Opinion
DOCKET NO. A-2807-12T1
07-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RUDOLFO ORTIZ, Defendant-Appellant.
John M. Breslin, attorney for appellant. Hollander, Strelzik, Pasculli, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C., attorneys for respondent Fredon Township Zoning Officer (William E. Hinkes, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 34-11-12.
John M. Breslin, attorney for appellant.
Hollander, Strelzik, Pasculli, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C., attorneys for respondent Fredon Township Zoning Officer (William E. Hinkes, on the brief). PER CURIAM
Defendant Rudolfo Ortiz appeals from his conviction on trial de novo in the Law Division for violation of a municipal zoning ordinance because he kept too many cars on his property in a residential zoning district. We affirm.
Defendant was cited for four zoning violations and tried in the combined municipal court that includes Fredon Township in Sussex County. The evidence at trial proved the following facts.
Defendant and his wife live in a single-family house in Fredon Township. They are the only residents. Their property is in a residential zoning district of the township.
Counsel for the township stated during argument that the lot is about 1.2 acres in size, and is a permitted, non-conforming use because, we presume, its subdivision predated adoption of the zoning ordinance requiring larger lot sizes. In the appellate record, we have not found evidence that was admitted at defendant's trial establishing the size of his lot.
In 1999, the township's zoning officer issued a notice of abatement to defendant and his wife indicating that they were violating a municipal ordinance that prohibited non-operating vehicles from being kept on property in a residential zone. As a result, defendant applied for and was granted a building permit to build two pole barns for the purpose of storing his collection of cars, in addition to an existing garage. He built the barns, each approximately twenty-six by forty feet in dimensions.
As shown by aerial photographs admitted in evidence at defendant's trial, cars were not being parked outdoors shortly after the barns were built. But by 2007, an aerial photograph revealed that defendant was again parking many cars outside on his driveway and near the barns. Neighbors complained to the zoning officer about the visual detraction in the neighborhood and also about fumes from cars and from paint and the noise of machinery on weekends when people came to the property and did mechanical and body work on the cars.
In May 2010, the zoning officer issued another notice of abatement for "junk vehicles." The notice stated:
There are several unregistered non operating vehicles on your property and a tow truck. According to your file you had built structures to house your vehicle collection. If it is your desire to keep the vehicles in your driveway you must supply proof that they [are] operating and legal to drive, i.e. registered, insured, and inspected.Defendant supplied proofs as requested.
In August 2010, the zoning officer received new complaints and investigated defendant's property. She then wrote him a courtesy letter inquiring about a new stockade fence on the property and a number of cars parked "in the grass on the hill." The letter also notified defendant that, in addition to the question of registration and insurance for the vehicles, "[t]he number of vehicles you have stored on the property . . . is excessive and does not fit into the definitions of permitted uses in the AR residential zone." The letter alleged that defendant's property "is becoming a 'junk yard.'"
The charges on which defendant was tried originated when neighbors continued to complain and the zoning officer issued another notification letter in June 2012. The letter referred to the township zoning ordinance pertaining to accessory use of property and stated that the "expansion of the vehicle collection outside of the buildings was not part of the approval" defendant had received in 1999 to store cars as part of his "personal collection."
A follow-up letter notified defendant that he would have to apply for a variance to keep a large number of vehicles on the property and gave him a deadline for making an application. After the deadline passed, the zoning officer issued a notice of abatement to defendant on July 24, 2012. Defendant did not respond to the notice and did not remove the vehicles.
On August 2, 2012, the zoning officer issued four summonses charging defendant with failure to obtain a zoning permit, operating a junkyard in a residential zone, operating a junkyard without a license, and unregistered vehicles on property. The case came to trial in the municipal court in September 2012. The zoning officer testified about the history of communications with defendant as recounted here and her own observation of many cars parked outside in various places on defendant's property. She described the cars not as classic or antique collectible cars but as a variety of common used cars and vans. She did not know the number of cars but photographed a total of sixteen cars visible from outside the property on a day in the summer of 2012. In her discussions with defendant, he would not reveal to her how many cars he kept on his property.
The prosecution also presented the testimony of a long-time resident of the township whose house is near defendant's and in sight of much of his property. The neighbor testified about observing many cars always parked on the property, and about weekend work being done all day on the cars by defendant and other men. He complained about fumes from the cars and from paint and noise of machinery interfering with the enjoyment of his own home.
In the defense case, defendant testified that he collected cars as a hobby. He testified that he had thirty-nine cars on his property at the time of trial, and all were registered and insured. He presented documentary evidence to support his testimony. He said he drove different cars to his job as a corrections officer, and that he did not sell any cars or car parts. Defendant's wife also testified briefly to the same effect as defendant.
