On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-077.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...