On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4357-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Espinosa.
In this action in lieu of prerogative writs, plaintiffs Marlboro Auto Wreckers, Morganville Autowreckers and Schechter Enterprises*fn1 appeal from the judgment entered in favor of the Marlboro Township Zoning Board of Adjustment (the Board) which determined that plaintiffs' non-automotive scrap metal operations on three junkyard facilities were not a permitted use and did not constitute a pre-existing and non-conforming use. We affirm.
Schechter owns three properties that are operated as a commercial salvage yard in Marlboro Township. The first and second properties, Marlboro Auto Wreckers and Morganville Auto Wreckers, are both located in the LC (Land Conversation) Zone and have been owned and operated by Schechter since 1955 and 1962, respectively. The third property, Schechter Enterprises, is located in the C2 (Neighborhood Commercial) Zone and has been owned and operated by plaintiffs since 1980. Without a variance, junkyards are not permitted uses within either zone.
Marlboro Township Ordinance No. 37-82 (the Ordinance) was passed on September 23, 1982, and requires a license to operate a motor vehicle junkyard and a separate license to operate as a wholesale or retail junk dealer.
Pursuant to Article I, section 82-1, a license is required to operate a motor vehicle junkyard, which is defined in Article I, section 82-3 as:
Any business or place of storage or deposit . . . which displays in or upon which there is displayed to the public view two (2) or more motor vehicles which are unfit for use for the highway transportation [sic], or used parts of motor vehicles or old iron, metal, glass, paper, cordage, or other waste or discarded material which has been part of any motor vehicle, the sum of which parts or material shall equal in bulk two (2) or more motor vehicles.
Article II governed wholesale or retail junk dealers and, in section 82-19, defined a loose retail junk dealer as:
A person who goes about the streets soliciting the purchase of junk or who maintains a store, shop or other place of business or truck, cart or other vehicle for the purchase, sale and collection in small quantities of discarded articles and materials of every description, commonly called "junk."
The same section defines a wholesale junk dealer as:
A person who buys and sells junk in large quantities and who maintains a warehouse, yard or other place of business where discarded articles and materials of every description are purchased or collected in large quantities and are permitted to accumulate[.]
In or about 2007, Schechter was considering adding a new scrap metal machine to one of the properties to process more non-automotive scrap and contacted the Zoning Officer, Sarah Paris, to request a permit to operate the bailer on the properties. Paris denied the permit and issued a notice to Schechter that the use of the properties involving the collection and sale of scrap metal not related to motor vehicles was prohibited. Plaintiffs sought a stay of enforcement of the zoning officer's action pending the presentation of an application to the Board for an interpretation that the plaintiff's activities were either a permitted use or a pre-existing, non-conforming use.
The Board held three hearings on plaintiff's consolidated applications from March 2008 to July 2008. In support of her contention that all three properties had continuously operated as non-automotive junk dealers under Article II, Elaine Schechter testified that, since their inception, the properties collected both kinds of junk metal: automotive and non-automotive scrap. Junked cars would be crushed, stacked, and stored on the properties until the price for the metal went up, at which point the automotive scrap was sold. Although some non-automotive scrap, such as unwanted appliances, was dropped off at the sites, Schechter admitted that they were never "heavy into scrap" and that it never generated significant revenue. Schechter wanted to buy a bailer for the scrap metal so that she could eliminate a middle man and expand the loose junk operations. In the past, scrap metal amounted to only 25% of the business. However, Schechter acknowledged that the percentages varied from year to year and she could not produce an accurate number.
Schechter was asked whether she could produce receipts of non-automotive scrap Schechter collected and sold prior to 1982 and a breakdown of the different materials included in the sale in an effort to prove how much of Schechter's business included loose scrap compared to automotive scrap prior to the Ordinance's adoption. Schechter was unable to provide pre-1982 receipts.
Before the ordinance was passed in 1982, junkyard license applicants did not have to specify whether they operated as an automotive or non-automotive facility, but were simply asked to describe their operations generally. When the ordinance was passed, section 82-22, required the license application to state the purpose for which the junkyard is to be used. Although Schechter had applied for and received licenses to operate the junkyards both before and after the ordinance was passed, neither the application nor the license forms specified whether licensure was granted under Article I as an automotive facility, or Article II as a non-automotive facility. Schechter produced a number of junkyard licenses beginning in January 1, 1977 and continuing through 1982, which described the nature of the business as "scrap iron and metal, repairs, auto and truck sales, auto parts, tires, glass, et cetera." This description of the business was identical to the descriptions on the license applications that were completed after the Ordinance was adopted. The Township simply granted a "Junkyard License" to Schechter and did not list whether an Article I or Article II license was granted.
Schechter presented Andrew Janiw as an expert witness in the field of professional planning. Janiw described a series of aerial photographs of Schechter's properties that were taken as early as the mid-1950s. Based on his review of the photographs, Janiw opined that Schechter's efforts to segregate metal was a "continuing effort" and that the operation historically included "a mix of both auto wreckage as well as scrapping metals[.]" He also estimated that the segregated non-automotive scrapping activities depicted in the photographs constituted "25, 35, [or] 45 percent" of the total square footage of the landmass available at the three sites. It appears, however, that the quality of the photographs left room for debate as to the level of support they provided for this opinion. Janiw also provided an expert opinion that Schechter's non-automotive metal scrapping activities "clearly pre-existed the [O]rdinance." His opinion ...