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Township of Franklin v. New Jersey Chinese Community Center

Superior Court of New Jersey, Appellate Division

August 26, 2013

TOWNSHIP OF FRANKLIN, Plaintiff-Respondent,
v.
NEW JERSEY CHINESE COMMUNITY CENTER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 07-12-R.

Cynthia M. Hwang, attorney for appellant.

Respondent has not filed a brief.

Before Judges Waugh and Haas.

PER CURIAM

Defendant New Jersey Chinese Community Center appeals from a final order of the Law Division that, following trial de novo on defendant's appeal from the Franklin Township Municipal Court, found defendant guilty of violating Section 11-234(c) of the Township's Municipal Code as the result of an outdoor barbeque held on defendant's property on July 16, 2011. Judge Robert Reed imposed a $1, 500 fine, together with $33 in court costs. We affirm.

On May 24, 2004, defendant appeared before the Township's Board of Adjustment in support of its application to obtain a use variance to allow it to operate a cultural and educational center on its property on Schoolhouse Road. According to the Board's June 17, 2004 Resolution[1] granting the variance, defendant stated it would use the property for "administrative offices, senior citizens center, library, job training center, cultural center and a summer program."

Defendant's president, Jimmy Hwang, testified in support of the application. Hwang stated that defendant would operate a "summer program" and that "there will only be indoor activities." The hours of operation for the job-training program would be between 9:00 a.m. and 5:00 p.m. Chinese language classes would be held on Saturdays and Sundays. The library would be open seven days a week during the day. With regard to all of these activities, Hwang repeated that "there will be no outdoor activities."

Hwang told the Board that defendant "occasionally would like to use the cafeteria without alcoholic beverages for special events until midnight one time per month on weekends and holidays." The Board inquired about the cafeteria's capacity and "Hwang stated that he would not be renting out the space."

Based upon Hwang's representations, the Board granted defendant the requested use variance, subject to certain limitations. Paragraph B of the Resolution states:

The applicant has shown good and sufficient reasons for granting the proposed Use Variance approvals in order to convert the existing non-conforming commercial/business facility to a Chinese Cultural Center to be used for administrative offices, senior citizen center, library, job training, Chinese language and cultural school and a summer school and camp in that said proposed uses will provide services to the community.

With regard to Hwang's statements to the Board that defendant would conduct "no outdoor activities" and would limit "special events" to inside the cafeteria, paragraph three of the Board's Resolution specifically required defendant to "comply with representations and agreements as well as conditions which may be set forth in the [Board's] findings of fact . . . ." Thus, paragraph five stated that "[t]he summer program will use the classrooms and will not include any outdoor activities without prior approval." Paragraph seven also stated that "[s]pecial events will be permitted only on two (2) nights per month on any day of the week. On those days[, ] the ...


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