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State v. Kelley

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TUCKER M. KELLEY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-077.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2010

Before Judges Lihotz and Ashrafi.

Defendant Tucker Kelley appeals from a judgment of the Superior Court, Law Division, finding him guilty on de novo review of violation of a Rockaway Township ordinance prohibiting storing of a tow truck on residential property. We affirm.

The Rockaway Township zoning officer, Dennis Creran, issued a summons to defendant charging him with violation of Ordinance 54-30.8b.4.(e) on May 6, 2008. That ordinance states:

[I]n all residential zones only one (1) commercial towing truck registered for twenty-six thousand (26,000) pounds or less may be stored in a residential driveway during those times when that particular tower is on call for response to Township emergency towing needs.

Defendant is not engaged in towing for Township emergency needs.

The matter was transferred and tried in the Montville Municipal Court. Creran testified that he observed a tow truck parked at defendant's residence on March 12, 2008. The truck did not have a front license plate or registration tags in its window. Creran did not see the rear of the truck. Creran wrote to defendant on April 11, 2008, alleging the zoning violation and giving defendant fourteen days to remove the truck.

On further inspection on May 6, 2008, the tow truck was still located on defendant's property in the same place as in March. Creran issued a summons. He then observed the truck still at the same location on June 11 and October 6, 2008.

Photographs were admitted in evidence taken by Creran on the last three dates that he observed the truck on defendant's property. They showed a tow truck and the absence of a front license plate and registration tags.

Creran also testified that defendant's property was located in the B-1 business zoning district of Rockaway Township but that defendant obtained a certificate of occupancy for residential use of the property, and the property is listed in the Township tax records under a residential, not business, classification.

Defendant did not testify but argued that the ordinance prohibited "storing" of a tow truck while he was charged with and the prosecution had only proved he had "parked" the truck on his property. He also argued that the ordinance did not apply to property in the B-1 zoning district. After considering and rejecting defendant's arguments, the municipal court found defendant guilty of the violation and imposed a fine of $500 and costs of $30.

Defendant appealed to the Superior Court under Rule 3:23. On de novo review of the record established in the municipal court, a judge of the Law Division also considered and rejected defendant's legal arguments. The court found him guilty, imposing the same penalties as the municipal court. Defendant filed a timely notice of appeal.

On appeal before us, defendant raises the following points:

POINT I.

THE STATE FAILED TO PROVIDE ANY/ALL DISCOVERY AS PER R. 3:13-3(G) AND R. 7:7-7.

POINT II.

ORDINANCE 54-30.8b.4.(e) DOES NOT PROHIBIT PARKING IN A RESIDENTIAL ZONE (R-13) OR BUSINESS ZONE (B-1).

POINT III.

THE COURT'S OPINION THAT A USE OF A BUILDING AND OR STRUCTURE CHANGES THE ZONE.

Defendant requested discovery of all documents and exhibits relevant to the prosecution's case and specifically requested the personnel file of Creran. The prosecution did not show defendant the photographs and municipal records it intended to use until the date of trial, but defendant made no objection to those items at the time of trial. Concerning Creran's personnel file, defendant demonstrated no "factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." State v. Harris, 316 N.J. Super. 384, 398 (App. Div. 1998) (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). Moreover, Creran's credibility was not in issue because the photographs established the nature and location of the truck. Defendant has alleged no specific prejudice resulting from the discovery issues, and the record does not reveal any.

Regarding his factual and legal arguments, defendant emphasizes the word "stored" in the ordinance and argues that "parking" of a tow truck on his property is not prohibited. The municipal court judge answered this argument correctly, stating that the ordinance is not limited to long-term storage of a vehicle that is not in current use. The ordinance expressly refers to and exempts only one tow truck that is being used for the Township's emergency towing needs. By its terms, it includes tow trucks that are currently in use.

Defendant's reliance on New York Central Railroad Co. v. Borough of Ridgefield, 84 N.J. Super. 85 (App. Div. 1964), is misplaced. In that case, we held that temporary placement of cars in a railroad yard while they were being transferred from railroad cars to trucks for transportation did not constitute "storage" within the meaning of a similar municipal ordinance. Id. at 95-96. Referring to the "transient character of their stay" for a day or two, we concluded that the railroad's actions were more akin to "parking" rather than "storing" the cars in its freightyard. Id. at 96.

In this case, there was ample evidence to prove that defendant's tow truck was not merely "parked" for a day or two at his residence. The zoning officer's testimony and the photographs established that the truck was at the same location on four dates from March through October 2008. There was nothing transient in the use of defendant's property to "store" his truck.

Finally, defendant is incorrect in arguing that the ordinance does not apply to his property because it is located in a business rather than a residential zone. The evidence established that defendant's property is used for residential purposes. Residential uses are permitted in the B-1 business zoning district, but they must comply with the regulations applicable to such uses within a residential zoning district. Ordinance 54-30.49a.9 includes as a permitted use in the B-1 business district: "One (1) single-family detached dwelling on a lot; provided the dwelling complies with all required conditions of the R-13 district." The R-13 district is a residential zoning district. The conditions applicable to that district include Ordinance 54-30.8b.4.(e), under which defendant was convicted.

We agree with the trial courts that the ordinance applied to defendant's property because its residential use requires compliance with the regulations applicable in a residential zoning district.

Affirmed.

20100709

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