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Nouhan v. Board of Adjustment of the City of Clifton

April 19, 2007

MARK A. NOUHAN, CHARLES AND PHYLLIS NOUHAN, ROGER AND JUNE FRANCIS, GINA HATHAWAY, PAUL AND MONIKA KOMOSINSKI, JOHN AND DONNA RAINERI, AND ELLEN STEPHENS, INDIVIDUALS, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON, DEFENDANT-RESPONDENT,
AND RICHARD HANKE AND RICHARD'S BEEF & BREW, INC. DEFENDANTS/INTERVENORS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2813-05.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 13, 2007

Before Judges Skillman, Holston, Jr. and Grall.

Intervenor Richard's Beef and Brew, Inc., d/b/a Pub 46 (Pub 46), operates a restaurant and entertainment facility on a small parcel of land on Route 46 in Clifton. Pub 46's authorization for operation of the restaurant is provided by a special exception granted by the Clifton Board of Adjustment in 1974.*fn1

This special exception allows Pub 46 to operate a restaurant with seating for eighty-eight persons.

The ordinance in effect when the special exception was granted required thirty-four parking spaces for a restaurant with this capacity. The special exception provided that this requirement would be satisfied by Pub 46 maintaining a total of forty-one parking spaces, of which twenty-two would be on its own property and nineteen on an adjoining Amoco gasoline station property. The special exception further provided that when the lease with Amoco for the nineteen parking spaces terminated, the special exception allowing operation of a restaurant with seating for eighty-eight persons also would terminate.*fn2

Around 2000, Pub 46 began operating not only a restaurant but also a discotheque-nightclub business on the premises. This business is conducted at night after normal restaurant operating hours. Pub 46 operates this business under the purported authority of an entertainment license issued by the Clifton governing body.

The discotheque-nightclub business involves the playing of music by a band or disc jockey, dancing and the playing of pool. This business attracts substantially more patrons than Pub 46's authorized restaurant seating capacity, and as a result, the forty-one parking spaces required under the 1974 resolution authorizing the restaurant are insufficient during the discotheque-nightclub's hours of operation.

Plaintiffs, who reside near Pub 46, complained to the Clifton zoning officer that the use of the premises for a discotheque-nightclub was not authorized by the zoning ordinance or the 1974 special exception permitting the premises' use as a restaurant and asked him to undertake enforcement action to prevent this nonconforming use. Despite repeated requests by plaintiffs, the zoning officer failed to take any action. Consequently, plaintiffs filed an application with the Zoning Board for interpretation and enforcement of the zoning ordinance and the special exception.

At the hearing before the Board on the application, plaintiff Mark Nouhan, who owns and resides in a home directly behind Pub 46, testified that the operation of Pub 46 has "morphed" from a "restaurant" into a "nightclub." He stated that patrons are entertained by bands or disc jockeys playing music, the parking lot is noisy late at night, and beer bottles and condom wrappers are thrown over a fence surrounding the property. At the suggestion of plaintiffs' counsel, Nouhan went to Pub 46 on a weekend, at approximately 11:30 p.m., and made the following observations:

You walk into the door, there's a number of tables. There's a bar. And you walk to the left, the band area, and some of the dancing area, another bar in back, a pool table, some more seating areas.

What I saw was a bunch of people in there, drinking, some sitting, some standing, some dancing, some singing along with the music, some playing pool. . . .

Nouhan also testified that a band was playing music and 95% of the patrons were just drinking and not eating food when he visited the premises.

The Zoning Officer, Daniel Howell, stated that he has never gone to Pub 46 at night and therefore was not in a position to testify about the nature of the business Pub 46 conducts after 9 p.m. Pub 46 did not present any witnesses ...


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