August 26, 2010
EDWARD M. COLLIGAN AND EDWARD A. COLLIGAN, PLAINTIFFS-APPELLANTS,
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,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
We discern the following facts and procedural history from the record.
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 originally owned the adjacent property, Puglisi sold it to the Colligans in 1978.
From 1994 to the present, Howell's master plan has designated the area in which the property is located as land restricted to agricultural use.*fn2 According to Puglisi, his real estate broker informed him that the property should be sold to a business "affiliated with agricultural because the zoning [had] changed."
At the time the underlying controversy arose, the property consisted of three acres and contained a 7,806 square-foot, one-story refrigerated warehouse. There were two access drives from Miller Road, stone and dirt parking areas, and a concrete slab along the front of the building.
According to Pagano, he was not advised that the property could only be used for limited purposes when he purchased it. Although he was not aware of all prior uses when he started his business, the broker had told him that the property was once used as an egg processing plant. Pagano maintains that Howell was notified of his intended use of the property when he submitted an application for a certification of occupancy.
All Sweet is a "direct receiver and distributor of watermelons," operating year round, with limited operations in the winter and more extensive operations in the summer. The business is open on weekdays, from 8:00 a.m. to around 6:00 to 8:00 p.m., and for a half day on Saturdays. According to Pagano, there are never more than ten employees on the property at one time.
During its busier season, five or six tractor trailers come onto the property every day, while the lighter season consists of one or two trailers a week. During the summer months, the property would receive "between twenty and thirty trailers a week ... on some days [there would be] two trailers and some days [there might be] eight." The trailers range from forty-eight to fifty-three feet in length. Pagano stores fifteen trailers on the property.
All Sweet receives watermelons from various regions, and stores them in a cooler pending delivery to local supermarkets. Pagano acknowledged that he had received complaints about the smell of rotting watermelons, but maintained that he corrected the situation by hiring a new company to remove waste from the property. According to Pagano, he received no complaints about arriving and departing trailers. However, Pagano received a summons in 2003 for using the property in a nonconforming manner.
In 2004, 2ND CP and All Sweet applied to the Board for an interpretation that there was a pre-existing nonconforming commercial use or, in the alternative, for a variance that would allow All Sweet to continue its operations. The application was amended to include a request for a use variance permitting a 5,770 square-foot addition to the building, as well as other site improvements and permissions. The application also sought permission to relocate the driveway that encroached on the Colligan property. The proposed addition to the building was withdrawn when a revised plan was submitted to the Board on March 27, 2006.
The Board held seven public hearings, the first of which took place on September 27, 2004. Plaintiffs appeared at the hearings through counsel and offered the testimony of professional planners and others.
Pagano presented Puglisi, who testified to the past uses outlined above. Pagano testified that the improvements he wanted to make to the property would "not really be an expansion of the business, it would be more space, easier to load trucks and space-wise more efficient ... [t]he bigger the facility the quicker [they] could get stuff in and out." He explained that the additional space would facilitate operations, and opined that the increased efficiency would result in shorter hours of operation and a reduction in spoiled watermelons requiring removal. The changes would not result in an increase in the number of employees on the property.*fn3
Vito Marinaccio, the Howell Township Land Use Officer who had approved the original occupancy permits for the property, testified that he had been in contact with Pagano since June 2000 about his use of the property. He stated that he had issued a summons in April 2003 based on violations for "operating a produce distribution center ... in the ARE-3 zone" and for operating it "without prior township approval."
Marinaccio testified that the outside storage, specifically the number of trailers outside the building, had increased since All Sweet started using the property. Aerial photos of the property in 1997 and in 2003 were used during the hearing to aid Marinaccio's testimony about the change. He acknowledged that the more recent photographs only illustrated the status of the site on the day the photograph was taken, but that he saw nothing in the related files that would lead him to conclude that the trailers were there temporarily. Marinaccio testified that he told Pagano that he could only have two trailers outside the building. He acknowledged that his concern dealt with the outside storage issue and not additional truck traffic.
