VINCENT PISCITELLI VS. CITY OF GARFIELD ZONING Â BOARD OF ADJUSTMENT(L-20013-14, BERGEN COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2616-15T3
    
    VINCENT PISCITELLI and ROSE
    MARY PISCITELLI,
    
            Plaintiffs-Appellants,
    
    v.
    
    CITY OF GARFIELD ZONING BOARD
    OF ADJUSTMENT; ARLENE PATIRE;
    ROBERT COCHRANE; DSJ FAMILY
    TRUST; DANIEL P. CONTE, III,
    STACEY A. CONTE and JAMIE G.
    KRESHPANE, Trustees of the DSJ
    Family Trust; and DR. DANIEL P.
    CONTE, JR.,
    
         Defendants-Respondents.
    ___________________________________
    
                  Argued May 23, 2017 – Decided July 12, 2017
    
                  Before Judges Reisner, Koblitz and Mayer.
    
                  On appeal from the Superior Court of New
                  Jersey, Law Division, Bergen County, Docket
                  No. L-20013-14.
    
                  Anthony J.      Sposaro     argued    the   cause    for
                  appellants.
    
                  Alyssa A. Cimino argued the cause for
                  respondents City of Garfield Zoning Board of
                  Adjustment, Arlene Patire and Robert Cochrane
                  (Cimino Law, attorneys; Ms. Cimino, on the
                  brief).
                Charles H. Sarlo argued the cause for
                respondents DSJ Family Trust; Daniel P. Conte,
                III, Stacey A. Conte, Jamie G. Kreshpane, and
                Dr. Daniel P. Conte, Jr.
    
    PER CURIAM
    
        Plaintiffs Vincent Piscitelli and Rose Mary Piscitelli appeal
    
    from a February 4, 2016 order dismissing their complaint in lieu
    
    of prerogative writs, challenging a resolution by the Garfield
    
    Zoning Board of Adjustment (zoning board) granting a land use
    
    application filed by defendant DSJ Family Trust.
    
        On this appeal, plaintiffs present the following points of
    
    argument:
    
                POINT I
    
                THE APPROVAL OF THIS SITE PLAN, TOGETHER WITH
                FOUR USE VARIANCES AND SEVERAL BULK VARIANCES
                WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE
    
                POINT II
    
                THE RESOLUTION ADOPTED BY THE BOARD LACKS THE
                NECESSARY SPECIFIC FINDINGS NECESSARY TO
                JUSTIFY GRANTING VARIANCE RELIEF
    
                POINT III
    
                FIVE BOARD MEMBERS WHO WERE EMPLOYED BY THE
                GARFIELD BOARD OF EDUCATION OR WHOSE IMMEDIATE
                FAMILY MEMBERS WERE EMPLOYED BY THE BOARD OF
                EDUCATION WERE DISQUALIFIED FROM HEARING THIS
                APPLICATION RENDERING THE ACTIONS OF THE BOARD
                NULL AND VOID
    
    
    
    
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              POINT IV
    
              THE   EXISTENCE   OF    A   PHYSICIAN-PATIENT
              RELATIONSHIP BETWEEN A PHYSICIAN-APPLICANT
              AND BOARD MEMBER OR THEIR IMMEDIATE FAMILY
              MEMBER CAN CREATE A CONFLICT OF INTEREST
              REQUIRING DISQUALIFICATION; THE HIPPA PRIVACY
              RULES DO NOT PREVENT DISCLOSURE OF THAT
              RELATIONSHIP BY THE PATIENT
    
              POINT V
    
              BOARD MEMBER COCHRANE HAS A CONFLICT OF
              INTEREST; HIS PARTICIPATION IN THE HEARING
              PROCESS RENDERS THE BOARD'S DECISION NULL AND
              VOID
    
              POINT VI
    
              THE REFUSAL TO PERMIT CROSS-EXAMINATION OF
              THIRTY-ONE MEMBERS OF THE PUBLIC WHO TESTIFIED
              BY THE OBJECTOR'S COUNSEL VIOLATES DUE PROCESS
              RENDERING THE BOARD'S ACTIONS NULL AND VOID
    
         Those arguments were previously presented to the trial court
    
    and were rejected by Judge William C. Meehan in an oral opinion
    
    issued on July 7, 2015, and a comprehensive written opinion dated
    
    January 11, 2016.     We have reviewed the record, including the
    
    transcripts of the zoning board hearings and the proceedings before
    
    Judge Meehan.   Based on that review, we affirm substantially for
    
    the reasons stated in Judge Meehan's oral and written opinions.
    
