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Township of East Hanover v. Cuva

Decided: February 3, 1978.

TOWNSHIP OF EAST HANOVER, A MUNICIPAL CORPORATION IN THE COUNTY OF MORRIS, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER CUVA AND JOANNE S. CUVA, HIS WIFE, DEFENDANTS-APPELLANTS



Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

[156 NJSuper Page 161] Plaintiff Township of East Hanover brought this action in the Chancery Division pursuant to N.J.S.A. 40:55-47*fn1 seeking to enjoin defendants Peter and Joanne Cuva from using their property for outdoor storage of heavy construction equipment, that use allegedly being in violation of the municipal zoning ordinance. Defendants

appeal from the judgment according the township that relief. For the reasons herein set forth, we reverse and remand for plenary trial.

Defendants are the owners of a parcel of land located in the township's Industry I-1 Zone in which the permitted uses are limited to warehouse facilities, finishing and assembling of manufactured and refined articles, the preparation and fabrication of metals and chemicals, research activities and "similar uses not specifically prohibited." In the Fall of 1969 defendants applied to the township's planning board for site plan approval for the erection on the property of a single-story masonry building to house, service and maintain heavy construction equipment. There was not then, nor is there now, any suggestion by the municipal officials or others that the proposed construction garage use itself would be violative of the zoning ordinance. A neighborhood objector appeared at the planning board hearing to express his concern, however, over possible outdoor storage of equipment, and defendants' attorney assured the board that no use of the property would be made in violation of the zoning ordinance. Site plan approval was accordingly granted, a building permit issued, the facility built, and in the Spring of 1972 a certificate of occupancy granted.

Several years later, in December 1974, the township, by its building inspector, signed a municipal court complaint against defendants charging them with violation of the ordinance. The gravamen of the third count of the complaint was that they were using a portion of the property for permanent outdoor storage of construction equipment. The municipal court judge, by written decision dated April 23, 1975, dismissed that count of the complaint on its merits finding, in effect, that defendants' original intention "to park some of [the] equipment outdoors in [the] rear yard" was known to the municipal officials before the necessary permits and certificates were issued and that that use was in any event not in violation of the ordinance. This injunctive action ensued.

Defendants argue first that the injunction action is barred by the doctrines of res judicata , collateral estoppel or double jeopardy, their claim being that the municipal court acquittal of the quasi -criminal ordinance violation precludes any further attempt by the township to seek relief for a violation, if indeed there is one. We disagree. It is well settled that acquittal of criminal or quasi -criminal charges does not have preclusionary consequences in respect of a subsequent civil action based on the same conduct, and this is so even if the parties to both actions are the same. See Helvering v. Mitchell , 303 U.S. 391, 397-399, 58 S. Ct. 630, 82 L. Ed. 917 (1937) (acquittal of income tax evasion charge does not bar subsequent civil suit by the government to recover a tax deficiency alleged in the criminal action). And see, applying this principle in this State, In re Darcy , 114 N.J. Super. 454 (App. Div. 1971) (acquittal of a criminal charge of nonfeasance in office does not bar subsequent Civil Service Commission proceedings based on the same alleged conduct); Kugler v. Banner Pontiac-Buick, Opel, Inc. , 120 N.J. Super. 572, 579-580 (Ch. Div. 1972) (the Attorney General is not barred from bringing suit against an alleged violator under the Consumer Fraud Act despite his previous acquittal of disorderly persons charges arising out of the same operative facts); Freudenreich v. Fairview Mayor, etc. , 114 N.J.L. 290 (E. & A. 1934) (prior acquittal of police officer of a criminal charge did not bar departmental proceedings against him based on the same allegations). And see In re Pennica , 36 N.J. 401 (1962) (acquittal of a lawyer of a criminal charge does not bar subsequent disciplinary proceedings against him based thereon). This principle has, moreover, been applied in the precise zoning context here involved. See Protokowicz v. Lesofski , 69 N.J. Super. 436, 445 (Ch. Div. 1961). And see Cahill v. Heckel , 87 N.J. Super. 201 (Ch. Div. 1965).

We are satisfied that these holdings are consonant not only with the principle of Helvering v. Mitchell, supra , but also with the specific legislative intention expressed both

in N.J.S.A. 40:55-47 and its successor statute, N.J.S.A. 40:55D-18, expressly according municipalities the right to seek injunctive enforcement of their zoning ordinances as a cumulative and additional remedy and not as a remedy exclusive to any other which might be available by resort to the municipal court or otherwise. See Alpine Mayor, etc., v. Brewster , 7 N.J. 42 (1951); Walle v. South Brunswick Tp. Bd. of Adj. , 124 N.J. Super. 244, 247 (App. Div. 1973); Allendale Nursing Home, Inc. v. Allendale , 141 N.J. Super. 155, 161 (Law Div. 1976), aff'd 149 N.J. Super. 286 (App. Div. 1977). We note, moreover, that at least in respect of civil actions the preclusionary consequences implicit in the doctrines of res adjudicata and collateral estoppel are generally regarded as not attaching to judgments of courts of limited jurisdiction where, as here, the standard of proof is higher than that applicable to the second suit, the party in the second suit against whom preclusion is urged was, as a matter of law, unable to appeal from the first judgment, and the nature of the remedy available in the second suit in vindication of a public interest is more expansive than that in the first suit. See generally Restatement, Judgments 2d, ยง 68.1 (Tentative Draft No. 4, 1977).

Finding no procedural bar to the action, we address the merits thereof. In this regard defendants urge that the ordinance does not preclude the use of the property for outdoor storage, and if it does not, the township should be estopped from so claiming. They also claim that an evidential error made by the trial judge in respect of certain photographic exhibits was so prejudicial as to require reversal.

With respect to the ordinance interpretation question, we agree with the trial judge that outdoor heavy equipment storage is not a permitted primary use of the property -- it is neither a specifically enumerated use nor a use sufficiently like those enumerated despite the fact that the municipality itself regards such indoor use as sufficiently like. That conclusion, however, is not ...


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