State of new jersey v. quality management associates of new jersey, inc

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6286-08T46286-08T4

State of new jersey,

Plaintiff-Respondent,

v.

quality management associates

of new jersey, inc.,

Defendant-Appellant.

__________________________________

 

Argued Telephonically May 18, 2010 - Decided

Before Judges Carchman, Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 19-09.

Christopher P. Leise argued the cause for appellant (White and Williams, LLP, attorneys; Mr. Leise, of counsel; Mr. Leise and Katrina D. Gibson, on the brief).

Mark P. Tarantino argued the cause for respondent (Mr. Tarantino and Ted M. Rosenberg, attorneys; Mr. Tarantino, of counsel; Mr. Rosenberg, on the brief).

PER CURIAM

Defendant Quality Management Associates of New Jersey, Inc. (QMA or defendant) appeals from a judgment of conviction for conducting an unspecified use in a zoning district, in violation of the 309A(A) Palmyra Land Use Ordinance (Ordinance). Defendant was convicted in the municipal court, and the Law Division upheld the conviction on the trial de novo. We affirm.

QMA Realty is the owner of property located at 700 Cinnaminson Avenue in the Borough of Palmyra, on which is located two buildings, only one of which is the subject of this appeal (the Property). The property is located in the Borough's "[o]ffice [c]ommercial" (OC) zoning district, which was established to create an area for development of office uses and to preserve and protect an important historic resource.

Pursuant to section 309A(A) of the Ordinance, "[p]rofessional and business offices[]" are permitted principal uses in the OC district. A "[b]usiness [o]ffice" is defined in 204 of the Ordinance as "[t]he office of any legal enterprise, which is identified by a legal exterior sign, employs personnel who must come to the business, etc. but excluding retail uses, professional uses, personal service uses, and banks." Within this zone, any use not specifically permitted is specifically prohibited. See 309A(E) ("Unspecified uses[,] or [a]ny uses not specifically permitted in this zoning district[,] are hereby specifically prohibited from this district."). The ordinance also permits "[a]ccessory [u]ses[,]" which are "customarily incidental to a permitted use." 309A(B).

Defendant is a business contracted and licensed by the Division of Developmental Disabilities (DDD) to provide residential, housing, and non-traditional supports to adults with developmental disabilities. As of 2007, forty-six individuals with developmental disabilities, including mental retardation, autism, and cerebral palsy, were in defendant's care.

Eugenia Drobit is the President, CEO, and part owner of defendant and QMA Realty, a non-party entity. Prior to purchasing the property, Drobit met with Tracy Kilmer, Palmyra's zoning officer, to discuss defendant's proposed use of the property. Drobit represented that one of the buildings would be used as the corporate offices of QMA, for which no variances were necessary. Drobit further stated that a few clients with developmental disabilities would be employed by the company to perform certain jobs on-site, including paper shredding, cleaning, and landscaping.

On August 20, 2007, Drobit, on behalf of QMA, appeared before the Planning Board (Board) to determine whether a variance would be required to build a handicapped lift. At that meeting, Drobit again represented that the building would only be used as the company's corporate offices, and "[s]everal people who live with the company also work for the company and will be employees within the building[,]" two of whom needed handicapped accessibility. The Board determined that a variance was not needed.

In actuality, however, QMA uses the second floor of its building for administrative offices and the first floor for "training" its clients. The first time this more intensive use was acknowledged was in a May 26, 2008 letter from Drobit to Kilmer, nine months after her appearance before the Board, wherein she admitted that QMA operates "non-traditional day supports[.]" In addition to the conducting of "filing, paper shredding, cleaning, landscaping and property maintenance[,]" "this is a place where people meet to plan what they will do during the day and most times go off and do as they so planned[,]" and further where "[p]eople also[] build skills here such as computer and language use." QMA acknowledged in later correspondence of August 29, 2008, that it conducts an "[a]dult [t]raining" program, which defendant describes as "teach[ing] its clients to be employable individuals by providing them with life skills training, education and vocational skills."

