                        NOT FOR PUBLICATION WITHOUT THE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

                                     2                            A-3833-15T3
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

                                               3                                  A-3833-15T3
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

                                      4                              A-3833-15T3
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

                                             5                                    A-3833-15T3
              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

                                     6                               A-3833-15T3
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).]


                      7                          A-3833-15T3
     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,


                                           8                                 A-3833-15T3
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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