ROOSEVELT AVENUE PROPERTIES, LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF OCEAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5942-08T25942-08T2

ROOSEVELT AVENUE PROPERTIES, LLC,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF OCEAN,

Defendant-Respondent.

_______________________________

 

Argued January 12, 2010 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-6024-08PW.

E. Carlton Kromer argued the cause for appellant (Schibell, Mennie & Kentos L.L.C., attorneys; Mr. Kromer, on the brief).

Mark A. Steinberg argued the cause for respondent.

PER CURIAM

Plaintiff appeals from the July 17, 2009 judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of Ocean Township (Board), denying plaintiff's application for a certificate of nonconformity pursuant to N.J.S.A. 40:55D-68. We affirm.

We summarize the pertinent factual background from the transcripts of the six-day hearing before the Board. In 1981, plaintiff purchased a four-acre property at 308 Roosevelt Avenue in the Oakhurst section of Ocean Township. Since 1949, the zone in which this property is located has been designated as residential.

Plaintiff's principal is Richard Schibell, an attorney whose son, also an attorney with plaintiff's law firm, lives in an apartment on the adjoining property. The structures on the subject property include a house and a garage, which plaintiff described as a "large four-bay commercial garage[,] . . . that was built to accommodate huge vehicles . . . ." Plaintiff and his son use the garage to store vehicles that are exhibits in their court cases; plaintiff also "stored vehicles that were owned by [him] personally and owned by others that were in [his] employ. There were several limousines stored on the property for years." He "also did repair work initially." In addition, plaintiff and his son use two of the garage bays as "shelving for [the] files from [their] law office."

In July 2006, plaintiff first received notice that use of the property for commercial purposes was prohibited. Plaintiff thereupon filed two applications with the Board, one "to confirm [the] validity of [the] premises as a pre-existing non[]conforming use" under N.J.S.A. 40:55D-68, and the other for a use variance pursuant to N.J.S.A. 40:55D-70(d).

Plaintiff described the purpose of his application as "for utilization of the premises as they are currently being utilized, which is an occasional storage of . . . vehicles used ancillary to [his law] practice." He stated that he was "using it as a commercial garage for [his] purposes. But it is not open to the public for commercial use."

Plaintiff also stated that he wished to store office files in the garage; however, he characterized that as an "ancillary use" to maintaining "a commercial garage." He explained that he desired to store vehicles and parts connected to his firm's cases where "mechanical factors were considered an issue on death or substantial injury cases," adding that these items were "stored either in or out or both of the garage, depending upon limitations and availability." Plaintiff pointed out that the garage "was constructed to accommodate . . . four 18-wheelers . . . [and] heavy engine hoists that would lift . . . enormous engines . . . . It was also equipped with a full metal shop and a full bench with all the tools that were employed in heavy truck repair."

Plaintiff further noted that he had "had a racing stable for almost 25 years" and presently owns numerous horses "from here to South Carolina and Florida." He did not specifically include a request to maintain horse stables as part of his application before the Board. When asked, however, by a Board member if his horses had "resided at this property[,]" plaintiff responded, "They will, perhaps." He acknowledged that he had kept no horses on the property since his 1981 purchase, and emphasized that this issue was "not before this [B]oard."

Plaintiff presented several witnesses on behalf of his application. Robert Mildner testified that he has lived in Ocean Township since 1947, and was an employee of the "Road Department" for almost thirty years. He stated that, in or about 1958, the property had been used for "horse transportation . . . between tracks and farms." The owner, Todd Schwartz, had kept horse trailers on the property; Mildner was not aware of any other commercial activity at that location.

Victor Fermanetti, a licensed planner, testified to his understanding that "vehicles have been parked on the property as tort evidence[,] . . . [a]nd the use is possibly continued on a limited basis." He opined that "the proposed use is consistent with the residential use of the neighborhood and the property[,]" and characterized it as "rather innocuous . . . ." A Board member asked what was "planned for the future[,]" and Fermanetti stated that it was his "understanding that it's really going to remain as it is."

Plaintiff submitted a letter from William Poznak, who had prepared two surveys of the property in 1973. Poznak noted that the property "for many years, functioned as a horse transportation truck depot. Also, there was a stable for horses which were to be transported." The surveys revealed the presence of "a gas pump, horse stalls and [a] large garage[,] . . . [and] a large gravel area, obviously to accommodate the[] horse vans." In 1963 and 1964, Poznak served as the Zoning Officer for the Township; in that capacity he issued a mercantile license to "the Schwartz horse transportation business" as required by ordinance.

Plaintiff also submitted the transcript of an interview with Albert W. Chambers, who had lived in the Township from 1925 to 2000 and had served "a number of years" as a Township police officer. Chambers recalled that Schwartz operated a horse transportation business on the subject property "many years ago," and that had "been a business there for many, many years." Chambers had "heard" that there was "a truck or auto repair facility" on the property. However, he has not lived in the area for a number of years and was not personally aware of the use of the property since his departure.

