SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5692-95T1
JOSEPH B. PARUSZEWSKI,
Plaintiff-Appellant,
v.
TOWNSHIP OF ELSINBORO,
TOWNSHIP COMMITTEE OF
ELSINBORO and THE ZONING
BOARD OF ADJUSTMENT FOR THE
TOWNSHIP OF ELSINBORO,
Defendants-Respondents.
Argued January 7, 1997 - Decided February 20, 1997
Before Judges Michels and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Salem County.
Patrick F. McAndrew argued the cause for
appellant.
John G. Hoffman argued the cause for
respondent.
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
This is an appeal from a judgment of the Superior Court, Law Division, affirming a decision of the Zoning Board of Adjustment for the Township of Elsinboro. Plaintiff applied to the zoning board pursuant to N.J.S.A. 40:55D-68 for "certification that the use" of a field on his family's farm as an airstrip "existed before
the adoption of the ordinance which rendered the use . . .
nonconforming." Ibid. After a plenary hearing, the zoning board
refused to issue the certificate. Plaintiff filed an action in
lieu of prerogative writs in the Law Division, lost there, and now
appeals to this court. He contends the decision of the zoning
board should have been reversed by the trial court for two reasons:
(1) the governing body of the Township of Elsinboro, through its
attorney, appeared before the zoning board in opposition to the
application; and (2) the zoning board's decision was arbitrary,
capricious, and unreasonable. We disagree with plaintiff's
contentions and affirm the judgment.
The Township of Elsinboro's first land use ordinance, adopted in 1966, did not address the subject of airstrips directly or indirectly. Section 601 of the 1968 land use ordinance permits in plaintiff's zone "[c]ustomary and conventional farming operations . . . ." Section 1101 of this ordinance prohibits in each zone all uses not expressly permitted, thereby indirectly prohibiting airstrips in plaintiff's zone. It further provides, "the lawful use of land . . . existing at the date of the adoption of this Ordinance may be continued, although such use . . . does not conform to the regulations specified by this Ordinance for the zone in which such land . . . is located," provided that "no non-conforming use may be expanded."
According to the testimony, in 1979, the governing body adopted an ordinance which permitted as a conditional use in
plaintiff's agricultural zone a "basic utility airport." The
concept was not otherwise defined.
On January 1, 1992, the governing body adopted Ordinance 82-1
declaring that "basic utility airports be eliminated as a
conditional use . . . ."
According to plaintiff's testimony before the zoning board,
his family's farm contains 135 acres. On the farm's southern
boundary, abutting Walnut Street, is an unimproved field which
plaintiff said was a utility airport or airstrip used by himself,
his family, and friends since somewhere between 1958 and 1962. On
rare occasions, helicopters used the field. On all other
occasions, the craft were small, single engine, fixed wing
airplanes. Plaintiff wanted to use the field for airplanes about
five to twenty times per year. He claimed that had been its annual
use. In 1989, the Township's zoning officer directed no further
use of the field as an airstrip.
Plaintiff was forty-eight years old at the time of the zoning
board hearing. His family had owned the farm since 1950. He said
he got his pilot's license around 1966. He did not land any planes
on the field from 1958 to 1962. The first plane in which he had an
ownership interest was acquired sometime after 1974. It was not
kept at the farm. He was in the military from 1966 through 1969,
and during that time he would visit the farm six or seven times a
year. Later he changed that to two or three times a year after it
was brought out that he had been stationed in California, Nevada,
Louisiana, and Texas, but then he reasserted that the visits
happened about six times per year. When asked how he arrived at
the figure of five to twenty times per year for use of the field as
an airstrip, he said: "I could legally say it was more than one
and less than a thousand. I know it was more than one and less
than a thousand." He admitted that he had not seen someone land
there at least once in every year. He was asked, "So, there has
been at least a five year period when no airplanes landed there?"
He replied, "Yeah, but not constant." He was then asked, "So, at
least once every 10 years, you personally observed an airplane
land?" He replied, "I would say that." He also indicated the
field was rented to other farmers who raised corn and other crops
there and that planes would land on the crops without damaging
them. He could not recall whether a helicopter landed there from
1970 to 1992. He also indicated that planes landed on various
parts of the farm over the years, though he claimed they mostly
landed on the field in question.
The next witness called by plaintiff, a Mr. Bacon, testified
that he saw planes land on the site no more than three or six times
from 1971 to 1989.
