August 26, 2013
TOWNSHIP OF FRANKLIN, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 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 facility may remain open until 12:00 a.m. However, police presence is required at the applicant's expense after 8:00 p.m."
On July 16, 2011, police were called to defendant's property to stop a fight that had broken out. When the police arrived, they observed "200 to 300 people in the parking lot of the Center and a fight was in progress in the midst of the crowd." Further investigation revealed "that the fight occurred during the course of a college fraternity barbeque that was being held on the Center's premises." It is not disputed that defendant rented its property to the fraternity for this outdoor activity.
Following this incident, the Township issued a citation to defendant for violating Section 11-234(c) of the Township's Municipal Code. In pertinent part, this Section states that "[a] zoning permit shall be required prior to the commencement of a use or the erection, construction, reconstruction, alteration, conversion, or installation of a structure or building." Because the use variance granted to defendant stated that no outdoor activities would be conducted and that special events would be limited to the school cafeteria, the Township concluded that defendant's renting of the property to the fraternity, which conducted an outdoor barbeque, was a prohibited use.
At the trial before the municipal court, the Township's zoning officer, Vincent Dominach, Jr., testified that, over the years, he had "'at least a half a dozen conversations'" with Hwang about "the Center hosting outdoor activities, and Mr. Hwang was repeatedly told that the Resolution did not permit such events." Dominach also stated that he told Hwang "that the Center was not permitted to host any outdoor activities, but that [Hwang] could always go back to the zoning board and ask them to re-open the matter to permit the Center to host such events if [Hwang] so desired." On the other hand, defendant took the position that the Resolution permitted it to conduct two "special events" per month and did not specifically limit these events to inside the cafeteria.
On September 29, 2011, the municipal court judge found defendant guilty of violating the Township's zoning ordinance and it appealed to the Law Division. After reviewing the matter de novo, Judge Reed also found defendant guilty of violating the ordinance by permitting its property to be used for an outdoor activity. In a thorough written opinion, the judge found that outdoor events were barred by the express terms of the Resolution. Although paragraph seven stated defendant could hold two "special events" per month, the rest of the Resolution made clear that these "special events" were to be limited to inside the cafeteria and that all outdoor activities were prohibited. Defendant filed a motion for reconsideration, which was denied by the judge on April 24, 2012. This appeal followed.
On appeal, defendant raises the following contentions:
[1.] ORDINANCE INAPPLICABLE.
[2.] STATE BEARS BURDEN OF PROOF BEYOND A REASONABLE DOUBT.
[3.] SECTION 7 IS CLEAR AND UNAMBIGUOUS.
[4.] DOCTRINE OF LENITY REQUIRES AMBIGUITIES IN RESOLUTION TO BE RESOLVED IN FAVOR OF DEFENDANT.
[5.] STATE NOT ALLOWED TO INTRODUCE EXTRINSIC EVIDENCE.
[6.] STATE FAILED TO CARRY BURDEN OF PROOF.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction substantially for the reasons set forth in Judge Reed's written decision. We add the following comments.
We start with well-established principles. Our standard of review requires us to assess whether there was "sufficient credible evidence" in the record to uphold the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 (1964). We must determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete[, ]" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one . . . ." Ibid. Notwithstanding the foregoing, our review of the legal conclusions that flow from established facts is plenary." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Defendant asserts that paragraph seven of the Resolution states that "[s]pecial events will be permitted only on two (2) nights per month on any day of the week[, ]" without also specifically stating that these special events may only be held indoors. Thus, defendant claims it was never put on notice that an outdoor special event was prohibited under the Resolution. This argument lacks merit.
As Judge Reed cogently observed, defendant's argument "takes a myopic view of the form of the approval, as opposed to reading it in its entirety and interpreting its separate provisions" as a unified whole. The Resolution specifically states that it was approved on the basis of, and subject to, the representations and agreements made by defendant during the application process. Hwang represented that special events would be conducted in the cafeteria, that no alcoholic beverages would be served, and that the space would not be rented out. He continually stated that no outdoor activities would be conducted. In addition, the Township zoning officer told Hwang at least six times after the Resolution was approved that defendant was not permitted to conduct any outdoor activities on its property.
Thus, there was clearly sufficient credible evidence in the record to support the judge's determination, beyond a reasonable doubt, that defendant violated Section 11-234(c) of the Township's Municipal Code when it permitted its property to be used by a fraternity for an outdoor barbeque. We perceive no basis for disturbing the judge's determination.
Defendant's remaining arguments are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).