George Welly testified as an objector. He owns a property adjacent to plaintiff's lot and lived there from 1972 to 1977. He stated that during that period a tenant lived in the garage, but maintained no business on the premises.

Plaintiff also contended before the Board that he had attempted to obtain records showing what structures had been on the property going back as far as possible, but the Township had lost such records. He asserted that he was handicapped by the lack of such records and argued that the burden of proof should therefore be upon the Township to disprove the existence of a pre-existing nonconforming use.

At the conclusion of the evidence, plaintiff again explained his proposal for storing vehicles on the property. He stated that "there would be no more than two wrecked vehicles stored outside[,]" adding that "[i]t's rare; it doesn't happen all the time." He further offered that all stored vehicles would be drained of gasoline, oil and all other fluids so that "on the crash vehicles, what you're dealing with is basically just a piece of wrecked metal, a hunk of metal." He also agreed to landscape the area with "whatever your landscape architect deems appropriate . . . ."

After voting to deny plaintiff's application for certification of a pre-existing nonconforming use, the Board approved his application for a use variance permitting file storage and "no more than two vehicles to be stored outside[,] . . . all fluids drained prior to being stored . . . and landscaping to block . . . the view of those vehicles from off site . . . ."

In its October 16, 2008 resolution denying the nonconforming use, the Board reviewed the evidence and noted that, "[a]lthough some of the uses on the site in the past may have predated" the 1949 zoning amendment, "those uses have been abandoned and the current use of a storage facility for law office files or for the storage of wrecked vehicles needed to be preserved for use as evidence in civil action law suits are [sic] not permitted." The Board concluded that plaintiff had "failed to establish that the current uses legally existed prior to the zoning ordinance, which rendered it nonconforming."

In his complaint in lieu of prerogative writs, plaintiff described his application before the Board as follows:

to utilize a pre-existing garage structure located at the premises . . . for the storage of legal files owned by [plaintiff's law firm], seeking either a certification of validity of a pre-existing nonconforming commercial use, or in the alternative, a use variance to store legal files, and other legal evidence on the premises which was in the ownership, care or custody of [plaintiff's law firm] . . . .

(Emphasis added.)

In the Law Division, plaintiff contended that he wanted to continue to store and repair vehicles as he had been doing until he was cited by the Township zoning officer. He noted that the "steel infrastructure" of the garage "is so unique that it lends itself to the fact that the repair and pulling of engines is something that is ancillary to its use and inherent in its use." Plaintiff argued that this use had not been abandoned, and explained that he wanted to continue to store and repair "[c]ommercial vehicles, crashworthiness vehicles, products liability vehicles, i.e., with allegations of lack of merchantability and the like . . . ." Plaintiff added that he intends "to use that property one day for repair of 18 wheelers, for [his] private use. And the temporary storage of [his] horses as they ship in from Kentucky and Florida and South Carolina . . . ." He contended that such use "was historically dedicated to this property . . . ."

In affirming the Board's decision, the court reviewed the evidence and concluded:

In the instant case, the applicant attempted to demonstrate the existence of the nonconforming use at the time the zoning ordinance was enacted in 1949. It presented no specific evidence of what the use was in 1949. At best it demonstrated that at some point in time horses were liveried at the location and some kind of commercial garage operated there. It could not fix specific dates.

Mr. Schibell, a principal of plaintiff, . . . admitted that the current use, that is to store files as evidence, ancillary to his law office, was a less intensive use than what he claimed was preexisting. . . .

He was also under the impression that the burden of proof somehow shifted to the Board. . . .

There was no evidence presented to the Board by the applicant indicating that it intended to use the property as a commercial garage to repair trucks, nor was there any evidence indicating it intended to use the property as livery for horses.

Plaintiff maintained the premises since 1981, neither as a stable for horses nor a commercial garage. If these uses preexisted the ordinance, by operating the garage as a storage facility the applicant changed its use. In sum, plaintiff's proofs as to the existence of the nonconforming use it claims are speculative and conjectural.

The [c]ourt finds that the Board's determination that the plaintiff failed to establish the existence of the nonconforming use of a livery and commercial garage was supported by the substantial lack of evidence presented by the applicant.

Moreover, even if this use was established, it is clear that the 27[-]year period of inactivity with respect to the former uses, coupled with the change of use, was sufficient evidence of abandonment.

On appeal, plaintiff contends that (1) because the Township could not produce records of the historical uses of the property, the burden should shift to the Township to prove "that the commercial use of the [p]roperty and [g]arage did not exist prior to the 1949 [z]oning [o]rdinance"; (2) the Board's decision was arbitrary, capricious or unreasonable; and (3) there was no evidence that the "commercial use" of the garage had been abandoned.

