Opinion
DOCKET NO. A-1226-12T3
06-23-2014
JERSEY COOPERAGE CO., Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF SAYREVILLE, Defendant-Appellant.
Lawrence B. Sachs argued the cause for appellant. Anthony B. Vignuolo argued the cause for respondent (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys; Mr. Vignuolo and Anthony T. Betta, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Guadagno and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-83-11.
Lawrence B. Sachs argued the cause for appellant.
Anthony B. Vignuolo argued the cause for respondent (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys; Mr. Vignuolo and Anthony T. Betta, on the brief). PER CURIAM
Defendant, the Zoning Board of Adjustment of the Borough of Sayreville (Board), appeals from a final decision of the Law Division finding that plaintiff, Jersey Cooperage Co., had not exceeded the scope of its use variance and that the Board acted arbitrarily in ruling otherwise. We affirm.
The property at issue is located in an area of Sayreville rezoned in 1999 as residential. It has been used for the refurbishment and storage of drums for over fifty years. In 1970, plaintiff's predecessor-in-interest obtained a use variance from the Board, on the condition that drum storage on the property be confined to the rear of the existing building and not exceed twenty-five percent of the land area.
Plaintiff purchased the land in 1972 and continued to use it for drum refurbishment and storage. Over time, instead of storing the drums on the ground, plaintiff began to store the drums in trailers installed on the site, some essentially becoming permanent installations. The number of trailers has also increased as plaintiff has shifted from storing drums on the open ground to storing them in trailers. Because some of the trailers are used to move drums during the refurbishing process, on any given day up to one-third of the trailers are empty.
In July 2010, plaintiff and the Sayreville Economic Redevelopment Agency (SERA) entered into a settlement agreement in a separate matter, granting plaintiff title to a portion of land abutting the property. This increased the area of the property by 7700.9 square feet.
According to Jay Cornell, Borough Engineer, aerial photographs of the site, taken at various times since 1954, did not reveal any trailers until 1995. Separate counts conducted on two different days in 2008 found thirty-nine and twenty-seven trailers respectively on-site. The trailer were located both in the rear of the site and "elsewhere on the site."
Zoning Officer Andrew Mashanski observed trailers at the side of the building and one in front, although he could not identify whether these trailers were on the subject property or on the neighboring SERA property, not subject to the variance condition. Moreover, the trailer at the front was at the loading docks, where trailers are moved to load and unload the drums. Lester Nebenzahl, a professional planner, observed trailers confined to the rear or easterly side of the property.
John Vincenti, a licensed professional engineer and planner, had examined the property on December 7, 2010, counting thirty-seven trailers. Based on measurements of their dimensions, he calculated that 21.4% of the property was covered by the trailers, with an additional 4.9% covered by open storage of drums. He did note, however, that from his observations, at least eight of the trailers were empty on the day of his visit.
On December 4, 2007, Mashanski issued three summonses to plaintiff, charging violations of the 1970 variance and an expansion of a non-conforming use by increasing the amount of land used for storage of drums beyond the twenty-five percent limit. On November 9, 2008, plaintiff pled guilty to expansion of a non-conforming use. This guilty plea was accompanied by a civil reservation.
Rule 7:6-2(a)(1) provides: "Upon the request of the defendant, the court may, at the time of the acceptance of a guilty plea, order that the plea shall not be evidential at any civil proceeding."
In February 2010, plaintiff submitted an application to the Board, claiming: (1) that the Zoning Officer erred in finding an expansion of a non-confirming use; (2) that the 1970 use variance applied to the entirety of the property and could not, as a matter of law, be found to be an expansion of a non-conforming use; and (3) that, in the alternative, the Board should grant plaintiff a use variance.
After hearing testimony and viewing exhibits, the Board, by a voice vote, affirmed the Zoning Officer's decision that plaintiff had violated the variance by expanding its non-conforming use of the property beyond the limits imposed. In its January 26, 2011 Resolution memorializing this decision, the Board noted that plaintiff had pled guilty in municipal court to "expansion of a non-conforming use[,]" and further declared that "an intensification of the use on the subject site has occurred over the past years[,]" noting that "no reference is made in [the 1970 variance] to permit storage trailers on site . . . ." The Resolution concluded that "[a]s such, the Board opined that [plaintiff's] use is non-compliant, intensified and radically different from the use and restrictions imposed in 1970."
Only three Board members were eligible to vote because the others had not read the transcript of an earlier October 2010 hearing. The Board did not vote on plaintiff's alternative application for a use variance.
On December 28, 2010, plaintiff filed a complaint in lieu of prerogative writs in the Law Division, claiming that the Board had "arbitrarily, capriciously and improperly determined" that plaintiff's operation constituted "an unlawful expansion of a non-conforming use" and that the variance of September 1970 "was no longer valid and enforceable as a matter of law."
