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Price v. Hernandez

Superior Court of New Jersey, Appellate Division

November 7, 2013

LARRY PRICE, Plaintiff-Appellant,
v.
MARIA HERNANDEZ and UNION CITY ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 12, 2013

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).

Before Judges Yannotti and Hayden.

OPINION

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 ...


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