E.H.C.S., LLC v. EAST HANOVER LAND USE PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

E.H.C.S., LLC,

Plaintiff-Appellant,

v.

EAST HANOVER LAND USE PLANNING

BOARD and TOWNSHIP OF EAST

HANOVER,

Defendants-Respondents.

____________________________________

December 11, 2013

Argued November 7, 2013 Decided

Before Judges Grall, Waugh, and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2151-11.

Rosemary Stone-Dougherty argued the cause for appellant.

William J. Rush argued the cause for respondent East Hanover Land Use Planning Board.

Jonathan Testa argued the cause for respondent Township of East Hanover (O'Donnell McCord, P.C., attorneys; Mr. Testa, of counsel and on the brief).

PER CURIAM

Plaintiff E.H.C.S., Inc. (EHCS), appeals the Law Division's April 19, 2012 order dismissing its action in lieu of prerogative writs without prejudice. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

EHCS owns property located at 12-14 Ridgedale Avenue West in East Hanover. Although the property is now in a residential zone, there has been an auto body shop on the property since 1928. The parties do not dispute that operation of the body shop is an existing nonconforming use.

EHCS leased the property to Northfield Collision, Inc. (Northfield), which now operates the body shop. The continued certificate of occupancy issued by East Hanover, however, does not permit towing and storage of impounded vehicles. EHCS contends that impoundment is also an existing nonconforming use. That contention is at the core of the dispute between EHCS and defendants Township of East Hanover (Township) and East Hanover Land Use Planning Board (Board).1

In February 2011, Northfield, with the required consent of EHCS, applied to the Board for an interpretation of the 1973 resolution granting the application of a prior owner of the property, Louis Malackov, for a use variance2 allowing construction of an addition to the existing building for use in the body shop business. That application was made pursuant to N.J.S.A. 40:55D-70(b), which empowers boards of adjustment to "[h]ear and decide requests for interpretation." Northfield argued that the Board should interpret the 1973 resolution as permitting the impoundment use on the property.

There were two days of hearings in April and May. Northfield called witnesses to support its position that the property was used for a body shop and for impoundment prior to and after both the rezoning of the property to residential use in 1957 and the issuance of the resolution granting the (d)(1) variance in 1973. Following the hearings, the Board adopted a resolution determining that the 1973 resolution did not authorize or even refer to use of the property for impoundment purposes and concluding that it was not a permitted use.

On July 29, 2011, EHCS, as owner of the property, filed an action in lieu of prerogative writs challenging the Board's decision. The matter was argued on April 17, 2012, and the judge reserved judgment. On April 19, the judge issued an order dismissing EHCS's complaint without prejudice. The order was accompanied by the judge's statement of reasons. This appeal followed.

II.

EHCS makes the following arguments on appeal: (1) the judge should have reviewed the Board's decision de novo; (2) the 1973 resolution permitted use of the property for impoundment; (3) the Township's use of the property for those purposes estops it from concluding that it was not an existing nonconforming use; (4) all uses on the property that pre-dated the zoning change were continuous and are not limited by time; (5) the fact that the 1973 resolution was titled as a use variance does not limit or extinguish prior nonconforming uses; (6) the Township's failure to issue the zoning permit in a timely manner acts as approval of the contested uses; (7) the Board erred in denying its motion for an adjournment to allow an expert to testify; and (8) the use of the property now is less intensive than what was granted in 1973.

A.

Appellate review of a land-use board's decisions is limited. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002). We apply the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). Consequently, the determinations of a land-use board are presumed valid and will be reversed only when the findings are "'so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" Ocean Cnty. Cellular, supra, 352 N.J. Super. at 522 (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)).

Nevertheless, a board's findings must be supported by "substantial evidence in the record." N.Y. SMSA, L.P. v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 165 (App. Div.), certif. denied, 162 N.J. 488 (1999). A land-use board has the discretion to accept or reject the testimony of witnesses and, where reasonably made, such a decision is conclusive on appeal. Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 434 (App. Div. 2009) (citations omitted).

A land-use board's interpretation of a zoning "ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). "Although a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless. As with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (citations omitted).

B.