    We also conclude that plaintiffs' appellate arguments are without
    
    sufficient   merit   to   warrant   further   discussion   beyond   the
    
    following brief comments.    See R. 2:11-3(e)(1)(E).
    
    
    
                                        3                          A-2616-15T3
         The application concerns an unsightly, partially abandoned
    
    commercial development located partly in a residential zone and
    
    partly in the B-2 business zone.      The record suggests that the
    
    zoning was outdated.    The property had always been the site of
    
    commercial, automotive-related uses, and the residential-zoned lot
    
    had never been used for residential purposes.      At the time of the
    
    hearings, the site contained an auto repair shop and former gas
    
    station, from which the gas pumps had been removed, a small unused
    
    office building, an abandoned loading dock and warehouse formerly
    
    occupied by a trucking company, and a parking lot used to store
    
    trucks.
    
         Based on expert testimony it found credible, the zoning board
    
    granted variances permitting the applicant to build three related
    
    commercial uses on the property - a car wash, gas station, and
    
    quick lube.    We find no basis to second-guess the board's factual
    
    findings and credibility determinations, and based on its findings
    
    the board's decision was not arbitrary and capricious.       See Kramer
    
    v. Bd. of Adjustment, Sea Girt, 
    45 N.J. 268
    , 296 (1965).       We agree
    
    with Judge Meehan that the zoning board's resolution was sufficient
    
    to support its factual and legal determinations.           See Price v.
    
    Himeji, LLC, 
    214 N.J. 263
    , 301-02 (2013).
    
         We likewise defer to Judge Meehan's findings of fact and
    
    credibility   determinations   concerning   an   alleged   conflict    of
    
                                      4                             A-2616-15T3
    interest on the part of board member Cochrane.                  See Rova Farms
    
    Resort, Inc. v. Inv'rs Ins. Co., 
    65 N.J. 474
    , 483-84 (1974). After
    
    holding   a   testimonial    hearing,       Judge      Meehan   concluded     that
    
    Cochrane was a credible witness, and the allegations supporting
    
    the alleged conflict were not true.
    
          The judge also rejected conflict allegations against other
    
    zoning board members who worked for the local board of education
    
    (BOE) or whose relatives worked there.                  The allegations arose
    
    because Dr. Ken Conte, a member of the BOE, had previously been a
    
    part owner of two of the lots, through an individual trust in his
    
    name.   However,   prior    to   the   filing     of   the   current   land    use
    
    application, the property was sold to defendant DSJ Family Trust
    
    (DSJ), a separate trust over which Dr. Conte has no control.1                  His
    
    adult nieces and nephew are the beneficiaries and trustees of DSJ.
    
          We agree with Judge Meehan that the zoning board members were
    
    not   disqualified   from    voting    on   the     application.   Plaintiffs'
    
    reliance on Sokolinski v. Municipal Council of Woodbridge, 
    192 N.J. Super. 101
    , 103 (App. Div. 1983), is misplaced, because the
    
    BOE was not the applicant, and the application did not concern BOE
    
    property or property owned by a BOE official.                    Moreover, the
    
    connection between DSJ and the BOE was too attenuated to support
    
    
    1
      DSJ paid $420,500 for the property.             There is no evidence that
    the price was not fair market value.
    
                                           5                                A-2616-15T3
    a finding of a conflict of interest on the part of the zoning
    
    board members.   See Van Itallie v. Franklin Lakes, 
    28 N.J. 258
    ,
    
    269 (1958).
    
        Affirmed.
    
    
    
    
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