TRENT PUGH v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF ASBURY PARK

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5590-08T25590-08T2

TRENT PUGH,

Plaintiff-Appellant/

Cross-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

OF THE CITY OF ASBURY PARK,

Defendant,

and

YVONNE CLAYTON,

Defendant-Respondent/

Cross-Appellant.

 

Argued March 9, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4758-08.

Gary E. Fox argued the cause for appellant/cross-respondent (Fox & Melofchik, LLC, attorneys; Mr. Fox, on the brief).

Gene J. Anthony argued the cause for respondent/cross-appellant.

PER CURIAM

Plaintiff Trent Pugh appeals from a final judgment of the Law Division finding defendant Yvonne Clayton entitled to a valid preexisting, non-conforming use of a driveway that encroached partly on plaintiff's property, thereby reversing a contrary determination of defendant Zoning Board of Adjustment of the City of Asbury Park (Board). Clayton cross-appeals that portion of the Law Division order holding that various preclusion doctrines did not bar the parties from litigating the matter despite a Chancery Division final judgment regarding the same driveway, and granting defendant a prescriptive easement. We affirm.

Plaintiff owns residential property at Block 80, Lot 9.01, on Cookman Avenue in Asbury Park (Lot 9.01), which he purchased in 2004. Defendant, Yvonne Clayton (defendant), owns adjoining property located at Block 80, Lot 8.01, on Cookman Avenue (Lot 8.01), purchased by her parents Robert and Lucille Clayton on February 28, 1955, and then later transferred to her on October 6, 1993. Both lots had been commonly owned by the Bariscillo family since 1907. Previous to plaintiff's purchase, Milford and Annette Stanley owned Lot 9.01 since March 1, 1954, and prior to the Stanleys, the property was owned by Elizabeth Wengler since February 27, 1948.

A common driveway running from Cookman Avenue exists between the two properties and has since 1907. According to surveys, the concrete driveway is 7.80 feet wide in the front and 7.60 feet in the rear. It encroaches upon plaintiff's property 3.1 feet at the front and 3.0 feet in the rear. City ordinances in effect since 1945 require a minimum residential driveway width of ten feet.

The concrete driveway leads to a garage at the rear of defendant's property, most likely constructed, barn-style, in 1907 as well. At least as of the time of the Clayton family purchase in 1955, the backyard garage was used to house an automobile and other storage. Defendant continues to use the driveway for vehicular ingress and egress and the garage for storage of her vehicle.

Shortly after purchasing Lot 9.01 in 2004, plaintiff erected a fence along his property line bordering the driveway, without consulting defendant. The fence prevented defendant from using her driveway as she and her family had done since their purchase of the property in 1955, prompting her to file a lawsuit against plaintiff in the Chancery Division seeking mandatory injunctive and declaratory relief. Defendant claimed that ever since the Claytons owned the property in February of 1955 until the present, the subject driveway and garage were utilized continuously, openly, notoriously, adversely and exclusively, and sought title to the contested portion of the subject driveway or, alternately, a prescriptive easement or easement by necessity. Plaintiff opposed, arguing that defendant's possession was not hostile, exclusive or uninterrupted, and additionally, the driveway was not a legal driveway in accordance with the City's development regulation requirements.

At a subsequent trial on January 30, 2007, defendant proffered evidence of the age and use of the driveway. In particular, Milford Stanley, son of the Stanleys who owned Lot 9.01 at the time the Claytons purchased Lot 8.01, testified that both the garage and driveway were continuously used for purposes of motor vehicles by defendant, defendant's family, and Adelaide Bariscillo, the original owner of Lot 8.01. There was also evidence demonstrating that the entire neighborhood had similar driveways, narrow and leading back to garages behind the homes. In this regard, the Chancery Division judge made a personal inspection of the two properties and the driveway.

