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

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 

NOT FOR PUBLICATION WITHOUT THE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.

June 19, 2017
2 A-3833-15T3

 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 
3 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 
4 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 
5 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 
6 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 
7 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).] 
8 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, 
9 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.