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

NOT FOR PUBLICATION WITHOUT THE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
2 A-2616-15T3
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.
6 A-2616-15T3