In his findings of fact at the close of evidence, the judge concluded that the driveway fit the overall scheme of the neighborhood: "[s]o what I have to presume is that many, many, many years ago when these home[s] were built, that was the size of the driveways and that was pretty much consistent with the neighborhood as it's gone along." He noted that:

[I]t is clear to me from my view that the garage has been there for a long period of time. And it's clear to me from my view that there was the ingress and egress that Mrs. Clayton and everybody else has testified to. And that there is, that a car can get down there with three inches on either side.

The Chancery Division judge made further findings.

The Court finds that on February 28th of 1955, property located at [Lot 8.01 in] Asbury Park, New Jersey, was purchased by Robert and Lucille Clayton from Mrs. Bariscillo by deed and transfer. At the time, there was an existing concrete driveway between [the Lots], which this Court has now viewed.

The Clayton family had a garage in the backyard for the purposes [of] housing an automobile and for other storage, and [it is] clear to the Court that the garage has been there forever. I have never seen such great concrete blocks. I mean, they almost look like blocks of granite. They don't make them that way anymore, and it's clear to me that [has] been there for a very long time.

Although raised by plaintiff in his responsive pleading, the judge specifically stated that he would not consider the issue of whether defendant's driveway was in accordance with the City's ordinance requiring driveways to be a minimum of ten feet in width. He stated "[t]he issue before me is whether or not there has been use of that driveway in the past so that she can continue to use that driveway. I'm not saying she's legally using that driveway[,]" and "I do not make any decisions today [as to] whether or not that driveway conforms with the zoning ordinance."

In his final order of May 10, 2007, the judge ruled:

that the aforesaid driveway and [defendant]'s backyard garage has been used by the Clayton family for well over fifty years and appears to have existed prior to the Clayton family's purchase of the property, since at least 1907, and was utilized throughout that time for motor vehicle ingress and egress as access to the backyard garage, which was also utilized to store motor vehicles as well as other property; and that this use is found by the Court to have been open, continuous, exclusive, adverse and hostile and notorious for the time period required by New Jersey Statute for establishing a Prescriptive Easement[.]

Thus, the court granted defendant and her successors a permanent prescriptive easement and a right to utilize the driveway for the purposes of ingress and egress only, and further, permanently enjoined plaintiff and his successors or assigns from interfering with the use of the driveway for motor vehicle ingress and egress to the backyard garage. Consequently, plaintiff was ordered to remove the fence and restore the driveway to its previous condition.

On October 16, 2007, defendant filed the first of five motions for enforcement of litigant's rights, claiming plaintiff had failed to comply with the Chancery Division's final judgment. Plaintiff responded by seeking to have the Zoning Officer enforce the City Ordinance requiring driveways to be a minimum of ten feet in width. When the Zoning Officer refused, plaintiff then filed an appeal with the Board, claiming that the driveway did not meet the minimum width required by ordinance and did not qualify as a pre-existing, non-conforming use that would exempt the driveway.

The Board held a series of hearings on plaintiff's appeal, at which time Clayton testified that she had spoken to the grandson of Adelaide Bariscillo, who "indicated that the garage was used for parking cars and that the driveway was used for vehicular traffic." Defendant also produced Helen Pike, an historian on land preservation, who studied the development of Asbury Park's west side, including Cookman Avenue, dating back before 1945. On the basis of her research, the expert concluded that residents at that time were listed in trades and businesses that required the use of motor vehicles, and due to the circumstances of Asbury Park, required the storage of vehicles in a driveway and/or garage. Following these hearings, the Board granted non-conforming use status to defendant, finding that while defendant had failed to provide sufficient proof of a pre-existing, non-conforming use, the Board was prohibited from deciding the issue as the matter was previously litigated and resolved in the Chancery Division.

