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Colligan v. Howell Township Zoning Board of Adjustment

August 26, 2010

EDWARD M. COLLIGAN AND EDWARD A. COLLIGAN, PLAINTIFFS-APPELLANTS,
v.
HOWELL TOWNSHIP ZONING BOARD OF ADJUSTMENT, 2ND CP REALTY, LLC, ALL SWEET WATERMELON, INC., AND CHARLES PAGANO, DEFENDANTS-RESPONDENTS.
RONALD MCALLAN AND RONALD GORSKY, PLAINTIFFS-APPELLANTS,
v.
HOWELL TOWNSHIP ZONING BOARD OF ADJUSTMENT, 2ND CP REALTY, LLC, AND ALL SWEET WATERMELON, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-0365-08 and L-1309-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Cuff, Payne and Waugh.

Plaintiffs Edward M. Colligan and Edward A. Colligan, who are the appellants in A-1951-08T1, and plaintiffs Robert McAllan and Ronald Gorsky, who are the appellants in A-2103-08T1, filed separate actions in lieu of prerogative writs to challenge land use decisions by defendant Howell Township Zoning Board of Adjustment with respect to the property known as 19 Miller Road in Howell Township.*fn1

The Colligans own property adjacent to 19 Miller Road; and McAllan and Gorsky own property across the street. The subject property is owned by defendant 2ND CP Realty, LLC. Defendant All Sweet Watermelon, Inc., operates a watermelon distribution business on the property. Defendant Charles Pagano is the principal of 2ND CP and All Sweet.

The controversy centers on All Sweet's commercial activities at 19 Miller Road, which is currently zoned for agricultural use. The Board determined that All Sweet's operations were consistent with the property's prior nonconforming commercial use. The Colligans, McAllan, and Gorsky challenged that decision in the Law Division.

Judge Lawrence M. Lawson issued a detailed written opinion upholding the Board's actions and dismissing the consolidated complaints. The two sets of plaintiffs filed separate appeals, which were argued before us back-to-back. We now consolidate the appeals for the purposes of this opinion, and affirm the decision on appeal.

I.

We discern the following facts and procedural history from the record.

A.

John Puglisi was the prior owner of the subject property, which he bought as part of a larger property in 1970. He sought and received approval to build a 25,000 square foot building on the property for the purpose of running a wholesale business, consisting of egg processing and distribution. That use was permitted by the applicable zoning at the time. According to Puglisi, the business had twelve trucks. In addition, its operations were such that those trucks would enter and leave the property on a daily basis, and occasionally would do so twice in one day.

Approximately four years after Puglisi purchased the property, a fire destroyed the entire building. He rebuilt a portion of the building, and limited the scope of his business to distribution. The business continued to involve large vehicles, including trucks and tractor-trailers, going to and from the property every day. Puglisi also stored six trailers on the property. The business operated on weekdays, from 6:00 a.m. to about 6 p.m., and Saturdays, from 7:00 a.m. to around 3:00 p.m.

Puglisi operated his business in the same manner until 1981, when he sold the business and rented the property to Haydu Meats. According to Puglisi, Haydu's owner distributed meats and "did some kind of processing there, but not on a large scale, but he had [tractor] trailers coming in and he had a couple of his own trucks delivering."

After the owner of Haydu Meats passed away, Puglisi rented the property to La Tour Eiffel, a Canadian company that distributed cheese and pate. The products distributed by Eiffel were sent from Canada in large tractor trailers. According to Puglisi, Eiffel had six employees and operated five days a week. It distributed products locally and nationally. Eiffel had "one or two box trucks" that would leave the property in the morning and return in the evening. Puglisi estimated that, on a daily basis, there were four or five tractor trailers stopping at the building during Eiffel's operating hours. The six storage trailers remained on the property during Eiffel's tenancy. Eiffel used the property until 2000, when Puglisi sold the property to 2ND CP.

According to Puglisi, vehicles going to the rear of the building, where the trailers were stored and a maintenance building was located, would have to use a driveway that went through a portion of the adjacent property. All of the businesses prior to the sale to 2ND CP used that driveway. Although Puglisi ...


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