July 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD C. MILLER, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 30, 2009
Before Judges Cuff and Fuentes.
Defendant Richard C. Miller, Jr., appeals from the dismissal with prejudice of his appeal*fn1 in the Law Division following a trial de novo on his municipal court conviction of operating a commercial shop in a residential zone in violation of Section 133-38 of the Morristown Zoning Ordinance. Defendant resides in a single family house at 43 Washington Place in Morristown. A detached garage is also on the property. The property is located in the R-2 zone. This zone is a residential zone in which only detached single family homes are permitted.
In response to complaints, the Morristown zoning officer visited the site. Defendant received a citation for operating a business in the detached garage. Following another inspection on April 13, 2006, the zoning officer issued a summons charging defendant with operating a motorcycle repair and body shop in the detached garage in violation of Municipal Ordinance Section 133-38.
Repeated inspections of the garage revealed heavy and commercial equipment, including a commercial oven, dull presses, a powder coating booth with a fan to vent the building, air tubes, propane tanks, motorcycle frames, chemicals and other tools. A vehicle parked regularly at defendant's house bears a sign "Custom Powder Coating Morristown, New Jersey 973-984- 6887." The telephone number is assigned to defendant and when called, the person who answered the call said "Custom Powder Coating." A sign affixed to the front door directed deliveries to the "Shop . . . located in the Rear."
Defendant concedes he holds a patent for a motorcycle design, that he fabricated the prototype in the garage, and hopes to sell the design to an established motorcycle company. He asserted, however, that he used the garage to pursue his hobby, not to conduct a business. Defendant admitted he had adopted the trade name Lonesome Road Choppers.
Following de novo review of the municipal court record, Judge Harper found defendant was operating a business in the detached garage of a single family home located in a residential zone that does not permit any business use. Judge Harper found:
[T]he defendant fabricates motorcycles, fenders, struts and gas tanks, powder coats these prototype designs in the powder coat oven on the premises, and is attempting to have Harley-Davidson or Kawasaki put his prototype into mass production. Defendant submits that he is a motorcycle enthusiast who engages in these activities as a hobby.
New Jersey courts have held that the following residential uses for structures on residential lots are permissible. Parking of four or five antique cars on residential property is part of the owner's collection of such cars, Chatham v Donaldson, 69 N.J. Super. 277 at 282 (App. Div. 1961). A 60-foot ham radio tower, Wright v Vo[gt], 7 N.J. 1, (1951). And the maintenance of a racing pigeon coop, [C]olts Run Civic Association v Colts Neck [Township] Zoning Board of Adjustment, 315 N.J. Super. 240 (Law Div. 1998).
Here, however, the Court agrees with the State. The defendant testified at trial that he fabricated motorcycles or at least motorcycle parts, such as gas tanks and fender struts on the premises with the ultimate goal of licensing the prototypes and selling them to either Harley-Davidson or Kawasaki for mass production.
Defendant also testified that he has entered into agreements with various motorcycle companies that require that he fabricate various prototypes prior to potentially selling the models on a mass scale. . . .
Moreover, defendant stated that he developed the trade name and website, "Lonesome Road Choppers", so that he could more easily gain admittance to motorcycle shows, and ultimately get his patented designs licensed. Similarly, the "Custom Powder Coating" sign on the Bronco and the business card by the same company relates to a company used by defendant to enjoy free parking at the motorcycle shows where he markets these motorcycle prototypes. Defendant even holds an account at the Wachovia Bank in the name of Custom Powder Coatings. . . .
In short, his enthusiasm for motorcycles may have started as a hobby, but defendant "treats this hobby as a business enterprise."
Unlike the Law Division judge, this court does not make findings of fact based on the municipal court trial record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Our review is limited to determining whether the findings of fact are supported by substantial credible evidence in the record and whether the judge identified and applied the correct legal principles to the facts as found. Id. at 471. We are satisfied that the facts found by Judge Harper are supported by substantial credible evidence in the record and he applied the correct legal principles. We, therefore, affirm the judgment substantially for the reasons expressed in his December 7, 2007 oral opinion.
We note, however, that the January 2, 2008 final order provides that defendant's appeal is dismissed with prejudice. Judge Harper found defendant guilty of the municipal code violation and imposed the same sentence as the municipal court, i.e., a $500 fine. The January 2, 2008 order or judgment following de novo appeal should have reflected Judge Harper's ruling. As it stands, there is no written document memorializing the finding of guilt or the sentence. If the municipal appeal was dismissed, this court would lack jurisdiction. We review only adjudications. We remand for entry of an amended order or judgment. In all other respects, we affirm.
Affirmed; remanded for entry of amended judgment.