Drobit's correspondences were in response to inquiries by Kilmer as a result of her personal visits to the Property on two occasions, May 12 and August 19, 2008. On the earlier visit, when Kilmer was inside the building, a panic alarm activated. While Kilmer waited for the employees to turn off the alarm, she noticed "a woman in a wheelchair" with her head tilted, a rag under her chin to collect drool, and who otherwise appeared "out of it." The woman in the wheelchair did not "mention or notice that the alarm had gone off or . . . anything like that." Kilmer was concerned as to how a seemingly "incapacitated" person would be able to evacuate in case of a fire. While walking through the building, Kilmer also noticed "some other individuals [who] were in wheelchairs. . . . [T]here was a [television] on. There were a couple of aides standing there talking amongst themselves. Other people were playing . . . games. It looked like a recreation hall."

On her second visit, Kilmer described her observations in a letter to Drobit:

Today, August 19th I entered your building during an ambulance call for seizures. As I entered the hallway a young man without saying a word, walked up to me and stoked [sic] my hair in the hallway and pointed to his daily planner grunting at me.

I noticed in addition to his young man there were a variety of individuals with various health/mental issues. I saw a woman in a wheelchair playing the child's game Connect Four. I saw a foam mattress with pillows on the floor. Others in wheelchairs and some without along with aides were watching TV. [sic]

. . . .

Today, as I was leaving I spoke to Palmyra Police Officer Alvin who responded to the call. He stated that "Yeah, that's what it is, an adult daycare."

Consequently, on September 3, 2008, Kilmer filed a complaint against QMA for violating Ordinance 309A(E) - conducting an unspecified use in the zoning district. The matter was then heard in the Palmyra Municipal Court over two days. Kilmer testified as to her observations and that "[t]he whole first floor is a training care facility." She insisted that Drobit never disclosed to the Board that QMA's intended use for the first floor of the building was to provide educational training for people with developmental disabilities, but only that "she would have people working there with disabilities that she would train to do shredding, cleaning and landscaping. . . . Not that she would employ people as a training facility."

Drobit then testified for the defense that, pursuant to a contract with the DDD, QMA provides "non-traditional day supports" on its premises, including providing "a gathering place where people come in the morning" to plan their activities, and job training to render its clients "competently" employable. In addition, Robert Ignari, an expert witness in architecture, planning, and land use, inspected the building and concluded that defendant is "in the business that involves a form of training[,]" and provides training on the first floor of its building. By way of example, he noted that the office has a kitchen on the first floor "to train the clients how to prepare food and serve food if they were placed in . . . a job where they could assist in that."

At the close of evidence, the municipal court judge concluded that the adult training being conducted on the building's first floor was not a permitted principal or accessory use within the meaning of Ordinance 309A(A); was not disclosed to the Board; and was, in fact, inconsistent with Drobit's representations at the time. While the judge found that "what is conducted at this particular building is not adult daycare," he nevertheless concluded that "what is going on there is, in fact, training." Specifically, the training included "vocational activities, life skills, personal development, [and] community participation." Having adjudicated defendant guilty of the charged violation, the judge imposed a $206 fine and costs of $33.

On trial de novo in the Law Division, where the fact of on-site training was not in dispute, the issue devolved into whether defendant's use of the first floor fit the Ordinance's definition of "[b]usiness [o]ffice." Following a hearing, the judge concluded that "this non-traditional day support program is not one that's . . . within the purview of the ordinance . . . . [Y]ou haven't persuaded me that this business -- this non-traditional day support program is in fact a business that was contemplated by the ordinance . . . ."

Counsel, that's stretching it a bit. . . . I think the common interpretation of offices is business offices and I think that obviously -- you know, connotations can be made but here we have a different activity altogether in those four quadrants -- a different activity altogether.

