On appeal from Superior Court, Law Division, Essex County.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
[168 NJSuper Page 2] Defendant Parrillo's, Inc. was convicted in the Municipal Court of Belleville on a complaint charging it with "extending a nonconforming 'use' without application to the B.O.A. [board of adjustment]." On appeal, after a trial de novo , the Superior Court, Law Division, affirmed. R. 3:23-1. Defendant filed an appeal from said
conviction to this court. We stayed all enforcement proceedings in the trial court and accelerated disposition of the appeal on the waiver by the parties of oral argument.
The municipal court judge found that defendant had been operating a restaurant which dispensed alcoholic beverages under its retail-consumption alcoholic beverage license, with some dancing with music furnished by a band, as a nonconforming use in a Class B Residential District (permitting two-family dwellings); that defendant had converted said use into a "disco"; that the food served is now incidental to the operation as a discotheque, and that defendant charges for admission.
The municipal judge's findings are embodied in the following:
Considering all the evidence, it's a difficult situation -- I do find as a matter of fact that this is in fact a different use completely, that a disco and the operation under which the defendant is operating differs completely from the heretofore operation.
They do -- they might sell some food. That doesn't make it a restaurant. The main business heretofore was a restaurant and bar with some dancing by a band. The present use, namely, is a disco. * * * [T]he food is incidental. They charge now for admission, which they didn't charge heretofore. The defendant tries to imply the fact that because there was a cover charge that a cover charge is in fact an admission. That isn't so in my opinion.
I therefore find as a question of fact that the defendant did operate this business as a disco, which in my opinion was not an extension of the heretofore use without obtaining a variance. I find as a question of fact that the present use is not permitted under the zoning laws of the town and that no application for a variance was made.
The judge of the Sueprior Court, Law Division, who heard the appeal from the municipal court made no findings of fact, but merely ordered that the appeal from the Belleville Municipal Court "be denied."*fn1
The scope of our review is limited to determining whether the judge's findings are supported by sufficient credible evidence. State v. Johnson , 42 N.J. 146, 162 (1964). Our review of the record leads us to conclude that the judge's findings are not sustained by the proofs.
The evidence adduced clearly and indisputably disclosed that defendant enjoyed a nonconforming use of the subject premises. Located in a residence zone, the premises had been operated as a restaurant prior to enactment of the zoning ordinance. As part of that business defendant provided live music for dancing on a dance floor. The municipality asserts that defendant operates a different or extended business ...