use that is
otherwise prohibited by the zoning ordinance.
Both the positive and negative criteria in
such an application are tested in accordance
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with the standards first established in Medici
[v. BPR Co., 107 N.J. 1 (1987)]. In contrast,
a conditional use, by definition, is a use
that the zoning ordinance permits if the
applicant meets all of the conditions that are
embodied in the ordinance. See N.J.S.A.
40:55D-70(d)(3). In that case, the use
becomes a permitted use in the sense that no
variance is required.
However, if a property owner seeking to
devote the property to a conditional use
cannot meet one or more of the conditions
imposed by the zoning ordinance, the property
owner must apply for a (d)(3) conditional use
variance. The inability to comply with one
or more of the conditions does not convert the
use into a prohibited one and, thus, the
application is not tested in accordance with
the standards established in Medici that
govern applications for a (d)(1) use variance.
Instead, the question is whether, in
light of the failure to meet one of the
conditions fixed by the zoning ordinance, the
use "is reconcilable with the municipality's
legislative determination that the condition
should be imposed on all conditional uses in
that zoning district." Coventry Square [Inc.
v. Westwood Zoning Bd. of Adjustment, 138 N.J.
285, 299 (1994)]. In undertaking that
analysis, the weighing is entirely different
from that demanded for a (d)(1) use variance
because the governing body has not declared
that the use is prohibited but, instead, has
elected to permit the use in accordance with
certain expressed conditions. Accordingly,
the focus of the analysis is on the effect of
non-compliance with one of the conditions as
it relates to the overall zone plan.
[TSI E. Brunswick, LLC v. Zoning Bd. of
Adjustment of Twp. of E. Brunswick, 215 N.J.
26, 42-43 (2013).]
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In his written opinion, Judge D'Alessandro squarely addressed
the issues raised by plaintiff in light of the applicable legal
principles. Here, the proposed daycare center is a permitted
conditional use in the R-M District. In resolving the
jurisdictional issue, the judge noted that a conditional use is
defined as:
a use permitted in a particular zoning
district only upon a showing that such use in
a specified location will comply with the
conditions and standards for the location or
operation of such use as contained in the
zoning ordinance, and upon the issuance of an
authorization therefor by the planning board.
[N.J.S.A. 40:55D-3 (emphasis added).]
The judge also aptly cited West New York Ordinance § 414-64.A,
which provides:
The Planning Board shall have the power to
grant conditional uses on a case-by-case basis
after making findings that each such
conditional use, although not permitted by
right, would be appropriate or inappropriate
in the requested location.
[(Emphasis added).]
Contrary to plaintiff's argument, the Town ordinance provides
the standards by which the Board must review a conditional use.
Specifically, Ordinance § 414.64.B requires that the Board
"consider the compatibility of land uses, the impact of the
conditional use on the physical, social and aesthetic environment,
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traffic generation, and compatibility with the Town's Master Plan
and any other relevant factors." In the present case, the Board
considered these standards, and determined they were met.
The judge found the application satisfied the Town's parking
requirements and that no variances were necessary for either the
daycare or residential uses of the property. Further, the judge
concluded the Board's decision was supported by adequate evidence.
Having reviewed the record, we are satisfied we need not add to
Judge D'Alessandro's thoughtful analysis of the issues presented.
Thus, we affirm substantially for the reasons set forth in the
judge's opinion.
Affirmed.
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