Plaintiff's father, Ray Paruszewski, testified that friends
started landing planes on the field in the early 1960's. He said
that sometime there would be landings 3 or 4 times a month and
sometimes a month would go by with no landings. He said there was
some usage every year until 1989. In answer to a leading question,
he agreed with his son's estimate of five to twenty landings per
year, but also said he did not recall exactly. He said his other
son, Jeff, used the field for landings from 1968 (when the family
purchased a plane which was kept at Salem Airport) until 1974. He
also said the field in question had been used for growing crops
every year since 1951. No one in the family owned a plane before
1968.
A number of witnesses testified in opposition to the
application. One indicated that he lived across the street from
the farm and was home and outside most of the time. In the
preceding thirty-eight years, he had only seen four planes and one
helicopter use the field. Another witness, an abutting neighbor
since 1974, said she saw no planes and her husband saw one. The
last opponent said she had lived within about 400 feet of the field
for twenty-seven years until she moved away in 1987 or 1988.
During that time, the field was used by planes only once or twice,
the last use occurring more than five years before she left.
The zoning board adopted Resolution No. 94-11-01 which
recounted at length the testimony of the various witnesses and then
concluded that the application should be denied for the following
reasons:
[I]t is clear that there has been aircraft
activity at the Paruszewski farm which
activity pre-dates the original Township
Zoning Ordinance which was adopted on February
27, 1968. While the applicant testified that
this activity was fairly frequent, between 5
and 20 times per year, much of his testimony
was contradicted by neighbors and his father.
In addition, the Board concludes that much of
the testimony of the applicant is not
credible. * * * Although all of the other
witnesses testified that there was aircraft
activity on the Paruszewski farm, the credible
testimony is that it began in approximately
1960 and was very sporadic. * * * The
neighbors, some of whom lived across from the
. . . farm for 30 years, testified that the
number of take-offs and landings were (sic)
very low and characterized them as unusual
events which attracted their attention. * * *
[T]his activity did not rise to the level of a
principal or accessory use for the property. *
* *[T]he sporadic, occasional landing of
aircraft on the . . . field would not
customarily be incidental to the principal use
of the property nor is it so necessar[ily] or
customar[ily] associated with the principal
use to be expected that the Township Zoning
Ordinance could not have been expected to
prohibit it. * * * [T]he aircraft activity
which occurred . . . prior to the adoption of
Ordinance No. 68-1 [the 1968 Ordinance] does
not attain the level of a principal or
accessory use subject to protection pursuant
to N.J.S.A. 40:55-68 and Section 3.6 of the
Township Land Development Ordinance.
The party asserting the existence of a nonconforming use prior
to the adoption of the relevant zoning ordinance has the burden of
proof. N.J.S.A. 40:55D-68; Weber v. Pieretti,
72 N.J. Super. 184,
195 (Ch. Div.), aff'd,
77 N.J. Super. 423 (App. Div. 1962), certif.
denied,
39 N.J. 236 (1963). When the zoning board rejects an
application to certify a use as nonconforming that decision is
entitled to judicial support if it is based upon substantial
evidence. Kramer v. Board of Adj., Sea Girt,
45 N.J. 268, 296
(1965).
The governing section of the Municipal Land Use Law, N.J.S.A.
40:55D-68, employs without definition the critical phrase
"nonconforming use." To define this concept, we must refer to the
case law and other authority.
Here the principal use of the plaintiff's property was for a
farm and residence. He contends use of the field as an airstrip was
an accessory use. An airstrip can be an accessory use to a farm
and residence. Schantz v. Rachlin,
101 N.J. Super. 334, 336-42
(Ch. Div. 1968), aff'd o.b.,
104 N.J. Super. 154 (App. Div. 1969).
However, such use can also be barred by local ordinance, Id. at
342, as it was in this case from 1968 to 1979, and after January 1,
1992.
The critical question is whether the law requires a certain
level of activity for a nonconforming activity to be considered a
"use." Clearly, a mere intention to use the property is not enough
to establish use. Morris County Land, etc. v. Parsippany-Troy
Hills Tp.,
40 N.J. 539, 550 (1963). "'* * *[I]t is an existing use
occupying the land, that the statute protects; the statute does not
deal in mere intentions.'" Ibid. (citing Martin v. Cestone,
33 N.J.
Super. 267, 269 (App. Div. 1954).