As we explained in Puleio v. North Brunswick Township Board of Adjustment, 375 N.J. Super. 613, 620-21 (App. Div.) (emphasis added), certif. denied, 184 N.J. 212 (2005), there are three types of legal uses.

[A] legal use may fall into one of three different and distinct categories: (1) a permitted use one permitted under the zoning ordinance that is conforming in every way; (2) a use granted by variance one not permitted by the terms of the zoning ordinance because it does not conform to the listed permitted uses in the zone, but one that the Municipality has voted upon and allowed despite its non-conformance; and (3) a nonconforming use one that was legal and permitted prior to an ordinance change, but that no longer conforms with the current zoning ordinance.

The owner of property may continue a nonconforming use, but "'the policy of the law is to restrict them closely.'" Motley v. Borough of Seaside Park Zoning Bd. of Adjustment, 430 N.J. Super. 132, 143 (App. Div.) (alteration in original) (citing Hay v. Bd. of Adjustment, 37 N.J. Super. 461, 464 (App. Div. 1955)), certif. denied, 215 N.J. 485 (2013).

This is because their "'tendency is to subvert rather than support sound planning.'" Grundlehner v. Dangler, 29 N.J. 256, 274 (1959) (Burling, J., concurring) (quoting Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189, 196 (1955)). Accordingly, municipalities "may impose restrictions on nonconforming uses, including prohibiting their expansion." Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 333 (App. Div. 2003). Municipalities may not, however, take "active" steps to eliminate nonconforming uses, and must wait with "'fervent hope that they would in time wither and die and be replaced by conforming uses.'" Fred McDowell, Inc. v. Bd. of Adjustment, 334 N.J. Super. 201, 214 (App. Div. 2000) (quoting Grundlehner, supra, 29 N.J. at 263), certif. denied, 167 N.J. 88 (2001).

[Id. at 143-44.]

Although an existing nonconforming use typically runs with the land, it can be lost through "abandonment or discontinuance." Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 210 (1988) (quoting Town of Belleville v. Parillo's, Inc., 83 N.J. 309, 315-16 (1980)).

C.

When the body shop use started on the property in 1928, it was a permitted use. Once the zoning was changed to residential in 1957, it became an existing nonconforming use. In 1973, when Malackov obtained the (d)(1) variance allowing him to expand one of the buildings used in operating the body shop, there was an existing nonconforming use coupled with an expanded use resulting from the use variance.

The issue between EHCS and the Township is whether impoundment was and continues to be an existing nonconforming use on the property. EHCS takes the position that it is permitted as an existing nonconforming use because impoundment operations pre-existed the 1957 zoning change and continued through the time of the 1973 use variance, which recognized and approved it. The Township disagrees, arguing in part that the 1973 use variance should be read as precluding any impoundment use.

There were two possible statutory avenues through which to seek resolution of the issue: (1) an application pursuant to N.J.S.A. 40:55D-683 for a certification that impoundment was an existing nonconforming forming use; and (2) an application pursuant to N.J.S.A. 40:55D-70(b)4 for an interpretation of the 1973 use variance as allowing those operations. The basic problem with this appeal is that EHCS choose to pursue only the latter avenue, which resulted in a determination that the 1973 use variance did not permit the impoundment use but did not resolve the issue of whether there was an existing nonconforming use for impoundment. Although, the judge's statement of reasons and order allowed EHCS to go back to the Board to seek a certification of nonconforming-use, it elected to appeal.

We agree with the judge's conclusion that the text of the 1973 resolution governs its interpretation and that it cannot be read to permit the impoundment use. When construing a planning board's variance resolution, it is the actual text of the resolution that controls. Bd. of Adjustment of Weehawken, supra, 370 N.J. Super. at 333-34 (internal citation omitted); see also, Cox & Koenig, New Jersey Zoning & Land Use Administration, 28-5.1 (2013). Statements by speakers at the hearing of a planning or zoning board are "at best reflect[ions of] the beliefs of the speaker and cannot be assumed to represent the findings of an entire Board. Moreover, because such remarks represent informal verbalizations of the speaker's transitory thoughts, they cannot be equated to deliberative findings of fact." Bd. of Adjustment of Weehawken, supra, 370 N.J. Super. at 333-34; see also Rocky Hill Citizens for Responsible Growth v. Planning Bd., 406 N.J. Super. 384, 413 (App. Div. 2009) (applying the same principle to statements of individual board members).

