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Township of Fairfield v. Likanchuk's

Decided: June 22, 1994.

TOWNSHIP OF FAIRFIELD, PLAINTIFF-APPELLANT,
v.
LIKANCHUK'S, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Chancery Division, Cumberland County.

Before Judges King, Havey and A.m. Stein.

Havey

The opinion of the court was delivered by

HAVEY, J.A.D.

In this zoning case, plaintiff Township of Fairfield filed the present action seeking to enjoin defendant Likanchuk's, Inc., a

long-standing automobile salvage business, from continuing to engage in two nonconforming uses -- sand and gravel mining, and concrete and asphalt recycling. The Chancery Division Judge concluded that defendant may expand its mining operation throughout its entire tract because sand was a "diminishing asset." The Judge also held that the principles of equitable estoppel and laches precluded the Township from enforcing its ordinances to prohibit the recycling activity. We disagree as to both points and reverse.

Defendant owns four contiguous lots identified on the Township tax map as Block 5, Lots 40, 43, 44 and 45. Under the Township's zoning ordinance, adopted in June 1969, Lots 40 and 45 are zoned planned business/light industry and Lots 43 and 44 are zoned agricultural. Automobile salvage yards, gravel mining and recycling are not permitted uses in either zone.

Since prior to the effective date of the ordinance, defendant or its principal Alex Likanchuk has owned the lots, operating an automobile salvage yard as a nonconforming use on the south-west portion of Lot 40. It is undisputed that there has also been earth and gravel removal from the site since prior to 1969, but only on Lot 40. It is also undisputed that the gravel was removed in small quantities, less than 500 cubic yards per year.

In the early 1970's a substantial housing development was constructed contiguous to defendant's property. On December 1, 1987, the Township's then zoning officer, Jared Gould, issued a Certificate of Occupancy/Use to defendant, covering all four lots, stating that the lots "may be used to accept clean fill and demolition debri [sic] for disposal."

Sometime in 1988, Township officials received neighbors' complaints of excavation of sand and gravel. Large amounts of gravel were being removed, sometimes more than 100 truckloads a day. In September 1988, the Township filed the present action seeking to stop defendant's mining operation pending review by the Zoning Board of Adjustment. Interim orders were entered denying the Township's request for temporary restraints, but requiring

defendant to apply to the Zoning Board for a determination as to the pre-existing use question by that body. On February 6, 1992, in response to the Township's enforcement motion, the Chancery Division Judge again directed that defendant apply to the Zoning Board.

During the pendency of the action concerning the mining activity, defendant, purportedly in reliance on the December 1, 1987 Certificate of Occupancy/Use issued by Zoning Officer Gould, applied to the Department of Environmental Protection (DEP)*fn1 for a permit to operate an asphalt/concrete recycling center on its tract. The DEP issued the permit on February 6, 1991, subject to defendant complying with all local ordinances. Sometime in June 1991, the Township Clerk was served by Cumberland County with a notice of public hearing concerning an amendment to the County's Solid Waste Management Plan, which listed defendant as a recycling facility for concrete and asphalt. It is undisputed that Township officials visually inspected defendant's property in June 1991 when asphalt and concrete was being stockpiled on the tract, for purposes of recycling.

On July 28, 1992, the Township moved to restrain the recycling operations. The Chancery Division Judge scheduled a hearing to determine whether the Township's "alleged silence and acquiescence" after the December 1, 1987 zoning certificate was issued and during defendant's DEP permit application process "shall in some way prevent [the Township] from taking action in opposition thereto at this time."

By resolution dated September 23, 1992, the Board of Adjustment, after public hearings, determined that removal of sand and gravel could be continued as a prior nonconforming use but limited to less than 500 cubic yards a year from only Lot 40.*fn2

On the return date of the Township's order to show cause, the Chancery Division Judge first determined that sand and gravel mining was permitted on the entire property as a prior nonconforming use, because the activity involved a "diminishing asset." The Judge also concluded that the December 1, 1987 certificate issued by Zoning Officer Gould was voidable, but not void in the primary sense, since it was issued within the ambit of his duties as a zoning officer. Accordingly, the Judge applied equitable estoppel and laches and held that the Township could not prohibit recycling activity because defendant had ...


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