In State v. Gargiulo,
103 N.J. Super. 140 (App. Div. 1968),
the court said:
While business signs may attain the
status of nonconforming uses, the temporary
use of a sign or banner, if and when the
advertising policy of a manufacturer of a
product calls for it, does not amount to a
nonconforming use . . . . The situation here
involved is to be distinguished from that
found in Civic Association of Dearborn
Township, Dist. No. 3 v. Horowitz,
318 Mich. 333,
28 N.W. 2d 97 (Sup. Ct. 1947), cited by
defendant, where it was held that operation of
a carnival, which was closed down for the
winter when an ordinance prohibiting such use
was enacted, constituted a nonconforming use
which could be continued. There, as in
Burmore Co. v. Smith,
124 N.J.L. 541 (E. & A.
1940), the court was dealing with a use which
was necessarily seasonal in its nature, as
distinguished from use of the subject premises
on an all-year-round basis. Here, the display
of the sign was not necessarily seasonal, but
depended upon whether and when it was called
for by Tidewater's current advertising
program. * * * An accessory use may not be
permitted to depend upon the whim or ingenuity
of those engaged in sales promotion. It
requires considerably more substance . . . .
In Cox, New Jersey Zoning and Land Use Administration, §11-1.2
at 191 (1995) the following comment on State v. Gargiulo, supra,
appears:
From Gargiulo it is evident that the use to be
protected must be of a continuing rather than
of an ephemeral nature.
In State v. Loux,
76 N.J. Super. 409, 413 (App. Div. 1962),
the court, in sustaining a conviction for violation of the local
zoning ordinance, noted that it was rejecting defendant's
contention that his activity constituted maintenance of a
nonconforming use in part because "[t]he testimony adduced by
defendant as to the use of the lots was imprecise and nebulous."
The court went on to observe:
There is no convincing proof as to exactly on
which of these lots boats may have been
placed, when they were stored, and by whom
they were put there. If boats were stored,
the users were at best trespassers, the use
intermittent, and the time of such use
indefinite. A nonconforming use may not be
erected on so insubstantial a foundation.
We do not perceive State v. Loux, supra, as turning on its reference to the users as trespassers, even though that fact may
have provided additional support for the court's conclusion.
Rather, we perceive its central holding to be that a nonconforming
use may not be established by nebulous and imprecise evidence which
indicates at most intermittent use at indefinite times. To put the
matter more generally, "for rights in a previously existing use to
be protected under the doctrine of vested nonconforming uses" one
of the factors which must be proven is that the use "be
sufficiently substantial to warrant invocation of constitutional
protection." 4 Rathkopf, The Law of Zoning and Planning, §51.01
at 51-9 (4th ed. 1994).
Plaintiff's evidence wholly fails to meet the principles of
law stated above. The zoning board was entitled to reject his
testimony as incredible, as it did. His father's testimony was
equally imprecise if not equally disingenuous. The evidence from
the opponents was clear and strong. The zoning board was entitled
to credit it and draw the obvious conclusion that a plane landing
or taking-off from this field was an extremely rare and remarkable
event and that the actual use was at best ephemeral, intermittent,
and indefinite. Since the zoning board's findings were based on
substantial evidence, the trial court was correct in upholding
them, and we are bound to do likewise. Kramer v. Board of Adj.,
Sea Girt, supra.
Plaintiff contends that the entire proceeding before the zoning board was marred because of the presence of the Township Attorney appearing in opposition to the application on behalf of
the governing body. This, in his view, requires a reversal and
grant of the nonconforming use by this court. We disagree.
Before discussing the law, some additional facts should be
noted. On September 6, 1994, the governing body adopted a
resolution to consider in closed session what its position should
be with respect to plaintiff's pending zoning board application.
The minutes of that meeting recite the following:
It was represented that the purpose of the
meeting was to determine what position the
Township should take in connection with an
application filed on behalf of Joseph B.
Paruszewski by Patrick McAndrew, Esquire with
the Board of Adjustment requesting that it
determine if an airstrip may be constructed
and utilized upon his property as a non-conforming use.
It was determined that the Township Solicitor
as well as the Zoning Officer should appear at
the Board of Adjustment meeting and present
evidence establishing that the use is not non-conforming and/or was abandoned. Said
position was taken by the Township based upon
the Planner's opinion that operating an
airport at said vicinity would be detrimental
to the Master Plan and zoning scheme.
