May 29, 2009
JEFFREY SCOTTI, PLAINTIFF-APPELLANT,
WESTFIELD ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3622-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges Carchman and R. B. Coleman.
Prompted by a summons in the Westfield Municipal Court charging plaintiff Jeffrey Scotti with a zoning violation, plaintiff filed an application with defendant Westfield Zoning Board of Adjustment (the Board) seeking an "interpretation" of the zoning ordinance, N.J.S.A. 40:55D-70(b), and "[r]equest for confirmation that  subject property use as storage lot for contractor's equipment constitutes a pre-existing nonconforming use." N.J.S.A. 40:55D-68. The Board held an extensive hearing at which time a former lessee of the property as well as several neighbors testified. After considering the proofs presented, the Board concluded that, while the property had previously been used as indoor storage of materials and equipment, over time, the use of the property increased in type of use and intensity to the extent that the Board found that the "use is clearly very much different from the prior usage and activities being conducted from the property." The Board denied plaintiff's application.
Plaintiff filed an action in lieu of prerogative writs in the Law Division. Following argument, Judge Barisonek affirmed the decision of the Board. Plaintiff appeals, and we affirm.
These are the relevant facts adduced from the record. The subject property, located at 125 Myrtle Avenue, is approximately 10,450 square feet and contains a large block building situated towards the rear of the property and measuring approximately 2,880 square feet. The property had been owned by various members of the "DiFrancesco family" from at least 1936 through 2000, when plaintiff purchased it. During that time, the large building was utilized as a storage facility.
Commencing in 1985, Robert McInerny rented the property from Anita and Theresa DiFrancesco for the purposes of operating a landscaping business. McInerny used the property to store landscaping equipment. At that time, other businesses also rented space for storage. During the five or six year period in which McInerny rented the property, neither he nor the other tenants stored any vehicles or materials on the exterior of the building. Notably, while McInerny operated his business, he hired plaintiff, who was a teenager at the time.
In 1995, plaintiff rented the property to operate his own construction business, named "Jeff's Landscape Design and Construction." He continued to use the property in the same manner as McInerny. Thereafter, in 2000, plaintiff purchased the property from the DiFrancesco family. While plaintiff's landscaping business offices are located in Cranford, the trucks, shovels, wheel barrows, wet saws, and trailers are stored at the property in Westfield. On the exterior portion of the property, plaintiff stores three dump trucks and two pickup trucks as well as, on occasion, extra materials such as stone or mulch. The business has approximately twenty employees, who arrive at the property at approximately 8:00 a.m. to pick up the trucks and equipment, and return at approximately 5:30 or 6:00 p.m. to drop off the trucks and materials.
Although plaintiff admits that his business has grown, and traffic into and out of the property has increased, his use of the property went unchallenged until June 21, 2006, when Westfield Zoning Officer Kathleen Neville issued to plaintiff a Violation Notice, alleging that plaintiff had improperly expanded the nonconforming business. Thereafter, that notice was withdrawn, and on February 15, 2007, Neville filed a complaint in the municipal court against plaintiff, charging him with a violation of Westfield's Zoning Ordinance.
Before the municipal court proceedings commenced, plaintiff filed an application with the Board seeking "confirmation that [the property's] use as [a] storage lot for contractor's equipment constitutes a pre-existing nonconforming use." As a result of the application, the municipal court proceeding was stayed.
The Board held a hearing to consider the application. During the hearing, plaintiff, McInerny, and several neighbors testified. In addition, the Board relied upon two affidavits produced by Anita and Theresa DiFrancesco. Consistent with the testimony of plaintiff and McInerny, the various neighbors described the use of the property over the years. One of the neighbors, a nearby residential homeowner, noted that plaintiff's business had "gotten very large" over the years and that as a result traffic increased at the site and the roads were damaged. Photographic evidence was provided by the witness, which depicted the intensive use of the property. Another neighbor, also a homeowner, commented that in his opinion the trucks are "not noisy." And still, a third neighbor noted that employees go onto the site throughout the day and that as a result of the number of employees, there are no parking spots available on the street.
During the hearing, plaintiff's attorney said:
We are sympathetic to the concerns of the residents with respect to the truck noise, the potential trucks in the street in the morning and in the evening and so forth. But I stress that that particular aspect of my client's activity at the site is not the purpose of this application. The determination is whether or not this is a pre-existing non-conforming use, and based upon the evidence and testimony submitted, it is. [(Emphasis added).]
Thereafter, the Board's attorney stated that the burden of proof was on plaintiff and that one of the issues that the Board must consider is "[w]hether there has been an illegal extension of the use . . . ."
At the conclusion of counsel's statements, the Chairman made the following remarks:
We certainly heard from several of the neighbors who would argue, but testified that they didn't even know anything was going on at this property. I don't think you can argue that today. There certainly is enough evidence that there are a lot of vehicles that come and go from this property. And, I think the issue on point with the comments from our counsel is, as whether or not this was a more intense use of the property than it was in the past. And I think the argument to that is absolutely yes.
The Chairman added:
The fact that . . . there weren't vehicles parked on the site. There was one trailer outside. Now we're talking about, and we saw pictures to the effect, where we see snow plows, we see a back hoe, we see many trucks. We see five or six cars parked on the site. . . . That is, in my view a complete change in what the activities, that are going on this property.
