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Markovitch v. New Jersey Meadowlands Commission

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 10, 2008

IN RE APPLICATION OF JOHN MARKOVITCH, T/A BENMARK CONSTRUCTION, APPELLANT,
v.
NEW JERSEY MEADOWLANDS COMMISSION, RESPONDENT.

On appeal from a Final Decision of the New Jersey Meadowlands Commission, NJMC 06-77.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 14, 2008

Before Judges Cuff and Lisa.

John Markovitch, t/a Benmark Construction (Benmark), appeals from a final decision of the New Jersey Meadowlands Commission (Commission). The Commission decided that Benmark's proposed use was to operate a contractor's yard and the use was not permitted in the zone in which Benmark's property is located. We affirm.

By letter dated July 1, 2005, Benmark contacted the Commission through its representative, George Cascino, regarding the prospective use of property owned by Benmark within the Hackensack Meadowlands District in Secaucus. The property is located in the Light Industrial A zone. Cascino submitted a site plan that included an 8760 square foot steel building with a gravel floor throughout the warehouse portion of the structure, a two-story 1850 square foot office, 9400 square feet of landscaping predominately in the front yard, 6883 square feet of paved access drives, and a fifty-foot buffer along the rear property line with Penhorn Creek.

On June 27, 2006, Cascino submitted a formal request for an interpretation of the Commission's zoning regulations. Cascino explained that the proposed building would house equipment used in Benmark's construction business. Cascino further stated that the proposed use of the building "fits within the definition of 'warehouse' and, as such, is a permitted use as listed at 19:4-5.73(a)(22) of the regulations, and as warehouse is defined at 19:4-2.2 of the regulations." Cascino further explained that the request for an interpretation was occasioned by prior consultations and discussions with Commission staff and the opinion of the Office of the Chief Engineer that the primary use of the property would be a contractor's yard and that such use was not permitted in the Light Industrial A zone.

Commission staff recommended that the Board of Commissioners (Board) interpret the use of a building to store construction equipment and material as a contractor's yard or facility, a non-permitted use in the zone, rather than a warehouse and distribution facility, a permitted use. Following presentation of its position at a regularly scheduled meeting, the Board adopted a resolution that found that the proposed use at the premises is a "contractor's facility/yard," and cannot be considered a warehouse/distribution use. The Board also found that Benmark is required to apply for a use variance to utilize the premises as proposed.

On appeal, Benmark argues that N.J.A.C. 19:4-5.73(a)(22) permits the proposed use as a matter of law, that the Commission improperly delegated its interpretative decision-making authority to its staff, and that Benmark was entitled to an evidentiary hearing. Benmark recognizes that the Commission's decision is entitled to deference but contends, in this case, the Board deferred entirely to its staff. The Commission responds that Benmark proposed a contractor's yard use that is not permitted in the zone in which the property is located, that the Commission properly utilized its staff and did not delegate decision-making authority to it, and that an evidentiary hearing was not required to decide this application.

At the outset, we hold that an evidentiary hearing was not required. Benmark concedes that the facts were not disputed. It outlined the proposed use for the structure it wished to construct. It informed the Commission about the nature of its business and the equipment it intended to keep within the building. The only dispute concerned the nature or characterization of the intended use to be conducted at the site.

The Light Industrial A zone is "designed to accommodate on large lots a wide range of industrial, distribution, commercial and business uses that generate a minimum of detrimental environmental effects." N.J.A.C. 19:4-5.72. Permitted uses include automobile rental facilities, minor automobile repair facilities, automobile sales, banks, car washes, indoor commercial recreation facilities, day care facilities, parks or recreation facilities, light industry, offices, self-storage facilities, wholesale establishments, and warehouse and distribution facilities. N.J.A.C. 19:4-5.73. Benmark and its representative, Cascino, correctly determined that Benmark could not use the Secaucus site for its business unless it qualified as a warehouse or distribution facility.

N.J.A.C. 19:4-2.2 defines warehouse and distribution facility as "an establishment primarily used for the storage, loading, unloading and/or distribution of goods, products, or materials, which may include accessory consolidation, repacking and value-added services. Such facility may include accessory parking and storage of trucks and trailers, and accessory maintenance of trucks owned by the facility." The same regulation defines contractor's yard or facilities as "a facility used for the provision of general contracting services associated with businesses including, but not limited to, general construction and landscaping trades, which may include office and workshop areas and areas for the storage of equipment and/or materials used in association with the contractor's business."

The Commission asserts that the plain meaning and intent of the definition of warehouse and distribution facility is that the storage of goods is the principal use of the site. Further, the majority of the space within the facility is intended to store goods prior to distribution for use by others. A plain reading of the definition supports this contention. The wording of the definition also suggests that the storage and transfer of goods is intended as the primary rather than incidental use of the facility. All other references within the definition expound on this proposition. By contrast, the definition of contractor's yard contemplates on-site materials such as trucks, loaders and bulldozers, pipes, lumber, gutters, excavating equipment, and shovels for use in the occupant's business rather than intended for distribution to others for their use.

The Commission is a State agency and our review of its decisions is limited. Infinity Broad. Corp. v. N.J. Meadowlands Comm'n, 187 N.J. 212, 215 (2006); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We will not disturb an agency action unless the agency has exceeded its authority, or failed to base its decision on substantial evidence in the record, or misapplied the law to the facts and in doing so reached "a conclusion that could not reasonably have been made on a showing of the relevant factors." Brady, supra, 152 N.J. at 211.

Generally, an agency decision carries with it a presumption of reasonableness. City of Newark v. Natural Res. Council Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). This presumption of reasonableness is particularly applicable when the agency is asked to interpret zoning regulations. Wyzykowski v. Rizas, 254 N.J. Super. 28, 38 (App. Div. 1992), aff'd in part, modified in part, 132 N.J. 509 (1993). We accord deference to zoning decisions, including interpretations, because the agency is presumed to be intimately acquainted with the rules it has adopted and the area in which those regulations apply. Ibid.

Benmark is a general contractor. At the time it submitted its application for an interpretation, its place of business was located in the Intermodal B zone, which permitted contractors' yards. It is undisputed that Benmark currently keeps much of the heavy equipment used in its business as a general contractor outdoors and that this method of equipment storage is permitted in the zone. It does not dispute that its current operation is a contractor's yard. Benmark informed the Commission that it intended to continue its established business operation at the Penhorn Avenue, Secaucus site. Specifically, it intended to use the proposed 8500 square foot structure to house the equipment used by it in the ordinary course of its general construction business. In other words, the proposed structure would allow it to keep its equipment, including heavy equipment, indoors rather than outdoors. The mere ability to keep equipment used in the on-going operation of a general construction business inside rather than outside does not transform the use from a contractor's yard to a warehouse and distribution facility. Use is defined with regard to the activity performed at the site, not the placement of equipment used in the day-to-day operation of the business.

Commission staff issued their recommendation based on their knowledge of Benmark's current activities and the information provided by Benmark in support of its application. The Office of the Chief Engineer ultimately opined that the proposed use was that of a contractor's yard rather than a warehouse and distribution facility. This interpretation was entirely consistent with the express terms of the district zoning regulations adopted by the Commission, the description of the proposed use, and the current operation of the applicant's business. Unlike In re Amico/Tunnel Carwash, 371 N.J. Super. 199 (App. Div. 2004), Commission staff investigated the application and made a recommendation. The Commission retained and, in fact, exercised the ultimate authority to decide the issue presented by Benmark.

Affirmed.

20080410

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