Plaintiff then filed an action in lieu of prerogative writs in the Law Division, challenging the Board's application of issue-preclusion doctrines to bar relief, since the Chancery Division decision was not dispositive of the zoning issue, and seeking to affirm the Board's finding that defendant failed to prove a pre-existing, non-conforming use of the driveway. As to the latter, plaintiff argued that "[n]ot one witness was produced by Defendant [] that could testify to the use of the paved way for vehicular traffic prior to 1945", and "[t]here was no sworn testimony establishing any use by vehicles of the paved way prior to 1945." In her answer, in addition to issue-preclusion, defendant argued:

[b]oth parties stipulated that a garage and cement driveway leading from the street to the garage existed since at least 1907. Testimony was accepted by the Plaintiff and totally undisputed that vehicular traffic utilized the driveway and the garage since at least 1947 and an expert witness testified over objections of the Plaintiff, that based on the historical records of the individuals and professions pursued by those individuals who lived at both [properties]; the common driveway had to be utilized by vehicular traffic.

Following a hearing, the Law Division judge determined that the issue-preclusion doctrines of res judicata, entire controversy, collateral estoppel and equitable estoppel did not apply. However, the judge found that there was "overwhelming" evidence in the record to establish that defendant achieved pre-existing, non-conforming status, and therefore reversed the Board's contrary holding as arbitrary, capricious and unreasonable. The judge specifically concluded that "[t]here can be no other interpretation of the physical situation of this garage, driveway and street. No matter how much deference is shown to the Zoning Board's interpretation of the evidence, it is impossible to reach any other conclusion" than that the driveway was used prior to 1945 for vehicle ingress and egress. This appeal and cross-appeal follow.

Plaintiff essentially argues that the trial court exceeded its authority when it reversed the Board's decision and found that defendant had presented sufficient evidence to show a pre-existing, non-conforming use. We disagree.

Granted, the Law Division must accord substantial deference to the decisions of the Board. N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). The burden is on the challenging party to show that the Board's decision was arbitrary, capricious, or unreasonable. We apply the same standard of review as the trial court. D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009); see also Bressman v. Gash, 131 N.J. 517, 529 (1993). However, this highly deferential standard of judicial review does not apply to purely legal questions affecting the Board's decision. In such circumstances, a presumption of correctness does not apply, and the court must determine for itself whether the Board understood and applied the law correctly. D. Lobi Enters., Inc., supra, 408 N.J. Super. at 352 (citing Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Similarly, a trial court's judgment and the factual

findings on which it is based should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice, and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.

[Mountain Hill, L.L.C. v. Twp. Comm. of Twp. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (internal citations omitted)), certif. denied, 199 N.J. 129 (2009).]

"Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Id. at 192-93 (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484).

Pertinent to the matter at hand, N.J.S.A. 40:55D-68 protects any non-conforming use or structure existing at the time of the passage of the zoning ordinance, and provides that it may be continued upon the lot upon which it exists. "A prior nonconforming use is ordinarily restricted to its character and scope at the time the ordinance making it a nonconforming use was enacted." Bonaventure Intern., Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002).

The issue is whether the present use is substantially similar to the use which existed at the time of adoption of the zoning ordinance, or whether there has been an illegal extension of the use. If the present use is substantially similar to the use at the time it became nonconforming, it will be permitted to continue.

[Id. at 433 (citing Arkam Mach. & Tool Co. v. Lyndhurst Twp., 73 N.J. Super. 528, 532 (App. Div. 1962)).]

The burden of proving the existence of a nonconforming use is on the party asserting it. Bonaventure, supra, 350 N.J. Super. at 432. The party must show the use by a preponderance of the evidence. S&S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Stratford, 373 N.J. Super. 603, 614 (App. Div. 2004).

The Board, when hearing applications regarding pre-existing non-conforming use, as is the case here, acts in a quasi-judicial capacity. Although technical rules of evidence are not applicable to the hearing, N.J.S.A. 40:55D-10(e), actions by the Board, in order to be sustained by the courts, must have a record containing competent and credible evidence supporting the Board's action.

Boards of adjustment are not controlled by the strict rules of evidence and procedure applicable to courts. Hence, even if the evidence would not be normally admissible in a formal judicial proceeding, its admission in a board of adjustment hearing cannot impair the validity of the board's determination, so long as the record supports the ultimate conclusion.