On cross-motions for judgment, the court found the Board's decision to be "arbitrary and capricious," holding that plaintiff had not exceeded the scope of the 1970 use variance and that the variance was extended. Specifically, the court found:
In the instant matter, the Court finds that there was insufficient evidence in the record to support [the Board's] decision to affirm that there had been an expansion of a non-conforming use at the premises. There was a use variance issued to the prior owner in 1970 that ran with the land. Here the Court finds that the use of the variance granted September 9, 1970 properly extends and applies to the entire subject property and has not exceeded the scope of the use permitted by the use variance granted to the property. Having reviewed the papers submitted and arguments of counsel, the Court grants the relief sought by plaintiff.
In reviewing the transcript of the proceedings, the Court finds that the Board improperly considered the fact that summons were issue to [plaintiff] by the Borough's Zoning Officer. The Court finds that the Board's consideration of such facts [was] inappropriate and contributed to the Board's erroneous decision . . . . The Board's use of the guilty plea unduly influenced . . . its decision. [Plaintiff's] guilty plea is wholly irrelevant to the fact finding of the Board. In addition to which, . . . [i]t is apparent from the transcript [of the Municipal Court hearing] that the civil reservation was part of the plea agreement and should not have been a consideration by the Board. Instead the Board actually relied upon the guilty plea in its findings[.]
Moreover, the Court finds that [plaintiff's] use of the property conformed with the conditions of the 1970 approval of the use variance, while storage of the drums and barrels was limited to [twenty-five] percent of the land area, it was never demonstrated that plaintiff had exceeded the condition . . . . And so the Court finds that an expansion of the use or violation of the condition was never adequately proven
with believable, credible evidence of a violation of the condition or true increase in the use permitted under the variance granted.
The misperception of the Board as to the condition on storage of barrels and drums is further evident in the Board's Resolution in paragraph [six]. There the Resolution starts by addressing barrels and drums but quickly reverts to a discussion of trailers, which is not the condition at issue — and is never adequately addressed in the testimony.
. . . .
[Furthermore,] [t]he inquisition as to the operation of the incinerator and its compliance with environmental regulations had no legal relevance to the issues before the Board and exhibits the inability of the Board to focus on the proper legal issues under consideration.
Accordingly, the Court finds that the decision of the Board to affirm the Zoning Officer's decision was arbitrary and capricious and must be reversed. The Court finds and grants judgment to [plaintiff] finding that the use variance in question extends and applies to the entire property. It is further found and ordered that plaintiff's use has not exceeded the scope of the use permitted under the use variance previously granted to the property. Plaintiff's request for a use variance, as relief in the alternative, is denied as moot based on the foregoing decision.
On appeal, the Board raises the following issues:
I. [THE BOARD'S] DECISION IS PRESUMED TO BE VALID AND THEREFORE SHOULD HAVE BEEN SUSTAINED BY THE TRIAL COURT.
II. [PLAINTIFF'S] PRESENT USE OF THE PROPERTY CONSTITUTED AN INTENSIFICATION OF A USE WHICH NOW REQUIRED [THE BOARD'S] VARIANCE RELIEF.
III. [PLAINTIFF'S] SUBMISSION BEFORE THE [BOARD] LACKED SUFFICIENT SPECIFICATIONS TO PERMIT THE [BOARD] TO ACT ON ANY USE VARIANCE APPLICATION.
IV. [PLAINTIFF'S] REQUEST FOR USE VARIANCE RELIEF COULD NOT HAVE BEEN CONSIDERED AT THE DECEMBER 8, 2010 HEARING.
V. [PLAINTIFF'S] CONTENTIONS THAT BOROUGH PROFESSIONALS PROVIDED UNSWORN TESTIMONY IS IMPROPER.
VI. THE TRIAL COURT'S DECISION OF OCTOBER 5, 2012 WAS FLAWED.
The Board essentially contends that plaintiff's present use of the property has expanded beyond the borders of the 1970 variance, citing plaintiff's own expert (Vincenti), who noted that 21.4% of the lot is covered by trailers and 4.9% is covered with outdoor drum storage, amounting to 26.3% of the lot devoted to drum storage. We disagree.
