COURTOF DAZAR INC. v. CITY OF NORTH WILDWOOD ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0206-12T2

DAZAR INC., t/a LOVE ROCK

TATTOO,

Plaintiff-Appellant,

v.

CITY OF NORTH WILDWOOD

ZONING BOARD OF ADJUSTMENT,

Defendant-Respondent.

_____________________________________

May 8, 2013

Argued March 19, 2013 Decided

Before Judges Kennedy and Mantineo.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-513-11.

Scott E. Becker argued the cause for appellant.

Dean R. Marcolongo argued the cause for respondent (Law Office of Nathan Van Embden, attorneys; Mr. Marcolongo, on the brief).

PER CURIAM

Plaintiff appeals from the August 2, 2012 judgment of the Law Division affirming the City of North Wildwood Zoning Board of Adjustment's (Board) finding that the nonconforming use of body piercing had been abandoned at Boardwalk property leased by plaintiff. On appeal, plaintiff argues the Board's determination was arbitrary, capricious and unreasonable. We disagree and affirm.

I.

We discern the facts from the transcript of the hearing before the Board on June 13, 2011.1 In 2006, plaintiff's principal, David Zarfati,2 leased the subject property located at 2301 Boardwalk in the Amusement Zone (Zone A) of Wildwood's Boardwalk. Prior to plaintiff's tenancy, Florence Harris3 operated a business known as "24th Street Tattoos" where she provided body piercing and tattooing services on the property, starting in 1991. In order to engage in the business of tattooing and body piercing, Harris was required yearly to obtain a separate mercantile license for each activity. In 1994, the City passed Ordinance 276-26 prohibiting tattooing and body piercing in Zone A.4 However, both practices were grandfathered in as nonconforming uses on the property pursuant to N.J.S.A. 40:55D-5.

The record reflects that Harris applied for a renewal of her tattooing license but not for her body piercing license on June 29, 2004, thereby limiting her operation to tattooing. This license allowed her to provide tattooing services on the property through June 30, 2005. There is no documentation provided with respect to any application for license renewals in 2005.5 The record before us reveals that the next license application was filed by plaintiff in 2006 for tattooing only and was valid from June 2, 2006, through May 31, 2007.6 At the time of the 2006 application, plaintiff leased the property and had, in effect, taken over Harris's business, renaming it "Love Rock Tattoo." In 2007, 2008, and 2009, plaintiff applied for a tattooing license as well as a body piercing license and was denied the latter each year. However, in 2010, a body piercing license was mistakenly granted. In 2011, the plaintiff's application for a body piercing license was again denied after the zoning officer had determined such use was nonconforming in Zone A and the prior nonconforming use had been abandoned. In June 2011, plaintiff brought two applications before the Board seeking: (1) to expand the current nonconforming use into the adjacent building; and (2) to seek Board review of the determination by the zoning officer that the activity of body piercing had been abandoned on the property.7

At the hearing on plaintiff's application, he argued that the right to provide a body piercing service had never been abandoned by Harris, and that an intent to abandon could not reasonably be inferred by her failure to renew the body piercing license on the property. Plaintiff testified that Harris had not renewed her body piercing license because she "had a problem with her piercer. . . . [A]nd she didn't want to pay the cost of getting a license for that summer because she didn't have a piercer present." Plaintiff also testified that after he leased the premises he applied for a body piercing license and it was denied. Plaintiff admitted the city clerk told him body piercing "was banned on the Boardwalk." Regardless, plaintiff applied for a body piercing license yearly from 2007 to 2011. He was denied a license with the exception of year 2010 when it was issued in error by a city zoning officer.

At the hearing plaintiff presented several additional witnesses in support of his application. Ted Snyder, the owner of the property, testified that Harris had stopped her body piercing operation due to staffing problems. In his opinion, Harris never intended to abandon the use. Snyder stated:

Flo had some problems. Her main [piercer] was no longer available and one year she tried to lease it out with a partner and she didn't like the quality of work that he was doing so she kind of curtailed it until she found someone else later in the season and she finally got out of the business and [plaintiff] then took over.

. . . .

[W]hen she stopped doing the body piercing, or temporarily interrupted her body piercing, she didn't have anybody that she felt confident enough to do that and she didn't want to take on the liability with the piercer that she didn't think was up to her standards.

. . . .

She had no intention to abandon the use. . . . She just wasn't in a position to continue on.

Barbara Wooley-Dillion, a planning professional, also testified on plaintiff's behalf. Wooley-Dillion stated that, in her opinion, the plaintiff "had every intention of carrying on what previously had happened in the establishment and that's clearly demonstrated by the fact that when he went to seek his mercantile license he asked to continue body piercing."

At the conclusion of the hearing, the Board found that Harris had abandoned her body piercing operation, relying chiefly upon her failure to renew the license to engage in body piercing on the property while, at the same time, successfully renewing her license for tattooing. Subsequently, plaintiff withdrew his application seeking the Board's review of the zoning officer's finding that the nonconforming use of body piercing had been abandoned. Nonetheless, in its June 18, 2011 resolution, the Board made findings of fact in support of its conclusion that the use had been abandoned.