I think Ms. Drobit had indicated that up on the second floor her offices were maintained, as well as other administrative offices and that's what we're talking about in terms of a business area.

Accordingly, the Law Division judge adjudicated defendant guilty of violating Ordinance 309A(A) and imposed the same sanctions as the municipal court.

On appeal, defendant raises the following issues:

I. THE LOWER COURT ERRED WHEN IT CONCLUDED THAT ADULT TRAINING IS NOT A PERMITTED USE BECAUSE TRAINING IS A PERMITTED PRINCIPAL USE, OR IN THE ALTERNATIVE, A PERMITTED ACCESSORY USE.

A. The adult training component of QMA's Day Program is a permitted principal use because QMA is a legal enterprise and the day program is its business.

1. The Borough's interpretation of the term "office" is erroneous because the generally accepted definition of the "office" is not limited to administrative functions only.

2. The Borough's proposed interpretation of "office" is inconsistent with its use elsewhere in the Ordinance.

B. In the alternative, QMA's use is a permitted accessory use because training is a use that is customarily incidental to a business office use.

1. The training component of QMA's day program constitutes an accessory use because training is customarily incidental to a business.

2. The adult training component is a permitted accessory use because it is inimical to the general welfare and is compatible with the permitted principal uses.

3. Adult Training constitutes an accessory use regardless of whether its participants are also in the Supported Employment component of the day program.

II. THE BOROUGH ORDINANCE IS UNCONSTITUTIONAL BECAUSE THE DEFINITION OF "BUSINESS OFFICE" IS VOID FOR VAGUENESS.

III. THE BOROUGH ORDINANCE IS UNCONSTITUTIONAL BECAUSE IT IS OVERLY BROAD.

IV. QMA'S PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED BECAUSE IT WAS CONVICTED OF A SUBSTANTIVE OFFENSE DIFFERENT FROM WHICH IT WAS ORIGINALLY CHARGED.

V. THE DOCTRINE OF EQUITABLE ESTOPPEL BARS PALMYRA'S CHARGE BECAUSE QMA INFORMED THE BOROUGH OF ITS PROPOSED USE AND RECEIVED APPROVAL FROM THE BOROUGH PRIOR TO ITS PURCHASE OF THE PROPERTY.

A. Prior to its purchase of the Property, the Borough approved QMA's proposed day program use.

B. The Borough is barred from justifying its rescission on the basis that QMA misrepresented its proposed use.

VI. QMA'S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE THE MUNICIPAL PROSECUTOR WAS UNDULY INFLUENCED BY THE LAND USE BOARD SOLICITOR (NOT RAISED BELOW).

A. The Prosecution's conduct was improper because the Board Solicitor acted as de facto prosecutor.

B. The prosecution's conduct was so egregious that it deprived QMA of a fair trial.

I.

We review the Law Division judgment under a sufficiency of the evidence standard. State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010). That is, "in conducting the review required under Rule 3:23-8(a), 'the Law Division's judgment must be supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009)). However, where, as here, there is no real factual dispute, and the only issues on appeal are legal, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); see also Rivera, supra, 411 N.J. Super. at 497.

II.

There is no dispute that QMA's property is located within the Borough's OC zone, and that this zone permits both business offices and professional offices. The essential issue, then, is whether the adult training program conducted by QMA on-site is a permitted principal or accessory use within the OC zone as set forth in 309A of the Ordinance. Defendant argues that the term "[b]usiness [o]ffice," as used in the ordinance, is not limited to strictly administrative functions, but must include "pursuit of a legal entity's business . . . ." Moreover, because the ordinance neither expressly defines the term, "office[,]" nor specifically excludes defendant's adult training component of its day program, it must be interpreted in QMA's favor. Furthermore, to the extent its meaning cannot be ascertained, the ordinance is unconstitutionally vague and broad.