At the zoning board hearings, the Township attorney said he was appearing on behalf of the governing body and on behalf of those citizens who opposed the plaintiff's application (there was no indication that he had actually been retained by the citizens, and his comment about representing them was probably not intended to convey the idea that he was actually their lawyer, other than indirectly based on his representation of the governing body). In any case, he cross-examined the plaintiff and his witnesses,
conducted the direct examination of the opposing witnesses, and
submitted oral and written argument on behalf of the governing body
against grant of the plaintiff's application.
We begin our analysis by noting that an application for a
certification of a nonconforming use is entirely within the
jurisdiction of the zoning board under N.J.S.A. 40:55D-68. There
is no appeal to the governing body. Anyone dissatisfied with the
result must seek relief by way of an action in lieu of prerogative
writs in the Law Division. Cronin v. Township Committee,
239 N.J.
Super. 611, 618 (App. Div. 1990). Consequently, this case does not
raise the kind of conflict of interest problems dealt with in South
Brunswick Assoc. v. Township Council,
285 N.J. Super. 377 (App.
Div. 1994), where the court held that a council member who appeared
in opposition to an application before the zoning board could not
thereafter vote on the matter on appeal to the governing body. Nor
are we concerned here with an action between a zoning board and a
planning board, such as occurred in Washington Tp. Zon. Board v.
Planning Board,
217 N.J. Super. 215 (App. Div.), certif. denied,
108 N.J. 218 (1987), where we held that "the planning board's
exercise of its quasi judicial power, whether right or wrong, to
treat the application as a hardship variance, should be immune from
an action at law instituted by the zoning board." Id. at 223. We
further explained:
We have no doubt that there are many
instances when a zoning board perceives an
application before the planning board as being
a special reasons, rather than a hardship
variance. If a zoning board is permitted to
institute a suit in every such instance, the
prompt and orderly review of land use
applications, envisioned by the act, would
essentially grind to a halt. Suits by co-equal agencies simply to vindicate their
respective statutory powers will unfairly
victimize the developers, particularly when no
'interested party' has seen fit to challenge
the application. Public funds, of course,
will be drawn upon to pay the legal fees of
both contestants, even though the public's
interest will not necessarily be served by the
litigation.
[Id. at 223-24.]
The governing body of a town is not a co-equal agency with the
zoning board. Charged with the responsibility of protecting the
public interests of all citizens, its responsibilities are grave
and broad. Thus in Zoning Board of Adj. of Green Brook v. Datchko,
142 N.J. Super. 501 (App. Div. 1976), the court recognized the
right of the governing body (as well as the zoning board) to
maintain an action against the owner of an "adult" bookstore to
rescind the grant of zoning variances and site plan approval
granted to the bookstore:
Moreover, as to the township plaintiff,
it may be considered a prerogative writ action
to review the actions of the zoning board,
planning board and the zoning officer alleged
to be in violation of their authority.
[Id. at 508 n.2.]
The court also said:
The township. . . and the zoning board have a substantial public interest in preserving the integrity of the zoning ordinance. If, as here, a municipal authority has been induced to grant relief in connection therewith by fraud, it need not stand idly by. It or the municipal governing body may institute an action, such as that in the present case, to rescind the relief so granted
and to enjoin what is actually a violation of
the zoning ordinance and plan. From
defendants' own application to the municipal
authorities it is apparent that the present
use of the premises would not have been
feasible without the approvals of the site
plan and the variances. Their
misrepresentations denied the municipal
agencies of an opportunity to review all of
the facts before determining the propriety of
the site plan approval, the grant of the
variances or the issuance of the certificate
of occupancy in the light of proper zoning
considerations. Judicial relief by this
action is available to these plaintiffs to
rectify what may reasonably be considered a
substantial impairment of the zoning plan.
