JOSEPHINE BELL v. RENT LEVELING BOARD OF THE TOWN OF MORRISTOWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2021-08T12021-08T1

JOSEPHINE BELL,

Plaintiff-Appellant,

v.

RENT LEVELING BOARD OF THE

TOWN OF MORRISTOWN, ANTONIETTA

MILELLI, ESQ., and MARIO

MILELLI, Landlords,

Defendants-Respondents,

and

RONALD H. GORDON, ESQ., Board

Attorney,

Defendant.

________________________________________________________________

 

Submitted May 18, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Morris County,

Docket No. L-3373-07.

Josephine Bell, appellant pro se.

DeCotiis, FitzPatrick, Cole & Wisler, LLP,

attorneys for respondent Rent Leveling

Board of the Town of Morristown (Ronald

H. Gordon, on the brief).

Respondents Antonietta Milelli and

Mario Milelli have not filed a brief.

PER CURIAM

Plaintiff Josephine Bell appeals from an order of the Law Division entering judgment in favor of defendant Rent Leveling Board of Morristown (the Board) and dismissing plaintiff's complaint in lieu of prerogative writs. In her action, plaintiff sought to overturn the decision of the Board fixing the rent for plaintiff's rental residence. We affirm.

These are the facts adduced from the record. Plaintiff has been a tenant in the apartment, which is owned by defendant landlords Antoinetta Milelli and Mario Milelli (the landlords). In Fall 1995, plaintiff sought a hearing before Wayne W. Cresta, the manager of the Division of Rent Leveling (the Manager) to dispute the proposed imposition of a new rental amount for the apartment. The new base rental was to be $1,213.26. A hearing was held, which ultimately resulted in a reduction of the monthly rent payments by $93.80. This reduction was prompted by the improper inclusion by the landlords of heating costs. The reduced base rent was established at $1,021.31. Both plaintiff and the landlords appealed to the Board.

The Board held a hearing to address the propriety and calculation of the heat factor as well as to consider whether, at plaintiff's request, it had the power to recalculate the amount of back rent to 1989 as well as an issue raised by the landlords - whether they had the right to continue to include and add on the reserved rents that had been voided by the Manager. As to the latter two issues, after advice by counsel, the Board determined that it did not have authority to review base rents back to 1989. This was premised, in part, by the fact that plaintiff had commenced her tenancy in 1995, and she could not challenge rents prior to her tenancy. Further the Board concluded that it only had authority under Section 14-13.1 of its Rent Control Ordinances to consider excess rents for a period of 25 months prior to the filing of a complaint against the landlord, here November 2, 2005. As a result, the Board could not consider overages prior to October 2003.

Following an extensive hearing at which time the Board considered a number of options presented by the Manager, the Board determined that the landlord was not entitled to reserved rent, and the tenant was not entitled to a heating deduction. The Board then fixed the rent for 2007 at $1,171.76. In reaching this figure, the Board fixed the 2003 base rent at $1,009.46 and then increased the rental by a factor ranging from 103.1% in 2004 to 104.7% in 2007 and arrived at the permissible rent.

In reference to the heat, the Board concluded that the cost of the heating was not included in the rent, plaintiff had been paying for her own heat for a number of years and the responsibility for such cost was hers rather than the landlord. The Board then adopted a memorializing resolution and plaintiff filed her complaint in the Law Division.

In affirming the Board's determination, Assignment Judge Bozonelis reviewed the relevant facts and concluded:

The board followed the Morristown code section, which I believe is under Title 14 in that respect. Made its calculations, determined that they could go back to the 25 months to make a readjustment in that respect. And this Court does not find that their decision was arbitrary or capricious. They certainly had a basis to say reserve rents should be readjust and not allowed and readjusted because the five years had expired. And secondly, that Ms. Bell was paying the heat and that the heat shouldn't have been deducted as a credit in that regard, and to penalize the landlord.

The judge entered judgment dismissing the complaint. This appeal followed.

Although we are reviewing a judgment of the Law Division, we must focus on the decision of the Board and apply a standard of review consistent with our review of any agency decision. Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling will not be disturbed. In re Carter, 191 N.J. 474, 482 (2007); In re Martinez, 403 N.J. Super. 58, 75 (App. Div. 2008).

Our standard of review of agency determinations is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to such decisions, unless it is arbitrary, capricious or unsupported by substantial credible evidence in the record as a whole. Carter, supra, 191 N.J. at 482; In re Distrib. of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Brady, supra, 152 N.J. at 210-11; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); In re S.D., 399 N.J. Super. 107, 121 (App. Div. 2008); In re Boardwalk Regency Corp. and DiBartolomeo, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency, such as the [Board], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Only when the agency's findings are clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction'" should we "'make [our] own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Our review of the record of the Board's proceedings as well the analysis engaged in by Judge Bozonelis leads us to conclude that the decision was correct. The Board carefully analyzed plaintiff's position and concluded that she was not entitled to a heating credit nor was she entitled to challenge rents back to 1989. We conclude that the Board's actions were not arbitrary, capricious or unreasonable and were supported by the record. We affirm substantially for the reasons set forth by Judge Bozonelis in his thoughtful oral opinion of October 3, 2008.

 
Affirmed.

The difference in base rents is not $93.80 because of other increases that are not relevant to this appeal.

Section 14-3(b) of the Code of the Town of Morristown, "reserved rents," permits a landlord to, in effect, defer rental increases in a given year; however, there is a five year period in which the reserved rents must be acted upon. The Board concluded that the time for the landlords' utilization of the reserved rents had expired and denied relief. The landlords did not appeal, and we need not discuss the issue further.

(continued)

(continued)

7

A-2021-08T1

July 12, 2010