In interpreting a municipal ordinance, we must "utilize[] the established rules of statutory construction[,]" Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div. 2006) (citation omitted), and are therefore guided by certain, well-established principles. First and foremost, "words and phrases shall[,]

. . . unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning . . . ." N.J.S.A. 1:1-1. We must "'look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen.'" In re Petition for Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 358-59 (2010) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009) (internal quotations and citations omitted)). The ordinance "must be read in [its] entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole." Burnett v. County of Bergen, 198 N.J. 408, 421 (2009) (internal quotations and citations omitted). When the statutory language is "clear and unambiguous, and susceptible to only one interpretation[,]" this court may not turn to "extrinsic interpretative aids[.]" Trenton Ordinance 09-02, supra, 201 N.J. at 359. Issues of statutory interpretation are reviewed de novo. Twp. of Holmdel v. New Jersey Highway Auth., 190 N.J. 74, 86 (2007).

It is also recognized that "[z]oning ordinances generally are liberally construed in favor of the municipality." Twp. of Pennsauken v. Schad, 160 N.J. 156, 171 (1999) (citing Place v. Bd. of Adjustment of Saddle River, 42 N.J. 324, 328 (1964)). "[H]owever, the wording in such ordinances must be clear and unambiguous so that [persons] of ordinary intellect need not guess at [its] meaning." Ibid. (internal quotations and citations omitted). Furthermore, because "municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, penal ordinances must be strictly construed." State v. Golin, 363 N.J. Super. 474, 482 (App. Div. 2003) (citing Schad, supra, 160 N.J. at 171; Maplewood v. Tannehaus, 64 N.J. Super. 80, 89 (App. Div. 1960), certif. denied, 34 N.J. 325 (1961)). Likewise, this court "must be guided by the rule of lenity, resolving any ambiguities in the ordinance in favor of a defendant charged with a violation." Ibid. (citing Schad, supra, 160 N.J. at 171; Maplewood, supra, 64 N.J. Super. at 89); see also State v. Livingston, 172 N.J. 209, 218 (2002).

"Generally, under federal constitutional law, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Golin, supra, 363 N.J. Super. at 482 (quoting Betancourt v. Town of W. New York, 338 N.J. Super. 415, 422 (App. Div. 2001) (internal citations and quotations omitted)). An ordinance "that fails to provide legally fixed standards and adequate guidelines for police and others who enforce the laws violates due process." State v. Clarksburg Inn, 375 N.J. Super. 624, 632 (App. Div. 2005) (citation omitted). "In general, in order to survive a vagueness challenge, a statute 'must enable a person of common intelligence, in light of ordinary experience to understand whether contemplated conduct is lawful.'" Pazden v. New Jersey State Parole Bd., 374 N.J. Super. 356, 370 (App. Div. 2005) (quoting State v. Cameron, 100 N.J. 586, 591 (1985)) (internal quotations and citations omitted).

The primary issue in determining whether a statute or ordinance is void for vagueness or indefiniteness is "whether [its] provisions . . . are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt." State v. Lashinsky, 81 N.J. 1, 16 (1979) (quoting Landry v. Daley, 280 F. Supp. 938, 951-52 (N.D. Ill.), appeal dismissed, 393 U.S. 220, 89 S. Ct. 455, 21 L. Ed. 2d 392 (1968), rev'd on other grounds, sub nom. Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971)).

However, a party may test a law for vagueness "as applied only with respect to his or her particular conduct; if a statute is vague as applied to that conduct, it will not be enforced even though the law might be validly imposed against others not similarly situated." Cameron, supra, 100 N.J. at 593. See also State v. Moran, 408 N.J. Super. 412, 429 (App. Div.), certif. granted, 200 N.J. 547 (2009). "Conversely, if a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others." Cameron, supra, 100 N.J. at 593.

