On appeal from Superior Court of New Jersey, Law Division, Salem County.
Approved for Publication February 24, 1997.
Before Judges Michels and Coburn. The opinion of the court was delivered by Coburn, J. S.c. (temporarily assigned).
The opinion of the court was delivered by: Coburn
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
This is an appeal from a judgment of the Superior Court, Law Division, affirming a decision of the Zoning Board of Adjustment for the Township of Elsinboro. Plaintiff applied to the zoning board pursuant to N.J.S.A. 40:55D-68 for "certification that the use" of a field on his family's farm as an airstrip "existed before the adoption of the ordinance which rendered the use . . . nonconforming." Ibid. After a plenary hearing, the zoning board refused to issue the certificate. Plaintiff filed an action in lieu of prerogative writs in the Law Division, lost there, and now appeals to this court. He contends the decision of the zoning board should have been reversed by the trial court for two reasons: (1) the governing body of the Township of Elsinboro, through its attorney, appeared before the zoning board in opposition to the application; and (2) the zoning board's decision was arbitrary, capricious, and unreasonable. We disagree with plaintiff's contentions and affirm the judgment.
The Township of Elsinboro's first land use ordinance, adopted in 1966, did not address the subject of airstrips directly or indirectly. Section 601 of the 1968 land use ordinance permits in plaintiff's zone "customary and conventional farming operations . . . ." Section 1101 of this ordinance prohibits in each zone all uses not expressly permitted, thereby indirectly prohibiting airstrips in plaintiff's zone. It further provides, "the lawful use of land . . . existing at the date of the adoption of this Ordinance may be continued, although such use . . . does not conform to the regulations specified by this Ordinance for the zone in which such land . . . is located," provided that "no non-conforming use may be expanded."
According to the testimony, in 1979, the governing body adopted an ordinance which permitted as a conditional use in plaintiff's agricultural zone a "basic utility airport." The concept was not otherwise defined.
On January 1, 1992, the governing body adopted Ordinance 82-1 declaring that "basic utility airports be eliminated as a conditional use . . . ."
According to plaintiff's testimony before the zoning board, his family's farm contains 135 acres. On the farm's southern boundary, abutting Walnut Street, is an unimproved field which plaintiff said was a utility airport or airstrip used by himself, his family, and friends since somewhere between 1958 and 1962. On rare occasions, helicopters used the field. On all other occasions, the craft were small, single engine, fixed wing airplanes. Plaintiff wanted to use the field for airplanes about five to twenty times per year. He claimed that had been its annual use. In 1989, the Township's zoning officer directed no further use of the field as an airstrip.
Plaintiff was forty-eight years old at the time of the zoning board hearing. His family had owned the farm since 1950. He said he got his pilot's license around 1966. He did not land any planes on the field from 1958 to 1962. The first plane in which he had an ownership interest was acquired sometime after 1974. It was not kept at the farm. He was in the military from 1966 through 1969, and during that time he would visit the farm six or seven times a year. Later he changed that to two or three times a year after it was brought out that he had been stationed in California, Nevada, Louisiana, and Texas, but then he reasserted that the visits happened about six times per year. When asked how he arrived at the figure of five to twenty times per year for use of the field as an airstrip, he said: "I could legally say it was more than one and less than a thousand. I know it was more than one and less than a thousand." He admitted that he had not seen someone land there at least once in every year. He was asked, "So, there has been at least a five year period when no airplanes landed there?" He replied, "Yeah, but not constant." He was then asked, "So, at least once every 10 years, you personally observed an airplane land?" He replied, "I would say that." He also indicated the field was rented to other farmers who raised corn and other crops there and that planes would land on the crops without damaging them. He could not recall whether a helicopter landed there from 1970 to 1992. He also indicated that planes landed on various parts of the farm over the years, though he claimed they mostly landed on the field in question.
The next witness called by plaintiff, a Mr. Bacon, testified that he saw planes land on the site no more than three or six times from 1971 to 1989.
Plaintiff's father, Ray Paruszewski, testified that friends started landing planes on the field in the early 1960's. He said that sometime there would be landings 3 or 4 times a month and sometimes a month would go by with no landings. He said there was some usage every year until 1989. In answer to a leading question, he agreed with his son's estimate of five to twenty landings per year, but also said he did not recall exactly. He said his other son, Jeff, used the field for landings from 1968 (when the family purchased a plane which was kept at Salem Airport) until 1974. He also said the field in question had been used for growing crops every year since 1951. No one in the family owned a plane before 1968.
A number of witnesses testified in opposition to the application. One indicated that he lived across the street from the farm and was home and outside most of the time. In the preceding thirty-eight years, he had only seen four planes and one helicopter use the field. Another witness, an abutting neighbor since 1974, said she saw no planes and her husband saw one. The last opponent said she had lived within about 400 feet of the field for twenty-seven years until she moved away in 1987 or 1988. During that time, the field was used by planes only once or twice, the last use occurring more than five years before she left.
The zoning board adopted Resolution No. 94-11-01 which recounted at length the testimony of the various witnesses and then concluded that the application should be denied for the following reasons:
It is clear that there has been aircraft activity at the Paruszewski farm which activity pre-dates the original Township Zoning Ordinance which was adopted on February 27, 1968. While the applicant testified that this activity was fairly frequent, between 5 and 20 times per year, much of his testimony was contradicted by neighbors and his father. In addition, the Board concludes that much of the testimony of the applicant is not credible. * * * Although all of the other witnesses testified that there was aircraft activity on the Paruszewski farm, the credible testimony is that it began in approximately 1960 and was very sporadic. * * * The neighbors, some of whom lived across from the . . . farm for 30 years, testified that the number of take-offs and landings were (sic) very low and characterized them as unusual events which attracted their attention. * * * This activity did not rise to the level of a principal or accessory use for the property. * * * The sporadic, occasional landing of aircraft on the . . . field would not customarily be incidental to the principal use of the property nor is it so necessarily or customarily associated with the principal use to be expected that the Township Zoning Ordinance could not have been expected to prohibit it. * * * The aircraft activity which occurred . . . prior to the adoption of Ordinance No. 68-1 [the 1968 Ordinance] does not attain the level of a principal or accessory use subject to protection pursuant to N.J.S.A. 40:55-68 and Section 3.6 of the Township Land Development Ordinance.
The party asserting the existence of a nonconforming use prior to the adoption of the relevant zoning ordinance has the burden of proof. N.J.S.A. 40:55D-68; Weber v. Pieretti, 72 N.J. Super. 184, 195, 178 A.2d 92 (Ch. Div.), aff'd, 77 N.J. Super. 423, 186 A.2d 702 (App. Div. 1962), certif. denied, 39 N.J. 236 (1963). When the zoning board rejects an application to certify a use as nonconforming that decision is entitled to judicial support if ...