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State of New Jersey v. Domenick M. Schina

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMENICK M. SCHINA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 37-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2012

Before Judges Espinosa and Kennedy.

Defendant Domenick M. Schina appeals from a judgment in the Law Division finding him guilty of violating the zoning ordinances of Springfield Township by maintaining two rental apartments on his horse farm in a zone district that does not permit that use, with limited exceptions not applicable here.

Defendant does not contend that his property is subject to these exceptions, but rather contends that the rental apartments were permitted uses when constructed, and continued as proper non-conforming uses when he received the municipal summonses charging him with violating the zoning code. Defendant also contends that the Springfield zoning ordinance expressly permits "usual farm buildings without restriction in all zones" and that apartments for farm laborers would fit that definition.

Defendant was initially tried in the Springfield Township Municipal Court on two summonses issued on July 24, 2009, and November 10, 2009, respectively, by the municipal zoning officer. Defendant submitted various certifications and documents and moved to dismiss the summonses. When that motion was denied, the State and defendant agreed that the court could render a decision on the basis of "undisputed facts" in the motion papers. The municipal court judge found defendant guilty of violating the zoning ordinance and imposed fines and penalties.

Defendant filed a de novo appeal to the Law Division where the trial judge on February 1, 2011, found defendant guilty of the charges set forth in the summonses and imposed fines and penalties. This appeal followed.

I.

Although the parties stipulated that the facts were undisputed, no express stipulation of facts was placed on the record. Also, neither the municipal court judge nor the Law Division judge set forth the facts in any detail. The Law Division judge stated that,

In Springfield Township, the defendant in this case owns a horse farm. This farm, I find, includes two apartments in which tenants were apparently renting, at least at the time the zoning officer for the township cited the defendant for violating the township zoning ordinance.

The judge then went on to consider the Springfield zoning ordinances in effect since 1952.

It appears from the documents submitted to the municipal court that defendant purchased a "horse farm" in Springfield in 1991. A single family residence and a separate "horse barn" containing two residential apartments were situated on the property, each building having a separate septic system. The apartments in the horse barn existed at least as of 1973. According to an affidavit of Brenda Fryer, she worked on the property for a prior owner between l986 and 1988 and thereafter rented one of the apartments from defendant. The trial transcript also references that an employee of defendant rented the other apartment. We infer these two tenants resided in the apartments at the time the summonses were issued.

Defendant contended that "horse barn apartments" were common in the area and provided a copy of a Springfield Township Board of Adjustment resolution pertaining to another property in which the board "accepted . . . testimony . . . that animals require the constant presence of a caretaker." That 2004 resolution, however, expressly rejected that applicant's claim that an apartment in a horse barn constructed in 1963 was a valid, non-conforming use under the 1952 zoning ordinance.

II.

Springfield Township's first zoning ordinance was adopted in 1952. At that time, Section VIII governing "agricultural zones" provided that,

In [a]gricultural [z]ones no building or premises shall be used and no building shall be constructed except for one or more of the following purposes:

1. Farming in any of its branches, including poultry raising, animal husbandry . . . and . . . storing . . . the products thereof;

2. Any use permitted in [r]esidential

[z]ones; . . .

4. Multi-family dwellings for migrant labor used on the premises when such dwellings meet the State requirements . . . .

Section VII governing "residential zones" permitted, in pertinent part, "single family dwellings."

The ordinance apparently was amended in 1979 and thereafter, but it is unnecessary for us to consider the amendments to decide whether the property is a valid non-conforming use in view of the apparently undisputed fact that the horse barn apartments at issue existed prior to the 1979 amendment.

Defendant claims that the apartments were "permitted uses" under the terms of the 1952 ordinance when it is construed in light of the alleged ubiquity of such apartments in Springfield Township at that time. Defendant expressly concedes that "[h]orse barn apartments are not for migrant labor" and thus does not rely upon that provision in the 1952 ordinance. Rather, defendant claims that horse barn apartments are a type of building commonly utilized for farming purposes and consequently are a protected non-conforming use, even assuming later ordinances forbade the use.

A non-conforming use is defined as: a use or activity which was lawful prior to the adoption, revision or amendment of a zoning zoning district in which it is located by reasons of such adoption, revision or amendment. [N.J.S.A. 40:55D-5.]

Ordinarily, the party seeking to continue the non-conforming use bears the burden of proving the nature of the use's character at the time the ordinance was adopted making it non-conforming. N.J.S.A. 40:55D-68; S & S Auto Sales, Inc. v. Zoning Bd. of Adj. of Stratford, 373 N.J. Super. 603, 624 (App. Div. 2004); Bonaventure Int'l., Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002); Ferraro v. Zoning Bd. of Keansburg, 321 N.J. Super. 288, 290 (App. Div. 1999).

However, where, as here, the State chooses to proceed by quasi-criminal prosecution in the municipal court, rather than by a civil action seeking injunction, it assumes the obligation to prove its case beyond a reasonable doubt. State v. Schad, 160 N.J. 156, 171 (1999); State v. Carlson, 344 N.J. Super. 521, 527 (App. Div. 2001). Consequently, it bears the burden of proving beyond a reasonable doubt that the horse barn apartments as of 1973 were unlawful. State v. Weir, 183 N.J. Super. 237, 242 (App. Div. 1982).

While the trial judge recognized that the State "bears the burden of proof[,]" he nonetheless appeared to have inverted the burden on the issue of whether the horse barn apartments constituted a lawful non-conforming use. He observed that "defendant cannot show by a preponderance of the credible evidence that his apartments existed prior to December 26, 1952", the date, presumably, when the 1952 zoning ordinance took effect. This error appears harmless, however, given that defendant concedes there is no evidence that the apartments existed prior to 1973.

The trial judge then went on to determine that under the 1952 ordinance, defendant's property lies within the agricultural zone where "accessory apartments are not permitted" and that such apartments are also proscribed in the "residential zone[,] as well . . . ."

We are satisfied the trial judge was entirely correct in this determination. We note first that we are reviewing the trial judge's interpretation of the township's zoning ordinance, and are thus dealing with a question of law. Our review, in consequence, is de novo. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008) (stating, "[w]hen the sole issue before us is the meaning of language in an ordinance, the trial judge's determination is not entitled to any special deference because the issue is one of law which is always subject to review de novo."), certif. denied, 197 N.J. 475 (2009); Bubis v. Kassin, 184 N.J. 612, 627 (2005) (noting that "the meaning of an ordinance's language is a question of law that we review de novo").

In determining the meaning of an ordinance, the court should adhere to principles of statutory construction. Id. at 626. A court should construe an ordinance based upon the governing body's intent and in a manner that is reasonable. Place v. Bd. of Adjustment of Saddle River, 42 N.J. 324, 328 (1964).

We agree with the trial judge that horse barn apartments are not a permitted use under the 1952 ordinance. A residential apartment over a barn is plainly not a building for purposes of farming. Further, the ordinance permits two types of dwellings in an agricultural zone: those permitted in residential zones (single family dwellings) and multi-family dwellings for migrant labor that meet State requirements (a category defendant concedes does not apply to his property). Clearly, therefore, under a reasonable interpretation of the ordinance, other types of dwellings are not permitted uses.

Defendant contends that, nonetheless, under the present ordinance his horse barn apartments are permitted because "usual farm buildings" are expressly permitted. However, chapter 81 of the Springfield Township ordinances of 1979 and 1988 expressly provides that "the term farm building shall not include dwellings." Accordingly, defendant's claim is flatly contradicted by the plain terms of the ordinance.

The remaining issues raised by defendant are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20120525

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