"The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms." Lashinsky, supra, 81 N.J. at 16 (quoting Landry, supra, 280 F. Supp. at 951-52). The issue "'is not whether the law's meaning is sufficiently clear, but whether the reach of the law extends too far. The evil of an overbroad law is that in proscribing constitutionally protected activity, it may reach farther than is permitted or necessary to fulfill the state's interests.'" State v. Wright, 235 N.J. Super. 97, 103 (App. Div.) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983)), certif. denied, 118 N.J. 235 (1989).

"[W]henever possible, we should avoid interpreting a legislative enactment in a way that would render it unconstitutional." State v. Fortin, 198 N.J. 619, 630 (2009). To that end, "[w]hen necessary, courts have engaged in 'judicial surgery' to save an enactment that otherwise would be constitutionally doomed." Ibid. (quoting State v. Natale, 184 N.J. 458, 485-86 (2005)). In other words, we may "sever the offending portion in order to save the major objectives" of a statute or ordinance. Natale, supra, 184 N.J. at 486. "When a statute is vague, '[t]his [c]ourt's power and obligation to narrow imprecise statutory language . . . to render it constitutional is beyond question.'" State v. Mortimer, 135 N.J. 517, 533 (quoting State v. Ramseur, 106 N.J. 123, 200 (1987)), cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

Governed by these principles, we find the ordinance neither overly broad nor vague, but plain in its proscription of defendant's activities. The "generally accepted meaning, according to the approved usage of the language" of a business office is other than a place where adult training occurs. See N.J.S.A. 1:1-1. Under the ordinance in question, a training program would be barred in the OC zone based on the common understanding of a business office, which is a place where traditional office functions, such as accounting, billing, scheduling, and management activities are conducted as opposed to the actual underlying business of the entity. As the municipal court judge aptly observed in this regard:

And the defendant's argument that this is

. . . just an extension of that business, you can take that argument all the way to its logical conclusion. And that is that a welder has an office, and his office is in the building. And an extension of the business . . . is welding, therefore, he can have his welding shop . . . in an O/C zone.

That's the extreme extension of the logic, but that's the nature of the logic, that just because they are in that business, they could conduct the business itself within this building.

In our view, the subject ordinance is unambiguous as to

activities prohibited under the definition of "[b]usiness [o]ffice." Offices maintained for the conduct of business are excluded from the OC zone, except those specifically permitted under the definition of "[p]rofessional [o]ffice." A "[b]usiness [o]ffice" under the Ordinance by contrast, is an office where "personnel . . . must come to the business" and where professional, retail and personal service uses are excluded. The Ordinance is clear that a "[b]usiness [o]ffice" excludes offices maintained for the conduct of a business, as opposed to its administration, and that "professional uses" are prohibited in the "[b]usiness [o]ffice[.]" QMA, in conducting on-site adult training programs, which admittedly constitutes its business product, is conducting an unauthorized use in a "[b]usiness [o]ffice."

We disagree with defendant's contention that a "[b]usiness [o]ffice" must include an "office" maintained to conduct the entity's actual business. The term "office" contains no such connotation intrinsically. We note that 309A must be read in pari materia with other provisions of the Ordinance. The term "office" is also used in the definition of "[h]ome [o]ffice [u]se," in 204. "Home [o]ffice [u]se" is defined as: "[a]ny legal use of a portion of a dwelling unit for an office by a resident. A home office use shall not have any employees, any signs, any customers, patients, clients, or similar categories of persons visiting the home[.]" (Emphasis added). This definition excludes any sort of activity for the conduct of the business in a home "office[,]" and only permits administrative operations of a business.

More significant for present purposes, 307 of the ordinance defines permitted principal office uses in the Town Center Commercial zone (TC zone) to include "[o]ffices for the conduct of . . . professions[,]" which is, quite simply, defined differently than "[b]usiness [o]ffice." More specifically, pursuant to 307(A)(17), "permitted principal uses" in the TC zone include "[b]usiness and instructional school, including trade school." The Borough, as the best arbiter of "basic local zoning policy," N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 223 (1999), has determined that QMA's Adult Training program is more suitable in the TC zone.