[Seibert v. Dover Twp. Bd. of Adjustment, 174 N.J. Super. 548, 551 (Law Div. 1980) (quoting Kenwood Assoc. v. Englewood Bd. of Adjustment, 141 N.J. Super. 1, 7 (App. Div. 1976) (internal citations omitted)).]

Here, not only did plaintiff's counsel incorrectly argue that defendant had to prove a valid pre-existing, non-conforming use by clear and convincing evidence, but the Board seemed to have applied this heavier burden in finding defendant's proofs wanting. Even assuming that the Board applied the correct standard, the Law Division judge did not act arbitrarily, capriciously, or unreasonably in finding that defendant had demonstrated by a preponderance of the evidence that the driveway had been used for motor vehicle ingress and egress prior to 1945.

At the hearings before the Board, both parties stipulated that the garage at the end of the driveway was built sometime around 1908 and that defendant's home was constructed around 1907. Defendant further testified that the garage had been used to park cars by her family and, based on information from the grandson of Adelaide Bariscillo, by the Bariscillos before them. Moreover, Pike, the historian, testified that according to her research, individuals who had occupied both 908 and 910 Cookman Avenue Lots in the early 1900s were in professions that required the use of motor vehicles, from which she deduced that the driveway in question must have been utilized for motor vehicle ingress and egress prior to 1945. Further, there was evidence that the driveway in question fit the overall scheme of the neighborhood.

There was also before the Board the record of the earlier Chancery Division litigation which allowed the General Equity judge in that case to conclude

that the aforesaid driveway and [defendant's] backyard garage have been in use by the Clayton family for well over 50 years and appears to have existed prior to the Clayton family's purchase of the property, since at least 1907, and was utilized throughout that time for motor vehicle ingress and egress as access to the backyard and garage[.]

This finding, which led to the grant of a prescriptive easement to defendant, was never appealed. Aside from whether the Chancery Division judgment has dispositive effect here by virtue of the doctrine of collateral estoppel, a question we need not decide given our ultimate resolution here, suffice it to say, at the very least, the evidence upon which that judgment rests was properly considered by the Law Division. Therefore, based on all the evidence before the Board, we conclude there was ample credible proof to support the Law Division's finding that the driveway had been in use before 1945, that defendant, accordingly, had established a valid pre-existing, non-conforming use, and that the Board's contrary finding was arbitrary, capricious, and unreasonable.

 
Affirmed.

Though in the matter before the Chancery Division, Clayton was the plaintiff and Pugh the defendant, to avoid any confusion, Clayton is referred to as defendant and Pugh plaintiff throughout this opinion.

In Milford Stanley's deposition, he testified:

"Question: At the time that Ms. Bariscillo owned the property, that you can recall, was that garage being used?

Answer: Yes, sir.

Question: How was it being used then?

Answer: They kept a car, vehicle, they kept a lawn mower, they kept a lot of stuff inside. I saw them take [it] in there, yes, sir.

Question: And the driveway was being used at that time?

Answer: Yes sir.

Question: It was being used for motor vehicles?

Answer: Yes sir."

Plaintiff's appeal from this order was dismissed as untimely.

For instance, plaintiff's counsel argued: "And it's their burden to do that and in order for you to find that there's a preexisting nonconforming use, you have to find that they clearly and convincingly have proven to you that there were vehicles going up and down that driveway and parking in the garage before 1945."

During voting, one Board member stated: "However, as I understand our responsibility, the burden of proof on [defendant], is to prove with clear and convincing evidence that the driveway has been used continuously to access the rear yard and the garage since before 1945. I don't believe you have done that." Another Board member, stated: "And it is clear and convincing to me that this is a common driveway and I agree with the court's decision and this predates the City's ordinance of 1945."

(continued)

(continued)

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A-5590-08T2

April 16, 2010