Before Judges Brochin, Eichen and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal for Superior Court of New Jersey, Law Division, Monmouth County.
We have previously recognized a limited exception to the general rule against expansion of a prior nonconforming use, where that use is the mining of a finite resource, also described as a "diminishing asset." See Township of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320 (App. Div. 1994), and Moore v. Bridgewater Twp., 69 N.J. Super. 1 (App. Div. 1961). In this opinion, we will address the scope of the diminishing asset exception to the general rule limiting expansion of a prior nonconforming use.
The Wall Township Board of Adjustment rejected plaintiff's application to declare that plaintiff's prior nonconforming use of portions of its 295-acre lot to mine sand and gravel entitled it to extend the mining operation to its contiguous 211-acre lot. On plaintiff's appeal, the Law Division Judge rejected the Board's determination and declared plaintiff's right to mine on both lots as a prior nonconforming use. Defendants now appeal, and we reverse.
As a prerequisite to obtaining a license to mine the second lot, plaintiff, Fred McDowell, Inc. sought a declaration from the Board of Adjustment that mining was permitted as a prior nonconforming use of that lot. The Board denied the requested declaration, finding no prior nonconforming use of the second lot or, in the alternative, finding that plaintiff had abandoned any prior nonconforming use of that lot.
Plaintiff brought an action in lieu of prerogative writs challenging the Board's decision. In a written opinion dated December 21, 1998, the Law Division Judge concluded that the Board "abused its discretion" and therefore was "arbitrary, capricious and unreasonable" when it determined that mining was not a valid "pre-existing, non- conforming right" on the 211-acre lot. Judgment therefore was entered for plaintiff, declaring mining a prior nonconforming use of the 211- acre lot. We disagree with the judge's application of Likanchuk's and Moore to the undisputed facts in the record, which we conclude are sufficient under the law to support the Board's decision. We therefore reverse and reinstate the Board's resolution denying plaintiff's right to mine the 211-acre lot.
McDowell has conducted a mining operation, extracting sand and gravel from its land in Wall Township, since the 1940's. McDowell separately purchased the lots in question, referred to by all parties as Lot 5 (the 295-acre lot) and Lot 7 (the 211-acre lot), in January 1944 and November 1944, respectively. Lot 5 was mined by a prior owner as early as the 1920's.
Wall Township passed its first zoning ordinance in 1955, placing Lots 5 and 7 in a zone in which mining is not permitted. In 1956 the township passed a mining ordinance requiring an annual license to excavate any natural mineral deposit. An ordinance regulating the grading of land and commercial removal of soil was adopted in 1966. *fn1
Interstate Highway I-195 was completed in 1976 along the boundary between Lot 5 and Lot 7. Prior to the highway construction, plaintiff maintained a scale, a weigh house and a maintenance building on Lot 7 to serve the mining operation on Lot 5. Plaintiff also used an access road through Lot 7 connecting Lot 5 to Route 34. After construction of I- 195, plaintiff discontinued its use of the support facilities on Lot 7, including the access road.
Until the mid-1980's, McDowell repeatedly obtained mining licenses covering both Lots 5 and 7 (as well as several other lots) and actually mined a portion of Lot 5. The ordinance was amended in 1986 to provide for two-year licenses and to require a separate license for each lot.
When McDowell applied in 1988 to renew its mining license for the next two-year term, the Township Committee approved McDowell's request to mine Lot 5, denied McDowell's application for a license for two other lots *fn2 and for the first time concluded with respect to Lot 7:
"[T]he Township Committee finds that with respect to Lot 7 a mining license should not be issued at this time, but that the applicant should be permitted to submit an appropriate application at a later date should it wish to perform mining operations on that Lot." The Committee noted that McDowell had not submitted all of the documents required by township ordinances. In 1991 and 1993, McDowell again applied for a mining license for Lot 7; those applications were similarly rejected for insufficient documentation, while the Township continued to approve licenses for Lot 5. In 1995 plaintiff's application for a license again was granted as to Lot 5 but refused as to Lot 7, "without prejudice." It is the 1995 refusal that ultimately resulted in this appeal.
The licensing authority had sought, among other documentation with respect to Lot 7, a plan certified by the Freehold Soil Conservation District (the District) for soil erosion and sediment control covering the "rehabilitation" of the areas plaintiff intended to mine. *fn3 In 1995, along with its license application, plaintiff submitted a letter from the District indicating that no soil erosion plan was required because plaintiff proposed no mining on Lot 7 during the next two years. Nevertheless, plaintiff later submitted an approved soil erosion plan to the Board. Thereafter, when plaintiff inquired why it had not received a mining license for Lot 7, the township attorney responded by letter referencing the 1989, 1991 and 1993 resolutions denying a mining license for Lot 7. Eventually the Township Administrator referred McDowell to the zoning board to seek a determination that it had a prior nonconforming right to mine Lot 7.
In its application to the Board, plaintiff did not claim that Lot 7 was actually mined prior to the enactment of the 1955 zoning ordinance. Plaintiff's application relied instead upon two arguments. First, plaintiff argued that Lots 5 and 7 were a single tract, such that the undisputed mining use of Lot 5 prior to enactment of the zoning ordinance established McDowell's right to mine or quarry sand and gravel on the entire tract, that is, throughout Lots 5 and 7. Second, plaintiff relied on its alleged pre-zoning-ordinance use of Lot 7 for certain support operations as an independent ground for declaring prior nonconforming use status to Lot 7 for actual mining.
In determining whether McDowell had established a prior nonconforming use of Lot 7 as of the date the Township passed its zoning ordinance, the primary questions before the Board were (1) whether Lot 7 was part of a single tract including Lot 5, on which extraction of sand and gravel was being carried on before 1955 and as to which plaintiff had objectively manifested its intention to extend its operation to its claimed "reserve," including Lot 7; or (2) whether plaintiff's support activity on Lot 7 by itself established a prior nonconforming use as a sand and gravel mine.
Our task, as was the Law Division Judge's, is to determine whether the Board's negative answer to both those questions was supported by sufficient credible evidence and therefore was neither arbitrary, capricious or unreasonable. We conclude that the record supports the Board's conclusion that McDowell's proofs were insufficient to support either of its arguments. We therefore need not address the Board's alternative finding of abandonment as a ground for denying plaintiff's right to mine Lot 7.
An evidentiary hearing that concluded on March 1, 1998 provided the facts on which the Board relied. McDowell's Vice-President and General Manager for Operations, Frank Fine, testified before the Board regarding the history of McDowell's use of Lots 5 and 7. The only evidence adduced at the hearing was that offered by plaintiff, and the factual testimony and documents offered by plaintiff are not disputed. What is disputed is the interpretation of Likanchuk's and Moore and the application of those decisions to these facts.
These are the additional relevant facts appearing in the record. Mining began on a small portion of Lot 5 in the 1920's. After plaintiff purchased Lot 5 in 1944, it continued to mine "high quality sand" and gravel on a small portion of Lot 5. There was little demand for those materials in the 1940's and therefore only a small volume of material was mined. Demand increased in the 1980's, such that "maybe thirty or forty acres" were mined in that decade, and "in '96, in '95, [plaintiff] mined a lot more than ... in '97." As to the rate at which Lot 5 had been mined, Fine "would guess in the last couple of years, we've mined about twenty acres. . . ." He testified that approximately one hundred to one hundred fifty acres of Lot 5 had been mined as of January 1998.
At an unspecified date, a scale and scale house and a maintenance shop and storage area for the mining equipment were constructed on Lot 7. However, after I-195 was finished in 1976, it became impractical to access Lot 5 from Lot 7, and plaintiff abandoned ...