Plaintiff's first argument lacks merit. Statutory and case law clearly establish that the burden of proving a pre-existing nonconforming use is upon the person asserting such use. See N.J.S.A. 40:55D-68 ("The applicant shall have the burden of proof."); see also Bonaventure Int'l v. Borough of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002); Ferraro v. Zoning Bd. of Borough of Keansburg, 321 N.J. Super. 288, 291 (App. Div. 1999). The Township's failure to maintain records of the historical uses of property has no bearing on the allocation of the burden of proof here.

We turn to plaintiff's claim that the Board's decision was arbitrary, capricious or unreasonable. We review such a claim under a highly deferential standard. The Board's findings are entitled to a presumption of validity and will not be disturbed so long as we "determine . . . the board could reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987). We do not substitute our judgment for that of the Board even if we may disagree with the result. Cell S. of N.J. v. Zoning Bd. of Adj., W. Windsor Twp., 172 N.J. 75, 81 (2002). In short, "we will not disturb a board's decision unless we find a clear abuse of discretion" Id. at 82.

The essence of the Board's decision here was its finding that, "[a]lthough the evidence indicates that a commercial use on the site existed prior to the zoning ordinance, which rendered same nonconforming, the specific uses presented have been abandoned and the current uses cannot be certified as legal pre[-]existing nonconforming uses." On appeal, the court examined the evidence relied upon by the Board to support this finding and noted that, "[a]t best[, plaintiff] demonstrated that at some point in time horses were liveried at the location and some kind of commercial garage operated there."

By contrast, plaintiff sought to store and repair his personal cars; store vehicles that were evidence in his firm's lawsuits; at some point in the future, maintain eighteen-wheel trucks on site to transport horses; and use the "infrastructure" of the garage to hoist such vehicles to remove and repair their engines. Plaintiff, however, presented no evidence that such uses had ever existed on the property. To the extent that eighteen-wheel vehicles had been on the property, they provided the livery service operated by Schwartz in the 1960's; there was no evidence that Schwartz, or any owner before or since, had used the garage to hoist and repair the vehicles' engines. Moreover, the livery service had terminated prior to plaintiff's purchase of the property.

We have held that

[a]bandonment of a nonconforming use terminates the right to its further use. The traditional test of abandonment requires the concurrence of two factors: (1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.

[S & S Auto Sales, Inc. v. Zoning Bd. of Adj. of Borough of Stratford, 373 N.J. Super. 613-14 (App. Div. 2004) (citing Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16 (Ch. Div. 1969)).]

The gravamen of plaintiff's position is that merely because he demonstrated that various commercial uses existed on the property prior to the 1949 zoning amendment, his application established a pre-existing nonconforming use. Such is not the test, however.

The proper question presented to the board by one who seeks to obtain a certificate for a nonconforming use is: what was the use which existed on the property in question at the time of adoption of the zoning ordinance? It is this use which the statute protects, and such use must have been continuous.

[Cox, New Jersey Zoning and Land Use Administration, Ch. 11-2.3 at 299 (2010.]

We concur with the findings of the two tribunals below that plaintiff failed to meet his burden of proof with respect to this question.

Moreover, plaintiff's considerable reliance upon Bobinski, supra, is misplaced. There, the use in question was the existence of horse stables on a property in an area permitting such use. 108 N.J. Super., supra, at 8-9. At the time the original owners sold the property to the defendants, the use of the stables had been abandoned for the previous twenty-seven years; however, the sellers had maintained the structure so that it was in usable condition at the time of sale. Ibid. An intervening zoning ordinance amendment brought the structure out of conformance with setback lines; when the defendants resumed use of the stables, the Borough sought to enjoin the use, claiming that because of the twenty-seven-year hiatus, it had been abandoned. Id. at 9-10.

Under those circumstances, the court found that "[t]he prior use of the structure as a stable, together with its continued maintenance and repair by [the sellers] over the years, without any alteration in its adaptability to continue use as a stable or any contrary use during that interim period, established that there was no abandonment . . . ." Id. at 18. Plaintiff's circumstances are in no way analogous to those in Bobinski.

Affirmed.

 

Since Schibell is the real party in interest, "plaintiff" shall refer to him in this opinion.

Chambers was deceased by the time of the Board hearings, and the Board agreed to accept a certified transcript of his interview.

Plaintiff's reliance upon Romano v. Kimmelman, 96 N.J. 66 (1984) is misplaced. The issue before the Court in that case was the quantum of proof required to admit Breathalyzer test results in drunk driving trials. In that context the Court recognized that "the burden of proof can vary depending upon the type of proceedings, . . . the access of the parties to proof, and the objective to be served by the evidence in the . . . particular proceeding." Id. at 89. By contrast, the burden of proof here is clearly allocated by statute.

(continued)

(continued)

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A-5942-08T2

May 27, 2010