Thereafter, plaintiff filed a complaint in lieu of prerogative writs. In the Law Division, plaintiff argued that the Board acted in an arbitrary, capricious and unreasonable manner in finding the use had been abandoned. Plaintiff contended there was no basis for the Board's determination given that the character of the business did not change and argued, "why would [Harris] give up something that makes [her] property more valuable[?]" Plaintiff asserted the Board based its decision primarily on the fact that it did not want such uses on the Boardwalk.

The trial court, after reviewing the record, concluded that the Board's determination was "amply supported by the record and was not arbitrary, capricious or unreasonable." The court applied the two prong test for abandonment we articulated in S&S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super. 603, 613 (App. Div. 2004) stating:

[T]he court is satisfied that the record supports a finding that there was an intent to abandon. . . . The Board members . . . ultimately found that Harris' action in leaving the business was more illustrative of her ultimate intent. This court agrees. For whatever reasons, Harris ultimately ceased operating the body piercing portion of the business and that operation has never been resumed. . . . Thus, the [Board] members found that Harris, in walking away from the body piercing portion of the business, while keeping the tattooing portion, indicated an intent to abandon and this court agrees with the Board's finding.

The court further found this failure by Harris to obtain the appropriate license, "strongly implie[d] a release of an interest in the matter."

On appeal, plaintiff raises the following arguments:

Point I

THE APPELLANT PROVED BY UNCONTRADICTED TESTIMONY AND EXHIBITS THAT THERE WAS NO INTENT TO ABANDON THE ACTIVITY OF BODY PIERCING AT THE SUBJECT PREMISE.

POINT II

THERE EXISTS INADEQUATE EVIDENCE IN THE RECORD TO SUSTAIN A CONCLUSION THAT THERE HAD BEEN AN INTENT TO ABANDON THE USE OF THE PROPERTY FOR THE ACTIVITY OF BODY PIERCING.

II.

The scope of our review of the action of a local land use board is limited. "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. . . . A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). 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 Enterprises 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 Adjustment, 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 82.8

III.

Plaintiff's argument that the nonconforming use had not been abandoned as a matter of fact or law is without merit. We briefly review the applicable governing standard.

"[A] nonconforming use is 'a property right, a part of the land title, that [can] only be extinguished by acts or omissions indicating an intention to abandon it.'" Scavone v. Borough of Totowa, 49 N.J. Super. 423, 428 (App. Div. 1958) (quoting State v. Casper, 5 N.J. Super. 150, 154 (App. Div. 1949)). The trial court appropriately dismissed plaintiff's application utilizing the test for abandonment we articulated in S&S, supra, 373 N.J. Super. at 613-14. In S&S we 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.

[Ibid. (citing Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16-17 (Ch. Div. 1969)).]

Temporary non-use does not constitute abandonment of a nonconforming use. Children's Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super.350, 357 (App. Div. 1996). However, as we noted in S&S, "[i]n cases . . . where cessation of active use is the circumstance that creates the issue of entitlement to resume active use, the owner will invariably state that his or her intention was to continue the use[,]" and, as such, "[a]n unsubstantiated assertion of intention" cannot defeat the elimination of the nonconforming use. Supra, 373 N.J. Super. at 614. Rather, the applicant must demonstrate that his or her intention to continue the use was continuing and definite by a preponderance of the evidence. Ibid. (citing Villari v. Zoning Bd. of Adjustment of Deptford, 277 N.J. Super. 130, 137 (App. Div. 1994)). This intention must be substantiated by all of the circumstances surrounding the cessation of the use, and must be supported by objective evidence and reasonable inferences from such evidence. Id.at 614-18. Thus, plaintiff's assertion that the test for intent under S&Sis a completely subjective one is erroneous.

The findings and conclusions of the trial court are amply supported in the record. The record demonstrated that abandonment occurred prior to plaintiff's tenancy when Harris failed to renew her body piercing license. This failure to renew the license was an "objective manifestation" of Harris's intent and "carrie[d] a sufficient implication that [Harris] neither claimed nor retain[ed] any interest" in the nonconforming use of body piercing. S&S, supra, 373 N.J. Super. at 613, 618. As such, the use was abandoned before the plaintiff began his operation. Plaintiff failed to meet his burden of proof with respect to this issue in both the hearing before the Board and in the trial court.

A

1 The facts derived from the transcript of the hearing are supplemented by documents found in the appendices of the briefs supplied to this Court.

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

3 There is some discrepancy in the record regarding Harris's first name. Further, no party in this action knows her current whereabouts.

4 It is unclear from the record as to when Ordinance 276-26 effectively banned these activities; however, it is clear under the current ordinance body piercing is banned in Zone A. Ordinance 276-27 allows for body piercing as "personal services" in Zone B of the Boardwalk.

5 There is some discrepancy in the record of precisely when Harris stopped the practice of body piercing on site. The record supplied does not contain any evidence that a body piercing license was granted or even applied for in 2004, 2005 or 2006.

6 It is uncontested that the practice of tattooing on site qualifies as a nonconforming use under protection of N.J.S.A. 40:55D-5.

7 The expansion of the nonconforming use to include the activity of hair braiding was granted by the Board and is not a subject of this appeal.

8 Plaintiff incorrectly contends in his reply brief that the trial court utilized the incorrect standard in affirming the decision of the Board. While we recognize raising an issue for the first time in a reply brief is improper, Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), for the sake of review we find that the trial court utilized the appropriate standard of review.