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Scotti v. Westfield Zoning Board of Adjustment

May 29, 2009

JEFFREY SCOTTI, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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