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Town of Belleville v. Parrillo''s Inc.

Decided: June 19, 1980.

TOWN OF BELLEVILLE, PLAINTIFF-APPELLANT,
v.
PARRILLO'S, INC., DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 168 N.J. Super. 1 (1979).

For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

[83 NJ Page 311] We granted certification, 82 N.J. 291 (1980), to review the Appellate Division's reversal of defendant's conviction for violating the zoning ordinance of the Town of Belleville. Town of Belleville v. Parrillo's, Inc., 168 N.J. Super. 1 (1979). Specifically, defendant was found guilty of extending a nonconforming

use*fn1 when it changed its operation from a restaurant to a discotheque without having first obtained approval of the local board of adjustment. The Appellate Division concluded that "within the meaning and intent of our applicable statute, N.J.S.A. 40:55D-68, defendant did not either extend or enlarge its use of the premises." Id. at 7. Our examination of the record satisfies us that a prohibited change in use was established beyond a reasonable doubt, that being the appropriate standard of proof in these quasi -criminal proceedings. City of Trenton v. Calvary Apostolic Temple, Inc., 166 N.J. Super. 145 (App.Div.1979). We therefore reverse and reinstate the judgment of conviction.

I

The record demonstrates that sometime prior to 1955 Parrillo's operated as a restaurant and catering service on Harrison Street, Belleville. On January 1, 1955 the Town enacted a new zoning ordinance of which all provisions pertinent here are still in effect. The system created under that ordinance provided for zoning under which specific permitted uses for each zone were itemized. Uses not set forth for a particular zone were deemed prohibited. Parrillo's was situated in a "B" residence zone, which did not allow restaurants. However, because it had been in existence prior to the effective date of the zoning ordinance, defendant's establishment qualified as a preexisting nonconforming use and, under the terms of the ordinance, was allowed to remain in operation.

In 1978 defendant's owners made certain renovations in the premises. Upon their completion Parrillo's opened as a discotheque. We readily acknowledge that included among those for whom the term "discotheque" has not, at least until this case, found its way into their common parlance are some members of

this Court; and on the assumption that there may be others whose experience has denied them an intimate familiarity with the term and the milieu to which it applies, we pause to extend the benefit of definition. Webster's Third New International Dictionary 63a (1976) informs us that a discotheque is a "small intimate nightclub for dancing to recorded music; broadly: a nightclub often featuring psychedelic and mixed-media attractions (as slides, movies, and special lighting effects)".*fn2 "Disco" appears to be an accepted abbreviation. Defendant's operation is closer to the broad definition above than it is to a small or intimate cabaret.

Shortly after they had opened under the new format, Parrillo's owners applied for a discotheque license as required by the Town's ordinance regulating dancehalls. Although the application was denied, defendant continued business as usual. Thereupon the municipal construction code official filed the charges culminating in the conviction under review. The municipal court imposed a fine of $250.00.

On a trial de novo after defendant's appeal to the Superior Court, Law Division, the defendant was again found guilty. That court correctly framed the issue as whether "a change from a business primarily conducted as a restaurant with incidental dancing and serving of liquor [can] survive the proscription of the prohibiting ordinance when the character of the operation shifts to a form primarily conducted as a dance hall with the serving of liquor and incidental eating." That court determined that the evidence adduced could "lead to no other conclusion" than that there had been a prohibited extension of a nonconforming use, and likewise entered a judgment of conviction.

The Appellate Division reversed. The error in that result is rooted in the court's approach to the case, which was to review separately each ...


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