Although courts owe deference to decisions of a zoning board, it is well-settled that such a decision may be set aside when it is "arbitrary, capricious or unreasonable." Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). However, the court may not merely substitute its judgment for that of a board "even when it is doubtful about the wisdom of the action." Cellular Tel. Co. v. Zoning Bd. of Adj., 90 F. Supp. 2d 557, 563 (D.N.J. 2000); see also CBS Outdoor, Inc. v. Bor. of Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010). Moreover, because a zoning board's actions are presumed valid, the party "attacking such action has the burden of proving otherwise." N.Y. SMSA Ltd. P'ship v. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div. 1999) (citing Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)). Thus, the court will not disturb a board's decision unless it finds a clear abuse of discretion. Med. Realty Assocs. v. Bd. of Adj., 228 N.J. Super. 226, 233 (App. Div. 1988). When reviewing a decision by a trial court that has reviewed a decision by a municipal agency, we are bound by the same standards as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). This deferential standard of judicial review, however, does not apply to purely legal questions affecting the zoning board's decision. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Thus, "as with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005).
A variance is "an official quasi-legislative, quasi-judicial determination that the use or structure allowed is not offensive to the ordinance in the broad context of the particular circumstances which, under the statutory criteria specified by N.J.S.A. 40:55-39, have authorized the grant. In essence, the use or structure allowed becomes a conforming use." Stop & Shop Supermkt. Co. v. Bd. of Adj., 162 N.J. 418, 432 (2000) (quoting Indus. Lessors, Inc. v. City of Garfield, 119 N.J. Super. 181, 183 (App. Div.), certif. denied, 61 N.J. 160 (1972)).
Variances "run with the land" and transfer with the land to subsequent successors-in-title. Stop & Shop Supermkt. Co., supra, 162 N.J. at 433. Thus, since "a variance granted becomes attached to the land and is not a mere personal right, [a subsequent] purchaser takes the land free from those zoning restrictions to which the variance pertains." Id. at 432 (quoting Eugene McQuillin, The Law of Municipal Corporations, § 25.163 (3d ed. 1991)); Campus Assocs., L.L.C. v. Zoning Bd. of Adj., 413 N.J. Super. 527, 534-35 (App. Div. 2010). The existence of a variance is important because "uses granted by variance enjoy a higher status under our law than do non-conforming uses[.]" Stop & Shop Supermarket Co., supra, 162 N.J. at 437.
Because they "run with the land," variances generally do not expire by some set time, unless such a provision is written into the variance at its inception. And, there are limits on the conditions that the board may impose. In Berninger v. Board of Adjustment, 254 N.J. Super. 401, 405 (App. Div. 1991), aff'd o.b., 127 N.J. 226 (1992), we held that the duration of a variance could not be limited by a condition which caused it to lapse upon a change of ownership of the property.
On the other hand, we have sometimes held that a variance lapsed when there was a large lag-time between the grant and the beginning of construction. See Dimitrov v. Carlson, 138 N.J. Super. 52, 58-61 (App. Div. 1975), certif. denied, 70 N.J. 275 (1976).
In this case, the ordinance never lapsed through inaction by plaintiff or by the previous owner and thus it is still in effect. Since its grant in 1970, the variance has been continuously used to allow the storage of drums at the site. This use continued under plaintiff's ownership, which began in 1972. The variance itself did not contain any conditions limiting its life, or ending its existence at the transfer of the property; nor, under Berninger, supra, 254 N.J. Super. 401, would the latter condition be enforceable. Thus, there is no reasonable basis to conclude that the variance had lapsed.
Nor is there sufficient credible evidence that the use variance has been exceeded. As the motion court correctly noted, the Board confused, during both the hearings and in its resolution, the issue of drum storage on the property (limited to twenty-five percent of the land) and the issue of trailer space available. The Board erroneously conflated Vincenti's analysis (21.4% of the lot is covered by trailers and 4.9% is covered by outdoor drum storage) to find that 26.3% of the lot is devoted to drum storage. In doing so, however, the Board ignored unrefuted evidence, cited in its own resolution in fact, that up to one-third of the trailers are empty at any given time. Thus, while the trailer space actually occupied by drum storage at any time may vary, it may be as low as 14.3% of the lot, thereby rendering total drum coverage 19.2%, well below the twenty-five percent threshold.
During the hearing, one board member expressly made the assumption that the trailers were completely full at all times, which was unsupported by the record. He noted: "We have trailers that are enclosed that you can't tell if there's barrels unfortunately in them or not. So we have to assume that that's going to be the case, that they're going to be full, all those trailers will be full. So for over 25 percent and I think that we need to look at that . . . ."
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In fact, there was no evidence that actual barrel storage ever surpassed twenty-five percent. According to Mashanski, during his inspection of the property, he opened only ten or fifteen of about forty trailers on the site, and, he acknowledged that of these ten or fifteen, some were empty. And Vincenti admitted that his calculation of 21.4% coverage was based on the assumption that all thirty-seven trailers were full, but at the same time noted that his observation also indicated that "there were a number of the trailers" that were empty. Vincenti further admitted that of twelve specific trailers he observed, "at least eight" were empty. Echoing this, Anthony Foglia, plaintiff's president, indicated that "probably one-third of them are empty" from day-to-day. He further noted that one-third of the trailers are used "during the process" of refurbishing, i.e., in order to move the drums. Accordingly, the Board's finding of a violation of the twenty-five percent condition is simply not supported by competent evidence in the record and was thus arbitrary and capricious.
