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Roosevelt Avenue Properties, LLC v. Zoning Board of Adjustment of the Township of Ocean

May 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-6024-08PW.

Per curiam.


Argued January 12, 2010

Before Judges Messano and LeWinn.

Plaintiff appeals from the July 17, 2009 judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of Ocean Township (Board), denying plaintiff's application for a certificate of nonconformity pursuant to N.J.S.A. 40:55D-68. We affirm.

We summarize the pertinent factual background from the transcripts of the six-day hearing before the Board. In 1981, plaintiff purchased a four-acre property at 308 Roosevelt Avenue in the Oakhurst section of Ocean Township. Since 1949, the zone in which this property is located has been designated as residential.

Plaintiff's principal is Richard Schibell*fn1 , an attorney whose son, also an attorney with plaintiff's law firm, lives in an apartment on the adjoining property. The structures on the subject property include a house and a garage, which plaintiff described as a "large four-bay commercial garage[,] . . . that was built to accommodate huge vehicles . . . ." Plaintiff and his son use the garage to store vehicles that are exhibits in their court cases; plaintiff also "stored vehicles that were owned by [him] personally and owned by others that were in [his] employ. There were several limousines stored on the property for years." He "also did repair work initially." In addition, plaintiff and his son use two of the garage bays as "shelving for [the] files from [their] law office."

In July 2006, plaintiff first received notice that use of the property for commercial purposes was prohibited. Plaintiff thereupon filed two applications with the Board, one "to confirm [the] validity of [the] premises as a pre-existing non[]conforming use" under N.J.S.A. 40:55D-68, and the other for a use variance pursuant to N.J.S.A. 40:55D-70(d).

Plaintiff described the purpose of his application as "for utilization of the premises as they are currently being utilized, which is an occasional storage of . . . vehicles used ancillary to [his law] practice." He stated that he was "using it as a commercial garage for [his] purposes. But it is not open to the public for commercial use."

Plaintiff also stated that he wished to store office files in the garage; however, he characterized that as an "ancillary use" to maintaining "a commercial garage." He explained that he desired to store vehicles and parts connected to his firm's cases where "mechanical factors were considered an issue on death or substantial injury cases," adding that these items were "stored either in or out or both of the garage, depending upon limitations and availability." Plaintiff pointed out that the garage "was constructed to accommodate . . . four 18-wheelers . . . [and] heavy engine hoists that would lift . . . enormous engines . . . . It was also equipped with a full metal shop and a full bench with all the tools that were employed in heavy truck repair."

Plaintiff further noted that he had "had a racing stable for almost 25 years" and presently owns numerous horses "from here to South Carolina and Florida." He did not specifically include a request to maintain horse stables as part of his application before the Board. When asked, however, by a Board member if his horses had "resided at this property[,]" plaintiff responded, "They will, perhaps." He acknowledged that he had kept no horses on the property since his 1981 purchase, and emphasized that this issue was "not before this [B]oard."

Plaintiff presented several witnesses on behalf of his application. Robert Mildner testified that he has lived in Ocean Township since 1947, and was an employee of the "Road Department" for almost thirty years. He stated that, in or about 1958, the property had been used for "horse transportation . . . between tracks and farms." The owner, Todd Schwartz, had kept horse trailers on the property; Mildner was not aware of any other commercial activity at that location.

Victor Fermanetti, a licensed planner, testified to his understanding that "vehicles have been parked on the property as tort evidence[,] . . . [a]nd the use is possibly continued on a limited basis." He opined that "the proposed use is consistent with the residential use of the neighborhood and the property[,]" and characterized it as "rather innocuous . . . ." A Board member asked what was "planned for the future[,]" and Fermanetti stated that it was his "understanding that it's really going to remain as it is."

Plaintiff submitted a letter from William Poznak, who had prepared two surveys of the property in 1973. Poznak noted that the property "for many years, functioned as a horse transportation truck depot. Also, there was a stable for horses which were to be transported." The surveys revealed the presence of "a gas pump, horse stalls and [a] large garage[,] . . . [and] a large gravel area, obviously to accommodate the[] horse vans." In 1963 and 1964, Poznak served as the Zoning Officer for the ...

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