On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1311-08.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 23, 2009
Before Judges Stern, Collester and Sabatino.
Plaintiff, Berkeley Square Associates, appeals from a judgment of December 15, 2008, granting summary judgment to defendants and dismissing its complaint with prejudice. The case deals with the issuance of permits to "rehabilitate" a twenty-unit residential apartment to defendant Michael Barminko. Plaintiff neighborhood association opposed the "reconstruction" on the grounds the underlying nonconforming use had been abandoned as a result of a tax foreclosure and the building's subsequent vacancy and disrepair. Plaintiff argues that "a tie vote by a land use board [leaving intact the Zoning Officer's action in issuing the permits] constitutes a finding that a nonconforming use has been abandoned," that there was a "conclusive, or at least a rebuttable, presumption of abandonment," because the building was vacant for more than 18 months, and "there were insufficient facts in the record to permit the Board of Adjustment... to find that the nonconforming [use of the building] was not abandoned."
On November 15, 2007, defendant Michael Barminko submitted plans to and sought permission from the Trenton Zoning Officer to rehabilitate a twenty-unit apartment building at 944 Riverside Avenue. The Zoning Officer ultimately issued permits to renovate. Pursuant to N.J.S.A. 40:55D-70a, plaintiff appealed the Zoning Officer's decision to the Trenton Zoning Board of Adjustment, and sought to overturn the Zoning Officer's determination that the property was a pre-existing nonconforming use. Plaintiff asserted that the nonconforming use had been abandoned.
The Board conducted a plenary hearing on plaintiff's "appeal." By a tie three to three vote, the Board left intact the Zoning Officer's decision.*fn1 Thereafter plaintiff filed a complaint in lieu of prerogative writs in the Law Division, seeking to overturn the Board's decision. The court granted defendants' motion for summary judgment and dismissed the complaint.
In 1955 or 1956, a twenty unit multi-dwelling was constructed at 944 Riverside Avenue in Trenton. Each unit in the building was an efficiency apartment until the 1980's when the owner turned nineteen of the twenty units into one-bedroom apartments. The property is located in Trenton's Residential B Zone, which now permits only single-family dwellings. Trenton's Land Use Ordinance rendering the property a nonconforming use was enacted in 1957.
Ownership of the building was transferred several times. By 1993, the property was not well maintained and began to deteriorate. In 1995, the property was sold to a not-for-profit company, Synergy Capstone Urban Renewal, LLC. After taking ownership of the property, Synergy placed a sign on the premises indicating that it would be rehabilitating the property. However, after Synergy acquired the property all of the tenants moved out leaving the property vacant, and "nothing happened."
Thereafter, the lawn, trees and shrubbery were not maintained, and snow was not removed. Gutters hung off of the building; air conditioning units fell from their "sleeves"; water leaked through the roof, and broken windows went unrepaired. Trash and debris accumulated in the yard up to "six [or] seven feet high" at times. Supports for the overhang in front of the building collapsed and a neighbor repaired it.
Inside the building, fire extinguishers had been sprayed on the walls; graffiti was all over the hallways and windows were broken, boarded and then "kicked out" again. Eventually, the city attempted to secure the building by covering the windows with plywood and occasionally painting the front door, which had been "kicked in," to cover gang markings. Eventually, a steel front door was installed, but there was "still a gap between the jam and the top of the door."
Synergy did not pay taxes on the property, and in 2002, the city placed a tax lien on the building which it later assigned to TransAmerica Bank. In 2002, TransAmerica assigned the tax lien to defendant Queen Equities, a partnership consisting of defendant Barminko and defendants Barry Dershowitz and Jonathan Rubin. Queen Equities foreclosed on the tax lien, acquiring title to the property in 2005.
Thereafter, Queen Equities made repairs to the property including replacing the roof, securing the premises and emptying the building of garbage and former tenants' belongings. It also paid back taxes and other liens amounting to "roughly" $400,000.
According to Rubin, Queen Equities also maintained casualty insurance on the property and hired an architect to draw plans and apply for permits to rehabilitate the building. However, Queen Equities subsequently sold the property to Barminko in 2007. He retained the architect Queen Equities had hired, and on November 15, 2007 applied to the city for the necessary permits to rehabilitate the property. The plans for defendant's*fn2 proposed rehabilitation called for renovation of twenty units ...