Following the Chairman's statements and some further colloquy with an "Unidentified Male," the Board voted unanimously to deny the application. And, notably, subsequent to the vote, the following colloquy occurred:
[Plaintiff's Counsel]: Excuse me, Mr. Chairman, thank you, but there is something I have to state so that the record is complete. I was not aware that Ms. [Neville] had prepared a memorandum for the use of the Board pertaining to my client's application until  the Board's attorney began his remarks this evening. As a report of a public official pertaining to a particular application for which I'm the applicant's attorney, I absolutely should have been provided with a copy of that report.
Mr. Chairman: I would agree.
Unidentified Male: For the record, the Board has not relied - since we're on the record, the Board has not relied upon the statements set forth in that affidavit, and its decisions or its ruling in this particular case. [Plaintiff's Counsel]: I am not talking about the affidavit, I'm talking about [her] report. Clear violations.
Unidentified Male: I reviewed the file at the engineer's office, and both the memorandum and the affidavits were in the engineer's file. [(Emphasis added).]
Following the Board's ruling, the Board memorialized its findings in a resolution dated September 10, 2007. Plaintiff then filed a complaint in lieu of prerogative writs.
During the hearing before Judge Barisonek, counsel again argued that the Board's decision exceeded the narrow scope of the application and certification relief sought by plaintiff. In addition, counsel argued that the Board improperly relied upon Neville's report, as well as a copy of the Town's 1932 zoning ordinance, both of which were not provided to plaintiff.
In response, the Board's attorney noted that plaintiff now employs more people, "has trailers outside, dump trucks, backhoes, crews coming and going an [sic] operational hub that has accelerated in the last couple of years . . . ." Addressing plaintiff's arguments, the judge held the following:
1. The affidavits prepared by the DiFrancesco sisters should not have been considered by the Board although they "actually do support [plaintiff's] application in that they show that the property was used as a commercial storage facility prior to 1932;"
2. the zoning officer's memo should not have been considered as evidence by the Board;
3. Plaintiff's allegation that the "Board was confused as to the nature of the application is without merit" because plaintiff's own testimony "supports the position that [there] was a substantial intensification of the use."
Judge Barisonek found that the Board was not "arbitrary and capricious and/or [un]reasonable in denying [plaintiff's] application."
Plaintiff now appeals and again asserts that the Board relied upon improper material (Neville's memorandum to the Board and affidavits from the DiFrancesco sisters) and that the Board misconstrued plaintiff's application by considering the expansion of the use rather than the narrow issue of whether storage was permitted on the site.
We have carefully reviewed the record and affirm substantially for the reasons set forth in Judge Barisonek's thoughtful and thorough twenty-two page oral opinion. We add the following comments.
Although plaintiff sought to limit his application to whether his use was a pre-existing non-conforming use, the Board properly considered and acted on the proofs and materials before it. Cf. Nouhan v. Bd. of Adjustment of Clifton, 392 N.J. Super. 283, 291 (App. Div. 2007) (considering whether a permitted use of the property as a restaurant had "morphed" into the use as a nightclub). The Board's consideration required an examination of the present use of the property, and the application invited such inquiry. The finding of the Board, in essence, was that the use was not the pre-existing nonconforming use but a use that had "morphed" into an expanded nonconforming use. In essence, the present use, as expanded, was different from the prior nonconforming use, and the ultimate decision addressed the very issue presented by the application.
A prior nonconforming use is generally restricted to its character and scope at the time of the adoption of the ordinance, which made it a nonconforming use. See Grundlehner v. Dangler, 29 N.J. 256, 263 (1959). Generally, the use may not be enlarged "except when the change is negligible or insubstantial." Bonaventure Intern., Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002) (citing Palatine I v. Planning Bd., 133 N.J. 546, 565 (1993)). The burden of proving the existence of a pre-existing nonconforming use is upon the party asserting such use. Ferraro v. Zoning Bd., 321 N.J. Super. 288, 291 (App. Div. 1999).
The determination made by the zoning board is dependant on the facts of the particular application. See, e.g., Belleville v. Parrillo's, Inc., 83 N.J. 309 (1980) (holding that a municipal construction code official properly issued a summons to the subsequent owner of a restaurant that existed in the zone as a pre-existing nonconforming use because the owner altered the property to create a discotheque, which was substantially different in nature than the restaurant); Montclair v. Bryan, 16 N.J. Super. 535 (Law Div. 1951) (holding that a homeowner's house, which was originally a multi-family dwelling prior to a change in the zoning ordinances mandating single-family dwellings, could not be converted to a multi-dwelling house after his predecessor converted the home to a single-family use in compliance with the ordinance).
In sum, the Board made proper inquiry into the attendant facts, as well as considering the present use and scope of use of the property, and determined the present use and its scope was not the prior nonconforming use that had previously existed.
We agree with plaintiff, as well as Judge Barisonek, that the Board should not have considered a memorandum issued by the zoning officer or the affidavits submitted by the prior owners; however, as the judge observed, even excluding such consideration, the facts clearly supported the decision of the Board.
Finally, the Board's resolution is deficient. It fails to set forth the votes of the members (as does the transcript) as well as recognize those who appeared and testified at the hearing. We agree with defendant that the resolution need not "be a transcript" of the hearing, but it should reflect in detail what transpired at the hearing and the proofs accepted or rejected by the Board. We do agree that a remand would serve little purpose, but we caution that such indulgences should generally not be afforded a board whose statutory responsibilities are clear.
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