On appeal from the Superior Court, Law Division, Monmouth County.
Skillman, Kestin and Wefing. Wefing, J.s.c. (Temporarily Assigned). Skillman, J.A.D., Concurring.
[271 NJSuper Page 327] Plaintiff, James R. Ientile, Inc. (Ientile), is a corporation which is engaged in the business of excavation and contracting. Ientile
negotiated an agreement with Thomas Orgo which permitted Ientile to use an 8,000 square foot building located on a 240-acre tract of land which was leased by Orgo and used by Orgo as a farm. The agreement between them permitted Ientile to use this building to repair and service its heavy equipment. An Ientile employee was at the site five days a week working on Ientile equipment and, occasionally, on farm equipment owned by Orgo. Ientile used this location solely for maintenance and repair work; it did not store any of its equipment at the site. Ientile did not pay Orgo in cash for this use. Instead, under the agreement between the two, Orgo was permitted to use Ientile's heavy equipment when he needed it in his farming operations.
Orgo's farm is located in the area of Colts Neck which is zoned "AG." Permitted principal uses within the AG zone include buildings and land devoted to agricultural uses, farms and residences. Permitted accessory uses within the AG zone include barns, tool sheds, greenhouses and customary accessory buildings to farms.
Ientile received four notices that its use of Orgo's barn for equipment repair and service violated the Colts Neck zoning ordinance. In each notice Ientile was directed to abate the violation. Ientile's response was to apply to the Colts Neck Board of Adjustment for an interpretation of the Township's zoning ordinance that Ientile's use of this building was a permitted accessory use since it involved the repair and service of equipment used by Orgo on the farm.
At the Conclusion of the hearing, one Board member introduced a motion that "this as a whole operation is not permitted." The motion was seconded, but in the subsequent vote the Board split three to three, and the motion failed. Another Board member then proposed a motion "that the use of property to repair items or equipment off premises is a permitted use." Prior to voting, this motion was described as proposing an interpretation of the zoning ordinance in favor of Ientile. This motion also received a three to three vote and thus failed as well.
Thereafter, the Board adopted a resolution in which it found that Ientile's use of the property to repair and service its equipment was for the benefit of its own business, and did not serve as an accessory to Orgo's farm. It further found that Ientile's repair of Orgo's equipment and Orgo's occasional use of Ientile's equipment were "merely a substitute for the payment of rent." The resolution concluded that the three-to-three (tied) vote on the motion, which would have effectively approved Ientile's requested interpretation of the Colts Neck ordinance, constituted a denial of the application.
Ientile then filed a complaint in lieu of prerogative writ, which was similarly unsuccessful. This appeal resulted.
The Colts Neck ordinance defines principal use as: "[t]he main purpose for which a lot, structure or building, or a portion thereof is used." The ordinance further provides that a lot may have only one principal use. The ordinance defines accessory buildings, structure or use in the following manner:
[A] building, structure, or use which is customarily associated with and is subordinate and incidental to the principal building, structure, or use and which is located on the same lot therewith . . . .
We agree with the Board of Adjustment of Colts Neck and with the trial court that Ientile's use of this building is not a permitted accessory use under the Colts ...