Similarly unsupported is any finding of a violation of the use variance's "location" condition. The 1970 variance states that the area for barrel or drum storage is to be confined to the rear of the existing building. While there was some suggestion that there may have been trailers located at the front of the building by the loading docks, that same evidence also indicated that the trailers in front at the loading docks were being used to transport the drums and not as storage for drums awaiting processing. Moreover, the evidence suggested that the trailers at the front are temporarily located there for loading and unloading purposes and are not left there permanently, unlike some of the trailers in the rear of the property. Storage, by its definition, implies the keeping of items in one place for use later. See Webster's Third New International Dictionary, Unabridged (3d ed. 1961) (storage is defined as a "space for the safe keeping of goods."). Thus, there is no transgression of the 1970 use variance when trailers temporarily located at the front of the property are not being used to store the drums.
By parity of reasoning, if the 1999 ordinance rezoning plaintiff's property as residential may be regarded as rendering plaintiff's present use non-conforming, there was no increase or change in the non-conformity. In general, "[a]ny [non-conforming] use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof." N.J.S.A. 40:55D-68. "The method generally used to limit [non-conforming] uses is to prevent any increase or change in the [non-conformity]." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 316 (1980). Thus, the non-conforming use "is ordinarily restricted to its character and scope at the time the ordinance making it a [non-conforming] use was enacted." Bonaventure Int'l, Inc. v. Bor. of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002). As such, "[t]he use may not be enlarged as of right except when the change is negligible or insubstantial." Ibid. In analyzing a non-conforming use claim,
[t]he issue is whether the present use is substantially similar to the use which existed at the time of adoption of the zoning ordinance, or whether there has been an illegal extension of the use. If the present use is substantially similar to the use at the time it became [non-conforming], it will be permitted to continue. On the other hand, if there has been an illegal extension of use, a variance must be obtained.
[Id. at 433 (citations omitted).]
An increase in the volume of business is not itself sufficient to be considered an expansion of a non-conforming use. Hantman v. Twp. of Randolph, 58 N.J. Super. 127, 136 (App. Div. 1959), certif. denied, 31 N.J. 550 (1960). In evaluating the case, "the court must consider the quality, character and intensity of the expansion and its impact on the neighborhood." Bonaventure Int'l, Inc., supra, 350 N.J. Super. at 435.
Here, there was no "illegal" expansion of a non-conforming use. Foglia testified about plaintiff's long history of trailer use on the property, from 1972 to present. And even if we credit Cornell's testimony that aerial photographs did not reveal any trailers until 1995 (although he admitted that the 1987 photo was not clear enough to do a count), trailers were clearly being used before the area was rezoned in 1999 into a residential zone. Thus, the use existed at the time of re-zoning and the issue then becomes "whether the present use is substantially similar to the use which existed at the time of adoption of the zoning ordinance, or whether there has been an illegal extension of the use." Bonaventure Int'l, Inc., supra, 350 N.J. Super. at 433.
Foglia did admit that the number of trailers has increased as plaintiff has shifted from storing drums on the open ground to storing them in trailers. This, by itself however, is not sufficient to establish a substantial extension. Hantman, supra, 58 N.J. Super. at 136. Rather, we "must consider the quality, character and intensity of the expansion and its impact on the neighborhood." Bonaventure Int'l, Inc., supra, 350 N.J. Super. at 435.
In this case, the site has been continuously used for the same purpose, the refurbishment of drums, from 1970 to 1999 and into the present. Although the increase in the number of trailers on-site (from perhaps nine in 1995 to thirty-seven at present) could represent an increase in the volume of work at the site, the change in the method of storage of the drums appears unrelated to volume. Additionally, as noted by plaintiff's counsel at the hearing, no complaints were raised by residents surrounding the property. Nor were there any public objections presented at the hearing to the continuing use of the site. Thus, there appears to be little impact, if any, on the neighborhood, from any increased production. Simply put, an analysis of the expansion and its impact on the surrounding area reveals merely an increase in volume and change in the method of storage and not a "substantial expansion" of a non-conforming use. Consequently, plaintiff's present activities fall within the ambit of the existing variance.
Because we find that plaintiff's present use falls within the scope of the 1970 use variance and does not constitute an expansion of a non-conforming use, we need not decide whether there was sufficient evidence to justify issuance of a new variance.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION