LARRY PRICE v. MARIA HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3531-11T2

LARRY PRICE,

Plaintiff-Appellant,

v.

MARIA HERNANDEZ and UNION CITY

ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents.

_________________________________________

November 7, 2013

Argued February 12, 2013 - Decided

Before Judges Yannotti and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3951-11.

Larry Price, appellant pro se.

Maurice Giro argued the cause for respondent Maria Hernandez (Giro, L.L.P., attorneys; Mr. Giro, on the brief).

James M. LaBianca argued the cause for respondent Union City Zoning Board of Adjustment (De Yoe, Heissenbuttel & Buglione, L.L.C., attorneys; Mr. LaBianca, on the brief).

The opinion of the court was delivered by

MARGARET M. HAYDEN, J.A.D.

Plaintiff Larry Price (Price) filed a complaint in the Law Division challenging a decision of defendant Union City Zoning Board of Adjustment (the Board) to grant certain variances to defendant Maria Hernandez (Hernandez or the applicant). Price appeals from a February 15, 2012 order dismissing his complaint with prejudice. We affirm.

Hernandez is the owner of the premises known as 200 40th Street in Union City. The property is located in the City's R-mixed zone, which permits one- to four-family housing. The property had one commercial unit on the ground floor and four residential units on the two top floors. The applicant desired to renovate the basement to create a two bedroom apartment.

Hernandez filed an application on July 27, 2010, pursuant to N.J.S.A. 40:55D-70(d) of the Municipal Land Use Law (MLUL), seeking variances and Board approval to bring the premises in compliance with the zoning laws. The Board held several hearings on the application. The applicant's two experts, Carola Rosas, a licensed architect, and John McDonough, a licensed professional planner, testified before the Board, stating that the proposal met the requirements for a prohibited use variance. Price appeared to oppose the application, but did not present his own expert.

After considering the evidence presented, the Board unanimously approved the application. In a written resolution, dated June 9, 2011, the Board found that the applicant had satisfied the positive and negative criteria for the issuance of the requested variances. The Board found that the legalization of the additional residential unit would be in the public interest, the project would not conflict with the character of the neighborhood or the master plan, the current non-conforming conditions in the building had existed for over forty years, and the building was compatible with the surrounding buildings in the neighborhood.

Thereafter, Price filed a complaint in the Law Division against the Board and Hernandez. Price contended that the applicant had not satisfied the positive and negative criteria requirements for a use variance and thus the Board's decision was arbitrary, capricious, and unreasonable.

Hernandez was in the Dominican Republic from August 3, until September 23, 2011, and WAS unable to return due to a stolen passport. During this time the complaint was served at her home and left with either her fourteen-year-old daughter or a person who did not reside at the home. A default was entered on October 21, 2011. When Hernandez returned to New Jersey, she engaged an attorney, who moved to vacate the default.

At the January 20, 2011 hearing on the motion to vacate the default, the judge vacated the order. The judge determined that Hernandez had shown excusable neglect as the service was "questionable" the applicant was out of the country unable to return, and she retained an attorney when she returned.

After oral argument on Price's complaint on January 27, 2012, the judge concluded that there was sufficient credible evidence in the record to support the Board's decision to grant the variances. The judge entered an order on February 15, 2012, dismissing the complaint with prejudice. This appeal followed.

Price argues that (1) there was no basis for vacating the default; (2) the applicant did not prove special reasons for a (d)(1) use variance; (3) the applicant did not show an enhanced quality of proof; (4) the applicant did not provide separate special reasons for the (d)(5) density variance; and (5) the variances granted substantially impair the zoning ordinance.

We are satisfied from our review of the record that these arguments do not warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm the order vacating the default on January 20, 2012, for the reasons the judge stated on the record and affirm the order dismissing the complaint with prejudice substantially for the reasons stated by the judge in her written decision on February 15, 2012. We add the following.