We conclude that 309(A) is "sufficiently definite to give reasonable notice of the prohibited conduct . . ." Lashinsky, supra, 81 N.J. at 16 (quoting Landry, supra, 280 F. Supp. at 951-52), and is quite capable of being understood by persons of common intelligence. Nor is the ordinance void for overbreadth. The inclusion of the catchall provision, "etc.", does not automatically render an ordinance void on vagueness grounds. Karins v. Atl. City, 152 N.J. 532, 542 (1998). An ordinance may be written in "'broad terms, provided it is controlled by a sufficient basic norm or standard. It need not be minutely detailed to cover every possible situation.'" Schad, supra, 160 N.J. at 182 (quoting Karins, supra, 152 N.J. at 542). Here, the "etc." provision does not serve to penalize additional activity. Neither does it add or delete from the commonly accepted meaning of business office. It affords no additional enforcement discretion to the zoning official.

III.

Defendant argues alternatively that even if its training component does not constitute a permitted principal use, it constitutes a permitted accessory use. Section 309A(B)(1) of the ordinance permits, as "[p]ermitted [a]ccessory [u]ses[,]" "[a]ccessory structures and uses which are customarily incidental to a permitted use." Relying on Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 401 (App. Div. 1997), defendant argues that "training-related activities are customarily incidental to the principal use of a business office." We disagree.

"[A] use or structure may be a bona fide accessory use or structure if it is incidental to a principal use or structure and customary to the use of that structure." Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Middletown, 403 N.J. Super. 210, 243 (App. Div. 2008) (citing State v. P. T. & L. Constr. Co., 77 N.J. 20, 26-27 (1978)), certif. denied, 197 N.J. 475 (2009). In determining whether a use is customarily incidental to a permitted use, it must be both incidental to the main use, in that it "bear[s] a close resemblance and obvious relation to the main use to which the premises are put[,]" and also a customary use. Shim, supra, 298 N.J. Super. at 404 (quoting P. T. & L. Constr. Co., supra, 77 N.J. at 26-27 (internal citations and quotations omitted)).

In other words, "a use which is so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it will be found to be a customary use." DaPurificacao v. Zoning Bd. of Adjustment of Twp. of Union, 377 N.J. Super. 436, 443 (App. Div. 2005) (internal quotations and citations omitted); see also Wyzykowski v. Rizas, 132 N.J. 509, 518-19 (1993); Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 323 (1985). For example, "[d]riveways are so ineluctably incidental to any main structure and so customary for all structures that they are permitted accessory structures and uses in every zone." Mountain Hill, L.L.C., supra, 403 N.J. Super. at 243. The proposed accessory use "must be closely examined to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." Colts Run Civic Ass'n v. Colts Neck Twp. Zoning Bd. of Adjustment, 315 N.J. Super. 240, 249-50, 253 (Law Div. 1998). "The fact that a use is not customarily indulged in, however, is not conclusive, and even if the use in question is found in a small percentage of similar main uses, the use may still be found to be 'customary.'" Shim, supra, 298 N.J. Super. at 404 (quoting P.T. & L. Constr. Co., supra, 77 N.J. at 26-27).

Here, defendant has demonstrated neither that the training program is incidental to the principal use nor customary in the OC zone. Defendant provides job training services pursuant to a contract with the DDD, and these services are run out of the first floor of the building, including providing a job coach and skills training to make defendant's clients "competently" employable. Yet there is nothing about the principal use of a "[b]usiness [o]ffice" that logically implies the accessory use of training "special needs" adults to function at higher levels. The general purpose of a business office is to conduct the entity's administrative functions, which bear no relationship, much less close resemblance, to the training services at issue here. And while "training" employees in the administrative functioning of a business office on a temporary and limited basis may be considered an incidental use, defendant's training program involved much more and went far beyond that which was necessary or expected in conjunction with the principal use of the "[b]usiness [o]ffice" under 309A(A). Nothing in the record suggests that a training program is a customary use in the OC zone, especially when "[b]usiness and instructional school, including trade school[,]" is a principal use in the TC zone.