John J. Ploskonka, a licensed engineer and planner, testified for Pagano about his review of the site, the existing structure, and the proposed improvements. He explained the renovations related to the entryway, moving parking spaces, and removing the encroaching driveway from the Colligan property.
He also testified that the proposed plans would improve the removal of rotted watermelons.
James W. Higgins, Pagano's planning expert, testified that All Sweet's use of the property was consistent with past uses, although the products involved were different. Higgins also testified about the proposed changes, noting that they would result in improved aesthetics and functionality.
Edward Kolling, McAllan's planning expert, testified concerning Howell Township zoning ordinance 188-39, which states that an owner's intention to abandon a nonconforming use "shall be presumed in the event of cessation of such nonconforming use or activity for a period of 366 consecutive days." He testified to his conclusion, based on a letter from Eiffel, that operations had been abandoned at the property for a period of nineteen months.
Edward A. Colligan testified that there was constant truck traffic and extensive hours of operation on Pagano's property. The Colligans' planning expert, Victor Furmanic, testified about the historical use of the property. Based on a review of prior testimony, Furmanic opined that All Sweet's use of the property had intensified the prior use due to the volume of deliveries and the days of operation.
At the end of the hearing, Kenneth Kerr, the Board's Planning expert, advised the Board that it should focus on whether the then existing structure and use were lawful at the time the zoning designation was changed, whether the watermelon distribution business was consistent with that pre-existing nonconforming use, and whether any restrictions on the intensity of use were needed. He also advised the Board that, if it were to conclude that there was an intensification of the prior nonconforming use, the Board would have to decide whether to grant a use variance or restrict operations.
On September 24, 2007, the Board approved the remediation of the driveway that encroached on the Colligan property. On December 10, 2007, the Board determined that the use of the property was a pre-existing nonconforming use.
The Board's decisions were memorialized in a resolution dated January 28, 2008.
The Zoning Board of Adjustment finds that the Applicant has amply demonstrated that the structure and operation of the site as a wholesale food warehouse and distribution facility is a pre-existing non-conforming use that existed prior to the time the ARE-3 Zone [was] created at this locat[ion]. Contrary to the objector's opinions, the use of the site was not abandoned in any sense of the word. The site was created as, and continued as, a commercial food distribution facility, which in fact contains a refrigerated building which contemplated the storage of food products. Ample case law exists to support the proposition that mere non-use of a site does not constitute abandonment. Clearly, in this case there is no evidence which supports the proposition that the Applicant's predecessors intended to abandon the very use that the building was designed for. No alterations or change of use have occurred since the site was constructed as a commercial facility, except for the downsizing of the building due to a fire. The use continues to present day, and the present use is consistent with that of the pre-existing lawful use of egg distribution. It should also be mentioned that the previously mentioned lawful use continued with the Eiffel and Haydu operation, which is virtually the same in nature to the present watermelon use.
As to Phase Two site plan approval, any required variance/waivers can be granted without substantial detriment to the public good. The practical impact of this approval is to make the site more aesthetically pleasing, and safer for traffic to enter and exit. The proposed buffering, landscaping, elimination of parking at the front of the facility, and other site improvements previously mentioned serve to upgrade the site, and serves a purpose of zoning. Phase Two approvals are a logical extension of the approvals previously granted by the Board under Phase One approvals. As such, site plan approval may be granted without being detrimental to the general health, safety, and welfare of the municipality.
The Board finds further that the applicable waiver requests may be granted, as the literal enforcement of these provisions is impractical. Additionally, as it appears that no trees will be removed during Phase Two, a Woodlands Management Plan is not required.
The Colligans filed their prerogative writ action in January 2008; and McAllan and Gorsky filed theirs in March 2008. The actions were consolidated in June 2008. Judge Lawson heard oral argument on October 1, 2008, and issued his written opinion on October 30, 2008.
