On appeal from the Superior Court, Law Division, Monmouth County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
This matter comes before the court on appeal from the Superior Court, Law Division, which at a trial de novo on the record on an appeal from the Municipal Court of the Borough of Monmouth Beach convicted defendant of four violations of Monmouth Beach municipal ordinances.*fn1 The four complaints charged one violation of the municipal land use and development ordinance by use of a building in a single-family residential zone at Ocean Avenue, Monmouth Beach, for a multi-family structure, and three violations of the same ordinance by permitting three apartments in the building to be occupied without occupancy permits. The complaints were signed by Louis Consentino, the municipal building inspector and zoning officer.
Plaintiff called only one witness in the municipal court, Consentino. On direct examination he testified that since 1972 he had been the municipal building inspector and zoning officer. He stated that on February 26, 1981 he inspected defendant's property at 1 Ocean Avenue. At that time he found the building divided into three separate apartments. The property was within an "A" residential district. There were no certificates of occupancy for the uses at the time of inspection. On cross-examination he said that his records indicated that defendant had purchased the property in 1973. Consentino said that he had first inspected the property in 1972, at which time it was
being used as a single-family dwelling. On further cross-examination he said that he really couldn't remember if there were separate living accommodations in the building. He said that the ordinance which defendant was violating had been adopted January 1, 1979. He later again indicated that he thought the property had been used as a single-family dwelling before 1979. He further indicated that numerous certificates of occupancy had been issued for the building in the past. Overall, his testimony did not present a clear picture of the use of the property before 1979.
Defendant's first witness was a Mrs. Helstrom.*fn2 She indicated that she was familiar with the property because her parents had purchased it in 1944 and had owned it for about 20 years. She frequently visited the property during that 20 years. She said it was "like a cook yourself hotel, motel." She said when her parents first acquired the property they lived in it. Other families also lived in the building. Some were related to her parents but some were not. The tenants paid rent. This usage continued for 20 years. At that time Helstrom and her sister and their respective husbands acquired the property. They sold it after two years. During the two years they used it as apartments.
Defendant testified. He said he acquired the property in 1973. Before the purchase he inspected it. It was divided into apartments but was in a run-down condition. It was not then occupied. Defendant fixed up the property. He started using it for multi-family purposes. There were numerous changes in the tenants. Ultimately he was refused certificates for occupancy. Remarkably, neither party introduced into evidence or asked the judge to take judicial notice of any zoning ordinance effective before 1979.
The municipal judge found defendant guilty. He stated that he had expected evidence of use during the period after Helstrom
sold the property and before defendant acquired it. In the absence of such proof there was a time when the evidence did not show that the multi-family usage continued. In these circumstances he found defendant guilty.
Defendant then appealed to the Superior Court, Law Division. The Superior Court judge, after hearing argument from counsel, gave an oral opinion. He reviewed the testimony. He stated, citing Heagen v. Allendale , 42 N.J. Super. 472 (App.Div.1956), that the "initial burden" in a zoning case to justify a use inconsistent with the existing ordinance is upon the party asserting the legality of the use. The judge then held that plaintiff had proven beyond a reasonable doubt that the property was being used as a multi-family premises contrary to the existing ordinance. He indicated that the burden shifted to defendant to prove by a preponderance of the evidence that the property was being used in the same way when the ordinance was passed and that the use was lawful at that time. He pointed out that defendant had failed to present any evidence that the use of the building as a multi-family dwelling was lawful at any time prior to January 1, 1979. Accordingly, he found defendant guilty. Defendant appeals to us from that judgment of conviction.
The substantial question raised on this appeal relates to whether the property was a valid nonconforming use as a multi-family dwelling before January 1, 1979. It is clear from plaintiff's brief that it does not suggest that the property was not in fact being used for apartment purposes before that date. Rather plaintiff asserts that such use was not shown to be lawful.*fn3 The thrust of plaintiff's argument is that ...