We also concur with the judge's determination that the impoundment use at issue here cannot be considered a use accessory to the operation of a body shop. Undoubtedly, it is necessary for some damaged vehicles to be towed to a body shop and stored pending repair or other disposition if repair is determined to be unfeasible. That would be a permitted accessory use. Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 400-03 (App. Div. 1997) ("[A]n accessory use need not derive from the express terms of the ordinance; an accessory use is implied as a matter of law as a right which accompanies the principal use.").5

That some body shops may also engage in impoundment related towing and storage does not, as a matter of law, make it an accessory use to the business of a body shop. The impounded vehicles are not brought to the property for the purpose of being repaired, which is the core business of a body shop. Consequently, an impoundment use is not "customarily incidental and subordinate to the principal use" of a body shop.

We reject EHCS's argument that the Township is estopped from taking the position that an impoundment use is not permitted because the Township did not object to the use within the ten-day period prescribed for issuance of a zoning permit. N.J.S.A. 40:55D-18. As the judge observed, the permit application listed "Auto Body Repair Facility" as the approved use and represented that the purpose of the application was "[c]hange of tenant[,] same use as previous tenant per use variance autobody/automotive repair vehicle outdoor storage and ancillary towing." The application made no specific mention of impoundment or related operations. EHCS's argument simply begs the question at issue, and any inaction by the Township cannot form the basis of an estoppel argument under these circumstances.

As previously discussed, Northfield only applied to the Board for an interpretation of the 1973 resolution. It never filed an amended application seeking a certification that impoundment was a nonconforming use, nor did it give public notice that it was seeking that relief. The judge appropriately recognized that, although raised during the hearings, the issue of certification of a nonconforming use was not properly before the Board. That issue has not been resolved.

Consequently, we conclude that Judge Thomas L. Weisenbeck properly dismissed the complaint without prejudice and allowed Northfield and EHCS to seek further relief before the Board. We agree that the Board is the appropriate forum to resolve the issue of nonconforming use in the first instance.6 It is a fact-sensitive issue and requires extensive fact-finding by the Board. Once the application is made and the required notice is given, the parties will undoubtedly be able to rely, at least partially, on the record from the first application, which can be supplemented to the extent necessary.7

Affirmed.8

1 Pursuant to N.J.S.A. 40:55D-25(c), the Board is authorized to exercise the functions of a planning board and a zoning board of adjustment.

2 N.J.S.A. 40:55D-70(d)(1).

3 Section 68 permits any person "interested in any land upon which a nonconforming use or structure exists [to] apply [to the board of adjustment] in writing for the issuance of a certificate certifying that the use or structure existed before the adoption of the ordinance which rendered the use or structure nonconforming."

4 Section 70(b) authorizes a board of adjustment to "[h]ear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such a board is authorized to pass by any zoning or official map ordinance, in accordance with this act."

5 The East Hanover Zoning Ordinance defines an accessory use as "[a] use of land or of a structure or portion thereof customarily incidental and subordinate to the principal use of the land or building and located on the same lot with the principal use." East Hanover, N.J., Ordinance No. 95-3A.

6 The following issues raised during the appeal should be considered as part of that process and any subsequent judicial review in light of the record developed before the Board: (1) whether the Township's use of the property for impoundment purposes acted as a recognition that it was an existing nonconforming use; and (2) whether all uses that pre-date the zoning change were continuous and are not limited by time, abandonment, or the 1973 resolution.

7 For that reason, we need not reach the issue of whether the Board should have granted an adjournment to permit one of Northfield's witnesses to testify. We are satisfied that the proposed testimony was not relevant to the interpretation of the 1973 resolution, which was essentially a legal issue.

8 Because we need not consider issues not raised at the trial level, as well as issues raised for the first time in reply briefs, State v. Harris, 209 N.J. 431, 445 (2012), we grant the Township's motion to strike the arguments raised in Points II and IV of EHCS's reply brief. We also grant the Township's motion to strike matter in EHCS's reply appendix not in the record on appeal. We deny EHCS's motion to strike, except as to the photographs not in the record on appeal, which we grant.