Defendant's reliance on Shim is unavailing. In Shim, supra, we determined that a daycare center was an accessory use to a church. 298 N.J. Super. at 408-410. While the principal use of the subject property was as a place of worship, we noted that "[c]hurches today are rapidly expanding their activities and ministries, particularly in the areas of education and social services. . . . [and] have become the center of diverse parochial and community activities conducted throughout the entire week, day and night." Id. at 405 (quoting Mark W. Cordes, Where to Pray? Religious Zoning and the First Amendment, 35 U. Kan. L. Rev. 697, 737 (1987)) (internal citations omitted). "[A] church's ministry is not confined to prayer or dissemination of its religious beliefs." Id. at 408. We further noted that "church-housed programs probably constitute the largest group of day care providers in the nation." Id. at 408 (internal quotations and citations omitted). The daycare center was considered incidental to the community function of the church. Id. at 409. Here, unlike Shim, defendant has demonstrated neither that its training program is incidental to the administrative function of a "[b]usiness [o]ffice[,]" nor that such use is customary in the OC zone.

IV.

Defendant's remaining arguments are all without merit. R. 2:11-3(e)(1)(E).

(A)

Defendant argues that its procedural due process rights were violated because it was convicted of a substantive offense different from which it was originally charged. Defendant alleges that the Borough charged QMA with running an adult daycare use, never amended the charge and, pursuant to Rule 7:14-2, was only permitted to prosecute defendant for that impermissible use. We disagree.

The complaint against defendant alleged a violation of "Borough of Palmyra Land Use Ordinance Section 309A(E)[,] conducting a[n] unspecified use in this zoning district." Although the probable cause statement of Kilmer characterized "this facility to be functioning as an Adult Daycare facility

. . ." at trial, it was essentially uncontested that defendant was operating an adult training program in the OC zone, and that this use was alleged to be unauthorized. Defendant can claim neither surprise nor prejudice.

Courts are granted broad authority to amend a complaint to conform to evidence adduced at trial. Rule 7:14-2 provides, in part, that "[t]he court may amend any process or pleading for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial, but no such amendment shall be permitted which charges a different substantive offense[.]" Rule 3:23-8(c) further states that an "appeal shall operate as a waiver of all defects in the . . . charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain[.]" Here, the substantive offense for which defendant was convicted remained constant; defendant was charged with, and convicted of, operating an unspecified use in the OC zone.

(B)

Defendant also argues that the doctrine of equitable estoppel bars the Borough's charge because QMA informed the zoning officer of its proposed use and received approval prior to its purchase of the property. Again, we disagree.

The doctrine of equitable estoppel "'is that one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct.'" Twp. of Middletown v. Simon, 193 N.J. 228, 250 (2008) (quoting Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-04 (1955)). Equitable estoppel may be applied to a government entity to "'avoid wrong or injury ensuing from reasonable reliance upon such conduct.'" Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399 N.J. Super. 51, 58 (App. Div. 2008) (quoting Skulski v. Nolan, 68 N.J. 179, 198 (1975) (internal citations omitted)). "'[T]he doctrine of equitable estoppel is applied against a municipality only in very compelling circumstances, where the interests of justice, morality and common fairness dictate that course.'" Ibid. (quoting Maltese v. Twp. of N. Brunswick, 353 N.J. Super. 226, 244-45 (App. Div. 2002)). Equitable estoppel is "rarely invoked against a governmental entity[,]" and will not apply if its "application would 'prejudice essential governmental functions.'" Ibid. (quoting Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (internal citations omitted)).

