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Weber v. Pieretti

Decided: January 22, 1962.


Mintz, J.s.c.


The plaintiffs are one-family residential property owners who reside in proximity to the premises of the Brookdale Beverage Co. ("Brookdale"), a substantial concern engaged in the manufacture and bottling of soft drink beverages at 218-228 Sylvan Road, Bloomfield, N.J. Defendant Joseph Pieretti, Jr. first went into possession of the premises, referred to as the Herbstreith tract, about 1927. This tract has a frontage of approximately 72 1/2 feet on the north side of Sylvan Road and a depth of about 780 feet. Mr. and Mrs. Pieretti reside in the dwelling fronting on Sylvan Road. The bottling plant and accessory uses thereto are situate on this lot to the rear of the dwelling. He commenced the business in a barn-like structure in 1928 and acquired title to this tract on October 30, 1935. He and his wife acquired title on October 25, 1943 to the adjoining easterly tract, referred to as the Ochsner tract, which also has a frontage of about 72 1/2 feet on Sylvan Road and a depth of about 780 feet. Thus, the property in question has a total frontage on Sylvan Road of approximately 145 feet and a depth of about 780 feet. The Ochsner tract is presently used as part of the Brookdale driveway, for the parking of vehicles and other uses incidental to the operation of the bottling plant. Adjoining the Herbstreith tract on the west is a plot of similar dimension referred to as the Patterson tract. A dwelling on the Patterson tract fronts on Sylvan Road and a trucking business is in operation to the rear of the same. Brookdale uses the Patterson driveway and a refuse pit as well as some storage sheds on that tract.

Brookdale was operating its business on December 15, 1930 when the Town of Bloomfield adopted a zoning ordinance which placed the subject property in the "Small Volume Residential

Zone A." Since that date the Brookdale operations have been conducted in an attractive single-family residential zone. A recently constructed public school is less than a block away from Brookdale's premises.

Plaintiffs contend that over the years Brookdale has vastly and unlawfully extended its valid nonconforming use, that the increased operation with the attendant noises and heavy truck traffic constitutes a nuisance, and that the municipal authorities have failed to enforce the zoning ordinance. They seek to enjoin Brookdale from violating the zoning ordinance, in effect to "roll back" the Brookdale use to the use it enjoyed as of December 15, 1930, and to abate the nuisance. The proceeding against the municipal authorities is an action in lieu of prerogative writs to require them to enforce the provisions of the zoning ordinance.

The defendants Pieretti contend that the Brookdale uses today are substantially the same as of December 15, 1930; that the only addition to the building was one made to the front as a result of a valid building permit issued in 1941. They concede that the business, which is both wholesale and retail, has increased tremendously, but assert that with modern equipment the use has merely been intensified, not enlarged. Furthermore, they contend plaintiffs have not shown any special damages which entitle them to bring this action, and in any event they are barred from relief because of laches and estoppel.

In 1944 defendants Pieretti applied for a variance to build an addition to the bottling plant. The application was denied and the denial affirmed. Pieretti v. Johnson , 132 N.J.L. 576 (Sup. Ct. 1945). Again, in June 1958, they applied for a variance to add a proposed addition on parts of both tracts owned by them. The board of adjustment recommended the variance. The town council rejected the recommendation. The Pierettis instituted an action in lieu of prerogative writ to review the determination of the town council. On appeal the Supreme Court affirmed the action of the town council. Pieretti v. Bloomfield , 35 N.J. 382 (1961).

Brookdale's use of the premises has been the subject of several proceedings in the Bloomfield Municipal Court. A complaint was filed against Joseph Pieretti, Jr. on December 8, 1943 for commencing to erect a structure before obtaining a building permit, and a second complaint for constructing part of a building in violation of the zoning ordinance. He was convicted on the first mentioned complaint, and found not guilty on the second charge. On December 16, 1946 he was adjudged guilty of putting a window in a frame without a permit. On February 14, 1949 five charges were preferred against Joseph Pieretti, Jr., one for violation of the zoning ordinance and four for violations of the building code. He was found guilty on the zoning charge, one charge for violation of the building code was dismissed, and he was adjudged guilty on the remaining three charges for violation of the building code. Apparently the charges pertained to erection of three tents on the subject tracts used for storage purposes. As a result of the convictions the tents were removed.

Plaintiffs urge that Pieretti v. Bloomfield, supra , has affirmatively determined that Brookdale has unlawfully expanded its nonconforming use and that the doctrine of collateral estoppel by judgment applies. Defendants assert that such finding is mere dictum. The doctrine of collateral estoppel is restricted to matters or facts directly in issue and does not extend to any matter which came collaterally in question. Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action. Mazzilli v. Accident, &c., Casualty Ins. Co. etc. , 26 N.J. 307, 315 (1958); Restatement, Judgments , ยง 68 (1942).