In his opinion, which set out the factual and legal considerations governing his decision in detail, Judge Lawson concluded (1) that the Board's refusal to issue subpoenas for Puglisi's recall for further cross-examination, for testimony by a representative of Eiffel, and for electric utility records was "not arbitrary, capricious, or unreasonabl[e];" (2) that the facts and the law supported the Board's determination that the prior nonconforming commercial use was not abandoned; (3) that the Board's decision to grant certain ancillary variances and approvals was "not arbitrary, capricious, or unreasonable;" and (4) that members of the Board, who constituted less than a quorum, did not act improperly in visiting the site and then placing their observations on the record of the hearing. The implementing order was filed on November 12, 2008.
These appeals followed.
Public bodies, such as municipal zoning boards, are allowed wide latitude in their delegated discretion because of their particular knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). The scope of judicial review is to determine whether a zoning board could reasonably have reached its decision on the record, not whether a better decision could have been made by that board. Ibid. The reviewing court is not to substitute its own judgment for that of the zoning board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). There is an assumption that there was an adequate basis in the record for the zoning board's conclusions, so deference to its judgment is generally appropriate. Lang v. Zoning Bd. of Adjustment of North Caldwell, 160 N.J. 41, 58 (1999).
A trial court is to determine whether the zoning board's decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority." Jock, supra, 184 N.J. at 597. However, determinations of law are subject to de novo review by the trial court. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Isihos Bros. P'ship v. Twp. of Franklin, 376 N.J. Super. 591, 595 (Law Div. 2000).
An appellate court applies the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[T]he appellate court will give substantial deference to findings of fact, and will overturn discretionary rulings only if arbitrary and capricious." William M. Cox, New Jersey Zoning and Land Use Administration § 33-4 (2010). Special deference is not shown to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We have carefully reviewed the issues raised on appeal in light of the record and the applicable law. Having done so, we affirm substantially for the reasons expressed by Judge Lawson in his thoughtful and detailed opinion, with the following brief additional observations.
Our review of the record reveals that there was significant evidence supporting the Board's decision that there was a prior nonconforming commercial use over an extended period of time, and that All Sweet's operations were substantially consistent with the prior use. Even if there was a hiatus in the nonconforming use during an interval between tenants, such a hiatus does not, as both the Board and Judge Lawson correctly determined, constitute an abandonment. As we held in S & S v. Zoning Bd. of Adjustment of Stratford, 373 N.J. Super. 603, 614 (App. Div. 2004):
Temporary non-use does not constitute abandonment. Children's [Inst. v. Verona Twp. Bd. of Adjustment], 290 N.J. Super. 350, 357 (App. Div. 1996). A change in ownership or tenancy does not terminate a nonconforming use, Arkam Machine & Tool Co. v. Lyndhurst [Twp.], 73 N.J. Super. 528, 533 (App. Div. 1962), nor does the temporary inability to find a new tenant. Campbell v. Bd. of [Adjustment of South Plainfield], 118 N.J.L. 116 (1937).
The Board's factual findings in that regard were also amply supported by the record.
A pre-existing nonconforming use "'is ordinarily restricted to its character and scope at the time the ordinance making it a nonconforming use was enacted.'" Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 332-33 (App. Div. 2003) (quoting McDowell, Inc. v. Bd. of Adjustment of Wall, 334 N.J. Super. 201, 214 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001)). Kerr properly instructed the Board that, if it determined that there was an intensification of the use after 2ND CP acquired the property, the Board would have to address the issue through a variance pursuant to N.J.S.A. 40:55D-70(d)(2). The Board found it unnecessary to consider that statute having determined that All Sweet's use was substantially consistent with the uses of Puglisi, Haydu, and Eiffel. Our review of the record satisfies us that there was no intensification of the use requiring a 70(d)(2) variance.
The remaining issues do not warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).