A default may be entered against a defendant who has failed to serve an answer within thirty-five days of service of the summons and complaint. R. 4:6-1(a); R. 4:43-1; Gladstone v. Berk, 233 N.J. Super. 228, 241 (App. Div. 1989), certif. denied, 117 N.J. 166 (1989). A party may move to vacate an entry of default, which the court may set aside for good cause. R. 4:43-3. A motion to vacate an entry of default should be granted liberally. N.J. Mfrs. Ins. Co. v. Prestige Health Grp., 406 N.J. Super. 354, 360 (App. Div.), certif. denied, 199 N.J. 543 (2009); O'Connor v. Altus, 67 N.J. 106, 129 (1975) (noting that determining good cause requires the exercise of sound discretion in light of the facts and circumstances of the particular case). From our review of the record we discern no abuse of discretion in the judge vacating the default as the record supports her finding of excusable neglect.

In reviewing a zoning board's decision, we are bound by the same standard as the trial court. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007). Decisions of zoning boards to grant or deny applications constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997), and they are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Zoning boards "'must be allowed wide latitude in the exercise of [their] delegated discretion'" because of their special knowledge of local conditions. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 184 N.J. 562, 597 (1965)); see also Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005).

A municipal board's fact-finding should control if supported by substantial evidence in the record, but a court of law is not bound by the board's determination on legal matters. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Grubbs, supra, 389 N.J. Super. at 383. Nevertheless, due to its thorough familiarity with local conditions and the community's characteristics, courts usually accord deference to a board's interpretation of its zoning ordinance. Grubbs, supra, 389 N.J. Super. at 383.

For this reason, a board's decision will only be set aside if it is "'arbitrary, capricious, or unreasonable.'" Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009) (quoting Cell S. of N.J., supra, 172 N.J. at 81), certif. denied, 202 N.J. 347 (2010). The burden to prove arbitrary and capricious action is always on the plaintiff. Cell S. of N.J., supra, 172 N.J. at 81. We owe less deference, however, to the grant of a variance than its denial. See Medici v. BPR Co., 107 N.J. 1, 21-22 (1987).

Price contends that Hernandez did not justify the issuance of the use variances. We do not agree. To obtain a use variance, an applicant must satisfy the so called positive and negative criteria under the statute. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75-76 (App. Div. 2006).

With respect to the positive criteria, where, as here, the desired use is not inherently beneficial to the public good, the applicant must show "special reasons" why the variance should be granted. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 386 (1990). In particular, the applicant must show that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967); see also Medici, supra, 107 N.J. at 18.

Contrary to Price's argument, an applicant need not show that there is no other viable location in the zone where an additional apartment could be built. Rather, as our Supreme Court recently explained, the appropriate inquiry is "whether the property is particularly suited for the proposed site, in the sense that it is especially well-suited for the use, in spite of the fact that the use is not permitted in the zone." Himeji, supra, 214 N.J. at 293.

Additionally, with respect to the negative criteria, the focus is site specific and requires an assessment of the proposed variance's impact on the surrounding properties and consideration of whether it will cause "damage to the character of the neighborhood[.]" Medici, supra, 107 N.J. at 22 n.12 (citing Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963)). The potential benefits must preponderate over that damage in order to weigh against the proposed variance. See Yahnel, supra, 79 N.J. Super. at 519.

Further, applicants seeking a use variance must offer "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. Such enhanced proof "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

We are convinced there was sufficient credible evidence in the record for the Board's finding that the applicant had satisfied the criteria for issuance of variances under N.J.S.A. 40:55D-70(d). The record supports the Board's finding that the applicant met the positive criteria for issuance of the variance. The applicant established special reasons for the variance, showing that the property is particularly suited for the proposed use. The record also supports the Board's determination that the applicant established the negative criteria and also presented an enhanced quality of proof showing that the variances sought were not inconsistent with the intent or purpose of the zoning plan and ordinance.

The proposed additional unit will meet the need expressed in the master plan for additional housing in the creative way needed in this densely settled urban city. The building has some parking, its exterior will not be altered, and it is located on a corner lot near mass transportation. Additionally, the building and the one additional unit fit in well with the current appearance of the other multi-family buildings in the neighborhood. As the Board noted in its resolution, "the project will not conflict with the character of the neighborhood or with the master plan of the City." We agree with the trial judge that the expert testimony supported the Board's findings and its resolution.

We have considered Price's other contentions and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(2)(1)(E).

Affirmed.