On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 19-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically May 18, 2010
Before Judges Carchman, Parrillo and Lihotz.
Defendant Quality Management Associates of New Jersey, Inc. (QMA or defendant) appeals from a judgment of conviction for conducting an unspecified use in a zoning district, in violation of the § 309A(A) Palmyra Land Use Ordinance (Ordinance). Defendant was convicted in the municipal court, and the Law Division upheld the conviction on the trial de novo. We affirm.
QMA Realty is the owner of property located at 700 Cinnaminson Avenue in the Borough of Palmyra, on which is located two buildings, only one of which is the subject of this appeal (the Property). The property is located in the Borough's "[o]ffice [c]ommercial" (OC) zoning district, which was established to create an area for development of office uses and to preserve and protect an important historic resource.
Pursuant to section § 309A(A) of the Ordinance, "[p]rofessional and business offices" are permitted principal uses in the OC district. A "[b]usiness [o]ffice" is defined in § 204 of the Ordinance as "[t]he office of any legal enterprise, which is identified by a legal exterior sign, employs personnel who must come to the business, etc. but excluding retail uses, professional uses, personal service uses, and banks."*fn1 Within this zone, any use not specifically permitted is specifically prohibited. See § 309A(E) ("Unspecified uses[,] or [a]ny uses not specifically permitted in this zoning district[,] are hereby specifically prohibited from this district."). The ordinance also permits "[a]ccessory [u]ses[,]" which are "customarily incidental to a permitted use." § 309A(B).
Defendant is a business contracted and licensed by the Division of Developmental Disabilities (DDD) to provide residential, housing, and non-traditional supports to adults with developmental disabilities. As of 2007, forty-six individuals with developmental disabilities, including mental retardation, autism, and cerebral palsy, were in defendant's care.
Eugenia Drobit is the President, CEO, and part owner of defendant and QMA Realty, a non-party entity. Prior to purchasing the property, Drobit met with Tracy Kilmer, Palmyra's zoning officer, to discuss defendant's proposed use of the property. Drobit represented that one of the buildings would be used as the corporate offices of QMA, for which no variances were necessary. Drobit further stated that a few clients with developmental disabilities would be employed by the company to perform certain jobs on-site, including paper shredding, cleaning, and landscaping.
On August 20, 2007, Drobit, on behalf of QMA, appeared before the Planning Board (Board) to determine whether a variance would be required to build a handicapped lift. At that meeting, Drobit again represented that the building would only be used as the company's corporate offices, and "[s]everal people who live with the company also work for the company and will be employees within the building[,]" two of whom needed handicapped accessibility. The Board determined that a variance was not needed.
In actuality, however, QMA uses the second floor of its building for administrative offices and the first floor for "training" its clients. The first time this more intensive use was acknowledged was in a May 26, 2008 letter from Drobit to Kilmer, nine months after her appearance before the Board, wherein she admitted that QMA operates "non-traditional day supports[.]" In addition to the conducting of "filing, paper shredding, cleaning, landscaping and property maintenance[,]" "this is a place where people meet to plan what they will do during the day and most times go off and do as they so planned[,]" and further where "[p]eople also build skills here such as computer and language use." QMA acknowledged in later correspondence of August 29, 2008, that it conducts an "[a]dult [t]raining" program, which defendant describes as "teach[ing] its clients to be employable individuals by providing them with life skills training, education and vocational skills."
Drobit's correspondences were in response to inquiries by Kilmer as a result of her personal visits to the Property on two occasions, May 12 and August 19, 2008. On the earlier visit, when Kilmer was inside the building, a panic alarm activated. While Kilmer waited for the employees to turn off the alarm, she noticed "a woman in a wheelchair" with her head tilted, a rag under her chin to collect drool, and who otherwise appeared "out of it." The woman in the wheelchair did not "mention or notice that the alarm had gone off or . . . anything like that." Kilmer was concerned as to how a seemingly "incapacitated" person would be able to evacuate in case of a fire. While walking through the building, Kilmer also noticed "some other individuals [who] were in wheelchairs. . . . [T]here was a [television] on. There were a couple of aides standing there talking amongst themselves. Other people were playing . . . games. It looked like a recreation hall."
On her second visit, Kilmer described her observations in a letter to Drobit:
Today, August 19th I entered your building during an ambulance call for seizures. As I entered the hallway a young man without saying a word, walked up to me and stoked [sic] my hair in the hallway and pointed to his daily planner grunting at me.
I noticed in addition to his young man there were a variety of individuals with various health/mental issues. I saw a woman in a wheelchair playing the child's game Connect Four. I saw a foam mattress with pillows on the floor. Others in wheelchairs and some without along with aides were watching TV. [sic]
Today, as I was leaving I spoke to Palmyra Police Officer Alvin who responded to the call. He stated that "Yeah, that's what it is, an adult daycare."
Consequently, on September 3, 2008, Kilmer filed a complaint against QMA*fn2 for violating Ordinance § 309A(E) -conducting an unspecified use in the zoning district. The matter was then heard in the Palmyra Municipal Court over two days. Kilmer testified as to her observations and that "[t]he whole first floor is a training care facility." She insisted that Drobit never disclosed to the Board that QMA's intended use for the first floor of the building was to provide educational training for people with developmental disabilities, but only that "she would have people working there with disabilities that she would train to do shredding, cleaning and landscaping. . . . Not that she would employ people as a training facility."
Drobit then testified for the defense that, pursuant to a contract with the DDD, QMA provides "non-traditional day supports" on its premises, including providing "a gathering place where people come in the morning" to plan their activities, and job training to render its clients "competently" employable. In addition, Robert Ignari, an expert witness in architecture, planning, and land use, inspected the building and concluded that defendant is "in the business that involves a form of training[,]" and provides training on the first floor of its building. By way of example, he noted that the office has a kitchen on the first floor "to train the clients how to prepare food and serve food if they were placed in . . . a job where they could assist in that."
At the close of evidence, the municipal court judge concluded that the adult training being conducted on the building's first floor was not a permitted principal or accessory use within the meaning of Ordinance § 309A(A); was not disclosed to the Board; and was, in fact, inconsistent with Drobit's representations at the time. While the judge found that "what is conducted at this particular building is not adult daycare," he nevertheless concluded that "what is going on there is, in fact, training." Specifically, the training included "vocational activities, life skills, personal development, [and] community participation." Having adjudicated defendant guilty of the charged violation, the judge imposed a $206 fine and costs of $33.
On trial de novo in the Law Division, where the fact of on-site training was not in dispute, the issue devolved into whether defendant's use of the first floor fit the Ordinance's definition of "[b]usiness [o]ffice." Following a hearing, the judge concluded that "this non-traditional day support program is not one that's . . . within the purview of the ordinance . . . . [Y]ou haven't persuaded me that this business -- this non-traditional day support program is in fact a business that was contemplated by the ordinance . . . ."
Counsel, that's stretching it a bit. . . . I think the common interpretation of offices is business offices and I think that obviously -- you know, connotations can be made but here we have a different activity altogether in those four quadrants -- a different activity altogether.
I think Ms. Drobit had indicated that up on the second floor her offices were maintained, as well as other administrative offices and that's what we're talking about in terms of a business area.
Accordingly, the Law Division judge adjudicated defendant guilty of violating Ordinance § 309A(A) and imposed the same ...