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State of New Jersey v. Domenick M. Schina

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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