Here, the record discloses Drobit's representation to the Board that "[t]he building would only be used as the company's corporate offices." According to Kilmer, Drobit stated that QMA "would have people working there with disabilities that [defendant] would train to do shredding, cleaning and landscaping. . . . Not that she would employ people as a training facility." It is evident that Kilmer believed that defendant would provide training for its clients who also happen to be its employees, and these people would perform tasks such as property maintenance, landscaping and paper shredding around the premises. Kilmer denied that she agreed that a full-fledged training facility could be conducted on the premises, and all conversations regarding training on the premises were with reference to defendant's employees who would work at the building and provide services such as "paper shredding and jobs like that." The trial court determined that Drobit did not mention to the Board that any training activities would be "going on at this particular location." Defendant also did not contest these findings of fact at the trial de novo in the Law Division.

We defer to the trial court's credibility determinations. State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). There is "sufficient credible evidence in the record" to support the conclusion that Kilmer did not represent to defendant that its adult training program was an acceptable use in the OC zone. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). Accordingly, defendant's estoppel claim is without merit.

(C)

Lastly, defendant argues, for the first time on appeal, that the Board was improperly involved with defendant's prosecution, and as a result, defendant was deprived of a fair trial. Defendant alleges that the municipal prosecutor failed to exercise independent judgment in evaluating defendant's violation because he consulted with and relied on the Board solicitor for assistance in the prosecution. This issue, which is not otherwise cognizable on appeal, Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2010); State v. Baluch, 341 N.J. Super. 141, 184-85 (App. Div.), certif. denied, 170 N.J. 89 (2001), is, in any event, without merit.

Rule 3:23-9(b) states that the prosecuting attorney is the "municipal attorney, in a case involving violation of a municipal ordinance." Furthermore, there is no per se ban on an municipal attorney serving as a municipal prosecutor; the municipal prosecutor should only withdraw when there is that "remote potential" of an "appearance of impropriety." In re Opinion 662 of the Advisory Comm. on Prof'l Ethics, 133 N.J. 22, 32 (1993). Here, defendant has demonstrated no such appearance of impropriety.

Defendant also cites In re Opinion 452 of Advisory Committee on Prof'l Ethics, for the proposition that a board solicitor is not allowed to advise the municipal prosecutor. 87 N.J. 45, 51-52 (1981). In that case, the Court determined that, following the rule that "an attorney could not hold the position of municipal prosecutor where his partner is attorney for the board of adjustment[,]" "the proscription against dual office holding applies also to a planning board attorney whose partner is the municipal prosecutor." Id. at 52. There is, however, no per se bar prohibiting a Board attorney from providing information to the municipal prosecutor. Cf. In re Opinion 662, supra, 133 N.J. at 32. Here, defendant has made no showing that the municipal prosecutor's independent judgment was ever compromised.

 
Affirmed.

The term, "[p]rofessional [o]ffice," which by all accounts, has no applicability to this appeal, is defined, pursuant to 204 of the Ordinance, as "[t]he office of a member of a recognized and legal profession maintained for the conduct of that profession, including accounts [sic], appraisers, attorneys, certified landscape architects, chiropractors, dentists, financial planners, insurance brokers, physicians, podiatrists, professional engineers, professional planners, psychoanalysts, real estate agent, registered architects, surveyors, veterinarian, and no others."

The complaint was originally against Drobit, but QMA was subsequently substituted as the proper defendant.

We summarily reject defendant's claim that the Law Division judge failed to make independent findings of fact. Granted, the Law Division ordinarily exercises de novo review of the municipal court record. See State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd o.b., 180 N.J. 45 (2004). In other words, the judge "must make his or her own independent findings of fact since his or her function is . . . an independent fact-finding function in respect of defendant's guilt or innocence." State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) (citing State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995)). Here, however, defendant conceded both in the Law Division and here that no material facts are in genuine dispute. Because the only issues in dispute are legal in nature, the Law Division judge did not err in failing to expressly articulate independent findings of fact.

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A-6286-08T4

July 14, 2010