In Township of Dover v. Board of Adj. of Tp. of Dover,
158 N.J. Super. 401 (App. Div. 1978), another panel of this court
analyzed the relationship between a governing body and the zoning
board in somewhat different terms:
"[T]he board of adjustment is an independent
administrative agency whose powers stem
directly from the Legislature and hence are
not subject to abridgement, circumscription,
extension or other modification by the
governing body. We also agree that a
necessary corollary of that principle is that
ordinarily the manner in which the board
exercises its exclusive statutory power is not
subject to monitoring by the governing body
and is therefore immune not only to direct
interference by the governing body but also to
the indirect interference of an action in lieu
of prerogative writs brought by the governing
body seeking judicial review of the board's
determinations. Our point of disagreement
turns on the fact that what the township is
here complaining of is not the manner in which
the board exercised its statutory power. Its
claim, rather, is that the board exceeded its
statutory powers and in so doing usurped the
function exclusively reserved to the governing
body by the enabling legislation. Thus, this
is not the ordinary variance case in which the
board of adjustment's action may be vulnerable
for such alleged misuses of discretion or
power, as, for example, an action taken
unwisely or imprudently, or without an
adequate factual basis in the evidence before
it, or without an adequate statement of
reasons or contrary to the governing body's
collective perception of what the public good
may permit or what the integrity of the zoning
ordinance may require. In our judgment,
review at the instance of the governing body
of such alleged errors in the exercise of
statutory authority and such disputes as to
the exercise of discretion would seriously and
perhaps irremediably undermine the board's
essential autonomy. We are therefore
satisfied that so long as the board acts
within the ambit of its authority, whether it
has acted wisely or not, and whether it has
acted correctly or not, are not matters which
the governing body itself should be able to
raise.
An arrogation of authority is, however,
quite a different matter and, in our view, is
necessarily and obviously actionable by the
body whose authority has been directly
infringed upon.
Some of what we have just quoted from the Dover case would appear to conflict with footnote 2 of Greenbrook, supra. However, we need not address that apparent conflict in this case since we are not presented with a governing body attempting to overturn a decision of the zoning board. To the contrary, the governing body is supporting the zoning board's decision, and is doing so, not as the instigator of the litigation, but, rather, as a defendant. Furthermore, the Dover case does not prohibit a governing body from having its attorney appear in opposition to a citizen's application for relief. Indeed, since Dover recognizes the governing body's right to sue the zoning board in some circumstances, implicit in
that decision is the governing body's additional right to make an
appropriate record before the zoning board.
Turning for a moment to the status of the law on the point in
question in other jurisdictions, we note the following:
The municipality in which the subject
property is situated has been held to have the
right to question and seek review of the land
use decisions of its administrative officers
or its quasi-judicial bodies such as the board
of adjustment or planning board. So, the
municipality, as such, may appeal to the local
board of appeals from the issuance of a
building permit by its building inspector or
may appear in opposition to an appeal to the
board by one who has been denied a permit or
who seeks a variance or a special permit.
Similarly, in those states in which the
zoning enabling act is patterned after the
Standard State Zoning Enabling Act, a
municipality is considered to have standing to
seek judicial review of any decision of the
board of adjustment as a matter of law.
However, the courts have not been in full
accord on this point. In most, a municipality
is a proper party to appeal from the decision
of the local board of adjustment because the
enabling act provides for such an appeal. In
these, there is no necessity for the
municipality to plead or prove "aggrievement,"
the statute distinguishing between aggrieved
persons and "any officer, department, board or
bureau of the municipality."
In others, in the absence of some
demonstration of a personal or pecuniary
interest which would qualify it as an
aggrieved party within the statute providing
for review, it is held that the municipality
has no standing to complain of the action of
the board of appeals.
In some states, it is held that
aggrievement in a public sense occurs whenever
the action of the board of appeals appears to
threaten the preservation and integrity of the
zoning plan . . . .
With respect to this standing issue, which relates in New Jersey to
what the Municipal Land Use Law describes in N.J.S.A. 40:55D-4 as
an "interested party," the Dover court observed:
We are aware . . . that in other
jurisdictions standing has been conferred by
statute upon various municipal agencies and
officers who appeal to the courts from
decisions of boards of adjustment. We do not,
however, regard the absence of statutory
standing in this jurisdiction as indicating a
legislative determination to withhold from a
governing body the right to sue to protect the
integrity of its own legislatively conferred
powers. This jurisdiction, moreover, has
historically taken a liberal approach to the
standing question in land use planning as well
as in other actions particularly where matters
of public policy are at stake.
With the principles of Greenbrook, supra, and Dover, supra, in mind, we have no doubt that the governing body in this case was wholly within its rights in appearing before the zoning board to lay before that body its views with respect to the merits of plaintiff's application. Had the governing body been unsuccessful before the board and thereafter wished to test the board's decision by an action in lieu of prerogative writs, we would have had to consider whether Greenbrook, with its endorsement of a broad right to sue, or Dover, with its more limited recognition of a governing body's right to sue its zoning board, is correct. But we need not address that issue to decide this case. Here, as noted, the governing body was brought into court as a defendant. It only wished to be heard in support of the zoning board's decision. We
see no reason for denying the governing body the right to speak out
in the public interest in such circumstances.
Affirmed.