The municipal court judge asked the attorneys for briefing on the legal issues and then stated his decision orally on October 7, 2012. He found defendant guilty of failure to obtain a permit for a new or changed use of his property, a violation of Fredon Township Ordinance Section 550-12, and not guilty of the junkyard and unregistered car charges. Defendant was sentenced to pay a fine of $1000, of which $500 was suspended on the condition that he apply within thirty days for a variance or remove all but five cars from outdoor storage on the property. Court costs were also added to the monetary penalty.
Defendant appealed to the Law Division. At his trial de novo pursuant to Rule 3:23-8(a), the Law Division also found defendant guilty of failure to obtain a zoning permit. The Law Division considered Borough of Chatham v. Donaldson, 69 N.J. Super. 277, 279 (App. Div. 1961), a case where the defendant kept four cars in his driveway, some of which were in disrepair. We held in Borough of Chatham that the defendant had not violated the municipal zoning ordinance. Id. at 282. The Law Division in this case concluded that defendant's storage of thirty-nine cars was distinguishable and not a permitted accessory use of his property. It imposed the same penalty as the municipal court but stayed execution of the sentence pending appeal.
Defendant argues before us that no statute or ordinance restricts the number of motor vehicles that he may keep on his residential property. While that may be true, it misstates the basis for his conviction. He was not convicted of keeping too many vehicles. He was convicted of violating a municipal zoning ordinance pertaining to the use of his property.
Fredon Township Ordinance Section 550-12 provides in relevant part:
No land shall be used, no use shall be commenced . . . and no land, use or structure shall be changed from an existing use to a new use until a zoning permit is issued by the Zoning Officer stating that such use . . . conforms and complies with the provisions of this chapter or that a variance has been granted from the appropriate provisions of this chapter by a board of competent jurisdiction.There is no dispute that defendant did not obtain a permit to use his property for the purpose of storing or keeping motor vehicles. The question is whether he needed a permit. The answer depends on whether the storing or keeping of motor vehicles is a permitted use of the property under the pertinent zoning ordinance of the township.
Defendant's property is located in the AR-6 zone. Section 550-59 of the township's zoning ordinance provides that permitted uses in the "R-6" zone are detached single-family residential dwellings and certain types of community residences. Furthermore, Section 550-61 lists and describes a number of accessory uses of the property that are permitted in the R-6 zone. Section 550-19 defines "accessory use" as "[a] use naturally and normally incident and subordinate to the principal use of a structure or lot and located on the same lot as the principal use to which is relates."
Although not explicitly stated or argued in the parties' briefs, we presume that the ordinance regulations applicable to the R-6 zone are the same as those applicable to the AR-6 zone as they may apply to the dispute in this case.
--------
Keeping of motor vehicles is not listed among the specifically-described accessory uses that are permitted in the R-6 zone. However, Section 550-61(G) provides the following general description of other permitted accessory uses besides those specifically listed: "Other accessory buildings or uses customarily incidental to the main permitted use in the zone." (emphasis added).
In deciding whether an accessory use falls within this general definition, two determinations must be made. "The first is whether the use is incidental to the main use: does the use . . . bear a close resemblance and obvious relation to the main use to which the premises are put?" State v. P.T. & L. Construction Co., 77 N.J. 20, 26-27 (1978) (quoting Honigfeld v. Byrnes, 14 N.J. 600, 606 (1954)) (internal quotation marks omitted). The second determination is whether the proposed use is customary, that is, "a use which is so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it." Id. at 27; accord Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 603-04 (App. Div. 1997); see also Charlie Brown of Chatham v. Bd. of Adj., 202 N.J. Super. 312, 324 (App. Div. 1985) ("It is not enough that the use be subordinate; it must also be attendant or concomitant.").
To be "incidental" to the principal use of the property, the keeping of motor vehicles must bear a close resemblance and obvious relation to the main use of defendant's property as a single-family residence. Furthermore, in Tanis, supra, 306 N.J. Super. at 592, a case which involved an airplane landing strip on a farm, we said "[t]wo significant factors appear to influence the determination whether an incidental use should be classified as customary: commonality and impact." Id. at 604. "Commonality" refers to whether the use has "commonly, habitually and by long practice been established as reasonably associated with the primary use." Id. at 604-05 (quoting Charlie Brown, supra, 202 N.J. Super. at 324). "Impact" refers to the effect on the neighborhood and the zoning plan of the municipality. "A use which impairs the municipality's land use plan or interferes with the neighbors' use and enjoyment of their property would not be one the governing body intended to permit." Id. at 607.
Without question, use of residential property to keep motor vehicles for personal use is customarily incidental to the principal residential use. The Fredon Township zoning ordinance does not prohibit use of defendant's property to park cars that he, his wife, and guests use for personal transportation.
In addition, the use of residential property to maintain a car collection has been permitted as incidental to the use of the home as a residence. In Borough of Chatham, supra, 69 N.J. Super. at 282, we recognized that it is customary and incidental to use residential property to pursue a hobby. In that case, defendant did repair work on the four cars he kept in his driveway and used some of them for personal transportation. Id. at 279-80. We said:
Use by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and recreational advantages of the family. Pursuit of a hobby is clearly customarily a part of recreational activities.
