STATE OF NEW JERSEY v. THOMAS DUMANSKY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1683-04T21683-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS DUMANSKY,

Defendant-Appellant.

___________________________________

 

Argued December 7, 2005 - Decided

Before Judges Skillman and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. M-04-064.

Vincent E. Halleran, Jr. argued the cause for appellant.

Thomas G. Gannon argued the cause for respondent (Hiering, Gannon and McKenna, attorneys; Mr. Gannon, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction in the Law Division, based on a de novo review of the record in the Howell Municipal Court, of violations of various subsections of a Township of Howell zoning ordinance.

The ordinance provisions defendant was found to have violated state:

An office activity, carried on for gain by a resident in a dwelling unit, clearly accessory and secondary to the use for living purposes, shall be a permitted accessory use in residential zone districts, provided:

a. The use is operated by or employs in the residence only, only a resident or residents who are permanent full-time residents of the dwelling unit and no other person;

b. No non-resident employees, customers, or business invitees or guests shall use or visit the dwelling unit for business purposes;

. . . .

d. There shall be no exterior storage of materials;

e. There shall be no change to the exterior of buildings or structures because of the use, and no outside appearance of a business use, including, but not limited to, parking, storage, or lights;

f. The use shall not operate any equipment or process that creates noise, vibration, glare fumes, odors or electrical or electronic interference, including interference with telephone, radio or television reception, detectible by neighboring residence;

g. The home office use operates solely within the residence, no outdoor activities permitted; the home office use shall not be evident from outside of the home;

The Law Division imposed a $500 fine for each violation. The judgment of conviction also provided:

[D]efendant has thirty (30) days to comply with the condition of sentence, previously imposed by the Municipal Court and now imposed by the Court, that all commercial vehicles and equipment from the defendant's property be removed and all commercial activity, which was the subject of the summons', cease and desist within 30 days herein of this sentencing. . . .

On appeal, defendant presents the following arguments:

I. THE COURT BELOW ERRED IN APPLYING THE SUPREME COURT'S DECISION IN A CIVIL SUIT TO THE DEFENSE OF A QUASI-CRIMINAL MATTER.

II. THE TRIAL COURT ERRED IN NOT FINDING A PRIOR NON-CONFORMING USE UNDER THE TOWNSHIP ORDINANCE.

a. The trial court erred in not considering the uncontroverted fact of the continuing use.

b. The trial court erred in not considering the October 11, 2001 agreement as evidence of a conforming use.

III. IN TRIAL DE NOVO ON RECORD BELOW TRIAL COURT ERRED IN ALLOWING SITE VISIT BY MUNICIPAL COURT JUDGE.

We reject these arguments and affirm defendant's convictions substantially for the reasons set forth in Judge Kreizman's comprehensive oral opinion of November 12, 2004. Even if the October 11, 2001 sentencing agreement relied upon by defendant were considered to constitute a binding recognition of a nonconforming use, the uses of defendant's property upon which his convictions were based far exceeded the limited storage of trailers and equipment permitted under that agreement. If defendant claimed a broader right to nonconforming uses of his property than the limited ones permitted under that agreement, he was required to make an appropriate application to the Board of Adjustment under N.J.S.A. 40:55D-68.

 
Affirmed.

(continued)

(continued)

4

A-1683-04T2

December 20, 2005

 


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