In Pieretti v. Bloomfield, supra , the validity of the nonconforming use was projected as a legal issue in the pretrial order. Testimony on this issue was presented before the board of adjustment and was included in the record before the Supreme Court. Some of the property owners who intervened

as defendants are also plaintiffs in this action. The court held that since the Pierettis were denied a variance in 1944, that decision (Pieretti v. Johnson, supra) was res adjudicata as to their subsequent application for a variance in 1958, and furthermore, no undue hardship or "special reason" was shown so as to justify the granting of a variance. The court said at page 389 of 35 N.J.:

"Moreover, if there be any exceptional and undue hardship upon the plaintiffs, it results from their own acts. They acquired both tracts of land after the zoning ordinance was adopted in 1930 and thus they purchased the land with knowledge that such properties were in a one-family residential zone. In their 1944 case plaintiffs' counsel stated that the second tract had been purchased subject to the zoning ordinance. There is no doubt that there has been an expansion of the plaintiff's business, and it also appears that plaintiffs, without permission or authority, expanded their own non-conforming use. For example, one of the exhibits in evidence shows growth in building area from 1400 square feet in 1937, to 2280 square feet in 1941, to 5,800 square feet in 1944 and finally to 9,300 square feet in 1958. Cf. Black v. Town of Montclair , 34 N.J. 105, 118 (1961).

Plaintiffs testified in 1944 that they were using 6 trucks and were employing 11 people. In 1958 they had 15 trucks and were employing 42 people. One can reasonably conclude that plaintiffs have expanded a non-conforming use without permission and if hardship results, plaintiffs brought it about. We cannot sanction such actions. Mocco v. Job , 56 N.J. Super. 468, 470 (App. Div. 1959)."

It appears that Pieretti v. Bloomfield, supra , determined that the Pierettis, without permission or authority, expanded their own nonconforming use. To this extent the doctrine of collateral estoppel by judgment as to such finding applies in the instant case.

Independent of collateral estoppel, the testimony in the case sub judice abundantly supports the same conclusion. Clearly, title to both tracts was acquired after the adoption of the zoning ordinance with knowledge that the properties were in a one-family residential zone.

When the Pierettis acquired title to the Ochsner tract it was heavily wooded, with dense underbrush. They contend that prior to 1930, although they neither owned nor leased this lot, Brookdale used it with the knowledge of

the owner for driveway and storage purposes as well as for parking vehicles in between the trees, and that none of such uses has been enlarged.

Admittedly, about 1954 a large exposed carbonation tank was placed on the Ochsner tract east of the front of the bottling plant, thereby without authority appropriating more of that land for business use. Cf. Struyk v. Samuel Braen's Sons , 17 N.J. Super. 1 (App. Div. 1951), affirmed on opinion 9 N.J. 294 (1952). Mr. Pieretti testified that in 1928 he used the rear of the Ochsner tract for storage purposes and covered his merchandise with a tarpaulin. Presumably the large unsightly trailer bodies now on that tract eventually replaced and vastly increased the former storage facilities, if any, on the Ochsner tract.

Fairway is a street that was cut through in the early 1940's from the north side of Sylvan Road and extends northerly at right angles to Sylvan Road. It is now a nice, completely built-up, one-family residential street. Some of the rear property lines of properties on the west side of Fairway adjoin the easterly side of the Ochsner tract. By letter dated October 26, 1943 (one day after title was acquired to the Ochsner tract) addressed to N. M. Stott, President, The Fairway Association, 24 Fairway, Bloomfield, N.J., Mr. Joseph Pieretti, Jr. expressed his disappointment over the refusal of the members of that association to go along with his contemplated improvements, and that as a result he was required to revise his plans. He wrote in part:

"These plans now compel me to enter a phase of operation which I had hoped would be entirely unnecessary and embraces the cutting down and removal of trees adjoining your property lines, level off with cinders or other substitute and to use such area cleared for the storage and operation of trucks, barrels, bottles, empty cases and other equipment that lends itself suitable for outside storage and operation."

In the course of his testimony before the board of adjustment in 1944 on his application for a variance, Mr. Pieretti

stated that he intended to build his home on the Ochsner tract; that he did not intend to use that lot in conjunction with his business on the adjoining property; that he did not intend to use that property for a driveway, stating, "I have a driveway large enough all these years, it will still be large enough." Thus, from the pen and lips of defendant Joseph Pieretti comes the admission that the Ochsner tract was not used for business purposes prior to 1943-1944. His attempt in this proceeding to explain away his earlier testimony in the 1944 proceeding was completely ineffective, particularly ...

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