[Id. at 282 (citations omitted).]
But to this statement we added a caveat: "As long as the pursuit thereof is not of such a nature, or to such an extent, as to impair the residential character of the neighborhood, it cannot be supposed a zoning ordinance was intended to prevent it." Ibid. We concluded that the Chatham Borough ordinance contemplated three cars or more for a family, since it permitted three-car garages, and the keeping of one or two extra vehicles as a hobby did not impair the residential character of the neighborhood. Ibid.
However, as the municipal court and Law Division judges in this case concluded, the keeping of thirty-nine cars was much more intense activity than the four cars in Borough of Chatham. The question before us is whether the nature and level of defendant's use of his property for his car collection and repair hobby qualifies as a recreational use that is customarily incidental to the primary residential use of the property.
We find no error in the conclusions of the zoning officer and the two judges who tried the case that defendant's use does not "bear a close resemblance and obvious relation to the main use" of the property as a single-family residence. P.T. & L. Construction, supra, 77 N.J. at 26-27. Nor is such intense use "customary." It fails to satisfy either the commonality or the impact factor. See Tanis, supra, 306 N.J. Super. at 604. Defendant's recreational use of his property has not commonly, habitually, and by long practice been established as reasonably associated with primary residential uses. See id. at 605.
We recognize that there need not be any similar facilities or uses to make defendant's hobby customarily incidental to the use of his home. In P.T. & L. Construction, supra, 77 N.J. at 27, where the issue was a heliport at a construction company's headquarters in Paramus, the Court stated: "[t]he fact that a use is not customarily indulged in, however, is not conclusive, and even if the use in question is found in a small percentage of similar main uses, the use may still be found to be 'customary.'" See also Newark v. Daly, 85 N.J. Super. 555, 560-61 (App. Div. 1964) (milk vending machine in apartment building was a permitted accessory use although not prevalent in apartment buildings), aff'd, 46 N.J. 48 (1965). Nevertheless, in P.T. & L. Construction, the record revealed that other heliports existed in Paramus and there were at least eight other construction company heliports in the State. Id. at 27-28. There was no similar evidence in this case.
In addition, the neighbor's testimony showed that defendant's use interfered with the use and enjoyment of neighbors' properties and had a negative impact on the municipality's land use plan. The witness testified he had to keep his windows closed because of the fumes and noise, and he could not enjoy full use of his yard.
Defendant's use of his residential property to store and work on vehicles, including body and painting work, is more like the private airplane landing strip that we found "exceptionally unusual" in Tanis, supra, 306 N.J. Super. at 605, or the manned dry-cleaning pick-up station in an apartment building that was not a permitted accessory use in Zahn v. Newark Board of Adjustment, 45 N.J. Super. 516, 522 (App. Div. 1957). It impaired the residential character of the neighborhood.
We hold that the Law Division did not err in its conclusion that defendant's use was not customarily incidental to the principal residential use of his property and that defendant needed a zoning permit pursuant to Fredon Township ordinance Section 550-12 to make that additional use of his property.
Defendant also argues that his quasi-criminal conviction and sentence should be set aside as a violation of his due process rights because the ordinance is unconstitutionally vague and overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 114-115, 92 S. Ct. 2294, 2298-99, 2302, 33 L. Ed. 2d 222, 227-28, 231 (1972). He contends the ordinance is vague as applied to his conduct because it does not designate how many cars may be kept at a residence and it permits zoning officers and judges to make arbitrary and discriminatory application of the ordinance to residents' conduct that is not clearly defined. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110, 115 (1972). We find no such constitutional infirmity in the ordinance requiring a permit to engage in a new or changed use of property.
Like the anti-noise ordinance that the Supreme Court found was not unconstitutionally vague in Grayned, supra, 408 U.S. at 110-11, 92 S. Ct. at 2300-01, 33 L. Ed. 2d at 229-30, and a noise ordinance that we found to be constitutional in State v. Clarksburg Inn, 375 N.J. Super. 624, 640-42 (App. Div. 2005), the ordinance in this case was not unconstitutionally vague. In addition, defendant had ample notice that his conduct was a violation of the township's zoning ordinance. At various times from 1999 through the issuance of the summons in 2012, defendant was in communication with the zoning officer and was referred to the specific provisions of the zoning ordinance regarding accessory uses and the requirement of a permit.
Finally, we need not address defendant's overbreadth argument because his hobby was not a constitutionally protected activity, such as speech. See Grayned, supra, 408 U.S. at 114-15, 92 S. Ct. at 2302, 33 L. Ed. 2d at 231.
Affirmed. The stay of execution of defendant's sentence is dissolved.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION