Opinion
DOCKET NO. A-3755-12T4
03-17-2015
TOWNSHIP OF PEMBERTON, Plaintiff-Appellant, v. SAMI UTHMAN and BUSTER'S AUTO SALVAGE YARD, Defendants-Respondents.
Andrew Bayer argued the cause for appellant (Gluck Walrath, L.L.P., attorneys; Mr. Bayer, of counsel and on the brief; Jaclyn Baker, on the brief). Patrick F. McAndrew argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-0030-11. Andrew Bayer argued the cause for appellant (Gluck Walrath, L.L.P., attorneys; Mr. Bayer, of counsel and on the brief; Jaclyn Baker, on the brief). Patrick F. McAndrew argued the cause for respondents. PER CURIAM
Plaintiff Township of Pemberton appeals from the final judgment of the Chancery Division, Burlington County, dismissing its complaint for declaratory and injunctive relief. Pemberton sought to enjoin the operation of defendant Buster's Auto Salvage Yard on the ground that it violates the township's zoning ordinances. We affirm the Chancery Division's judgment.
The junkyard has been in business since the mid-1960s. Pemberton adopted a zoning ordinance in 1973 that designated the junkyard's Pepper Road location as a residential zoning district. In 1984 and 1985, the township's Zoning Board of Adjustment granted use and bulk variances to Buster's and its prior owner, Leonard Perrine. Over the years, Pemberton adopted several ordinances that imposed licensing requirements and otherwise regulated junkyard operations. Buster's never obtained a license and did not comply with all the regulations. Nor did it adhere to the terms of a settlement it reached in the 1980s with the Pinelands Commission for clean-up of its property and modification of the junkyard operations. Perrine (and his son after Perrine died) operated the junkyard essentially unimpeded for more than twenty years until Buster's was sold in 2010.
The Pinelands Commission was created under the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, and is charged with preserving, protecting, and enhancing the natural resources of the Pinelands National Reserve.
After defendant Sami Uthman purchased the junkyard, the township took action to enforce the regulations and conditions it had imposed many years earlier. In March 2011, the township filed this lawsuit to declare the junkyard an illegal use of the property and to enjoin its operation. The Chancery Division conducted a four-day bench trial in 2012 and decided the dispute in favor of Uthman and Buster's.
The testimony and documentary evidence at the trial established the following additional history of the junkyard operations and the township's regulatory efforts. In December 1982, Pemberton adopted a Property Maintenance Code that prohibited any more than one inoperable vehicle being kept on a parcel of land. The 1982 ordinance and related ones adopted in the following two years allowed an exception for junkyards that existed before the 1973 zoning ordinance, provided they applied for a license and adhered to operational standards and rules set forth in the ordinances. Buster's did not obtain a license or otherwise demonstrate that it was in compliance with the operational standards and rules.
In June 1983, the Pinelands Commission advised Buster's that the property was in violation of Pinelands regulations. Subsequently, Buster's filed an application with the Commission to remedy the violations, and also to obtain approval to expand.
At about the same time, Buster's filed an application with Pemberton's Zoning Board of Adjustment to operate a junkyard and used car dealership. After conducting a hearing, the zoning board granted a use variance in November 1984, and granted six of eight requested bulk variances in March 1985. In April and May 1985, the board granted preliminary and final site plan approvals for the expanded use of the property.
These approvals contained certain conditions, including the removal of junk cars and debris from one area of the property, the re-vegetation of that area, completion of a stone surfaced parking area, the erection of a seven-foot fence along one property line, and the planting of shrubbery in designated areas for purposes of buffering. Also in March 1985, Perrine reached a settlement with the Pinelands Commission by which Buster's would receive a required certification in exchange for adhering to a one-year performance schedule for the clean-up of the property. The final site plan approval of the Pemberton zoning board included a condition that Buster's comply with the one-year performance schedule. In June 1985, Buster's received a "no call up" letter from the Pinelands Commission, indicating that the Commission did not have any issues with performance of its conditions at that time.
Within a few months, however, Buster's was not complying with the one-year performance schedule and with some of the other conditions of the variance and site plan approvals. In 1986, representatives of the Commission and the township inspected the property and found certain conditions unchanged since the approvals. The township's zoning officer issued a cease and desist letter, and the Commission wrote to Perrine in 1987 stating that he had not complied with the performance schedule. Despite these notifications, Buster's continued to operate as before, and no legal action was taken against it.
In June 1992, Pemberton adopted an ordinance barring junkyards altogether in the township. The ordinance stated that the Township Committee had considered the Property Maintenance Code and determined there were no licensed junkyards or lawful pre-existing nonconforming junkyards in the township. Buster's continued to operate.
In 1998, Perrine died and his son took over managing the property and its business operations.
In 2000, Pemberton enacted another ordinance that regulated the storage of inoperative vehicles. The ordinance referenced sections of prior ordinances from the 1980s that regulated auto repair storage yards and their licensing requirements, but it made no reference to the 1992 ordinance that repealed all other junkyard ordinances and banned junkyards altogether in the township. Thus, the 2000 ordinance was inconsistent with the 1992 ordinance in that it sought to regulate junkyard operations rather than ban them outright. Buster's continued its operations, and the township took no legal action.
For reasons that are not clear to us, the 1992 ordinance went unnoticed for many years and was only "discovered" after the filing of this lawsuit.
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Defendant Uthman had conducted business with the junkyard since 1991 and owned a junkyard in another municipality. In 2010, he purchased the Buster's property and business for $100,000. Before the sale, Uthman spoke with the township zoning officer. At the trial, he claimed the zoning officer orally advised him that Buster's was a pre-existing nonconforming use and that no municipal violations against it were outstanding. The zoning officer denied making such representations and claimed the issue was still under review when Uthman closed on the sale and took control of the business.
After Uthman purchased Buster's, he notified township officials that he would apply for a variance to expand the use of the property to include auto repairs, an activity that had in fact been conducted on the property before he purchased it. As a result, township officials investigated the legality of Buster's operations. On July 20, 2010, the zoning officer sent Uthman a letter stating that he must apply to the board of adjustment for a certificate of nonconformity and a use variance to continue using Buster's as a junkyard. Uthman did not apply for a certificate or a variance, and he also did not apply for a license to operate a junkyard. Certain charges were then brought against Uthman in the municipal court for having open fires on the property. Uthman pleaded guilty to the charges, but those proceedings appear to be unrelated to the zoning issues that are the subject of this appeal.
On March 11, 2011, Pemberton filed a three-count complaint in the Chancery Division alleging that Buster's use of its land as a junkyard was unlawful and any pre-existing nonconforming use had been extinguished after Perrine's death. In May 2012, township officials inspected the property and discovered that some of the conditions imposed by the variance and site plan approvals of the mid-1980s had yet to be fulfilled.
After a period of discovery, a four-day trial was conducted in the Chancery Division before Judge Karen Suter. During the trial, Judge Suter dismissed count three of the township's complaint, which alleged that the use of the property as a junkyard had been abandoned after Perrine's death because his son converted the business to an auto repair facility and no longer operated a junkyard. The judge found that the junkyard business never ceased. The other two counts, which alleged violations of the zoning ordinances, were dismissed after completion of the trial through the judge's written decision of March 4, 2013.
The judge found that the junkyard operation was a pre-existing nonconforming use and that it had not been abandoned or otherwise extinguished. While Buster's had not complied with all the conditions imposed with the granting of zoning approvals in 1984 and 1985, Uthman had made a significant effort in that regard, and an order to restrain future junkyard operations was not warranted. Moreover, the judge found that the 1992 ordinance banning all junkyards was improperly based on a finding of the Township Committee that no lawful nonconforming junkyard uses existed in the township. Therefore, that ordinance could not be the legal basis for granting the injunctive relief Pemberton sought. In dismissing Pemberton's claims, the judge stated that the new owner should be given a fair opportunity to bring the property into compliance with the 1984-85 conditions.
On appeal, Pemberton argues that the trial court erred because Buster's forfeited its right to operate as a junkyard when it failed to satisfy the conditions of the variances and site plan approvals granted in the 1980s and also failed to comply with the licensing and regulatory ordinances the township adopted in 1982 and 2000. Additionally, Pemberton contends that the 1992 ordinance applies to Buster's and bars its operation because it was not a lawful nonconforming use at the time the ordinance was adopted.
On an appeal from a bench trial, we afford a highly deferential standard of review to the factual findings of the trial court. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The findings will not be disturbed unless they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)). On the other hand, our review of the trial court's legal determinations is plenary. Ibid.; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
If the trial court's judgment was "based on the application of legal principles" to established facts, we review the trial court's decision de novo. Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 560 (App. Div. 2010), certif. denied, 205 N.J. 318 (2011).
Furthermore, with respect to the equitable remedies Pemberton sought, the decision to grant or deny permanent injunctive relief is typically left to the discretion of the trial court. Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 154, 87 S. Ct. 1507, 1518, 18 L. Ed. 2d 681, 694-95 (1967)). Therefore, we apply the abuse of discretion standard of review to Judge Suter's denial of a permanent injunction. See Davidson Bros., Inc. v. D. Katz & Sons, Inc., 121 N.J. 196, 232-33 (1990); Sheppard v. Twp. of Frankford, 261 N.J. Super. 5, 9-10 (App. Div. 1992).
Having considered the record and the arguments on appeal, we now affirm the Chancery Division's judgment essentially for the reasons stated in Judge Suter's written decision. We add the following as a summary of the applicable law.
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a use of property is lawful if (1) it is a permitted use under the zoning ordinances, (2) it is a pre-existing nonconforming use, or (3) the use has been specifically permitted by the zoning board's granting of a variance. Puleio v. N. Brunswick Bd. of Adjustment, 375 N.J. Super. 613, 620-21 (App. Div.), certif. denied, 184 N.J. 212 (2005).
The MLUL protects nonconforming uses that predated a municipality's zoning ordinance. See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 271-72 (2009); Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 267-68 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010); see also United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152-53 (1952) (under other land use statutes as well, a municipality could not prohibit a pre-existing nonconforming use). N.J.S.A. 40:55D-68 states:
Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.
However, if the landowner wishes to expand or modify a nonconforming use, a variance is required. Fred McDowell, Inc. v. Bd. of Adjustment of Wall Twp., 334 N.J. Super. 201, 214 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001); see also Grundlehner v. Dangler, 29 N.J. 256, 262-64 (1959) (same before MLUL).
In granting a variance, a zoning board may impose reasonable conditions to protect the public interest. See Washington Commons, supra, 416 N.J. Super. at 560-61; Berninger v. Bd. of Adjustment of Midland Park, 254 N.J. Super. 401, 405 (App. Div. 1991), aff'd o.b., 127 N.J. 226 (1992); Kali Bari Temple v. Bd. of Adjustment of Readington, 271 N.J. Super. 241, 251 (App. Div. 1994).
Here, the 1980s variances imposed a number of conditions, some of which Buster's never fulfilled. Pemberton argues this failure to comply, including with the one-year performance schedule imposed by the Pinelands Commission, nullified the variances and thus made Buster's use of the land unlawful. This contention does not state the law accurately. "[W]hen a variance is granted the use permitted thereby becomes a conforming use and is in the nature of a vested right." Dimitrov v. Carlson, 138 N.J. Super. 52, 56 (App. Div. 1975), certif. denied, 70 N.J. 275 (1976). A violation of a condition of the variance does not nullify or rescind the variance. Rather, the municipality has the right to enforce the condition in the same way as it may enforce any zoning violation, by means of legal action in court. See Washington Commons, supra, 416 N.J. Super. at 560.
Furthermore, once a variance is granted, it runs with the land. Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 432 (2000) ("[A] variance granted becomes attached to the land and is not a mere personal right, and a purchaser takes the land free from those zoning restrictions to which the variance pertains." (quoting Eugene McQuillin, The Law of Municipal Corporations, § 25.163 (3d ed. 1991))). Defendant Uthman has the same rights with respect to use of the land that the prior owners had.
Similar to the vested right to a variance, the conditions imposed on a variance also run with the land. Aldrich v. Schwartz, 258 N.J. Super. 300, 308-09 (App. Div. 1992). They are binding on a subsequent purchaser when that purchaser is in a position to know of the restrictions. See Island Venture Assocs. v. N.J. Dep't of Envtl. Prot., 179 N.J. 485, 497-98 (2004); Cox & Koenig, New Jersey Zoning and Land Use Administration, § 28-4.8(b) (2014).
Nevertheless, when the original or a succeeding landowner violates the conditions of a variance, the variance is not automatically forfeited. See Walle v. Bd. of Adj. of S. Brunswick, 124 N.J. Super. 244, 246-47 (App. Div. 1973). Instead, a "condition is enforced via a complaint for injunctive relief, specific performance or other appropriate action brought by the municipality." Washington Commons, supra, 416 N.J. Super. at 561. If the failure to comply persists despite legal action to enforce compliance, then the remedies may include a declaration that the variance has been forfeited and the use is unlawful. See Allendale Nursing Home, Inc. v. Borough of Allendale, 141 N.J. Super. 155, 161-62 (Law Div. 1976), aff'd, 149 N.J. Super. 286 (App. Div. 1977).
Here, the 2011 lawsuit was the first legal action that Pemberton took in twenty-six years to enforce the conditions of the 1984-85 land use approvals. The township allowed Perrine to operate the business without following through with enforcement of the conditions the zoning board had imposed. When Uthman purchased the property, he took some steps to bring the property into compliance but apparently not enough. Judge Suter did not err in concluding that the land use approvals were not nullified by the failure to comply with the conditions, and that the request for injunctive relief was premature in the absence of sufficient time and opportunity for Uthman to satisfy the conditions.
Contrary to Pemberton's argument on appeal, the judge did not prevent the township from enforcing its zoning laws. She specifically stated in her decision that "[n]othing herein precludes the Zoning Board from setting an appropriate period of time for the defendant's compliance with the prior conditions." The denial of declaratory and injunctive relief was not intended to preclude the township from enforcing the conditions of the approvals Buster's had been granted. Rather, it was a discretionary decision that rescinding the approvals was not the appropriate remedy in the absence of any enforcement action over many years. The denial of declaratory and injunctive relief was, therefore, not an abuse of the trial court's authority.
Finally, we note that Pemberton's claims pertained to the zoning ordinances. They were not based on Buster's failure to obtain a license to operate as a junkyard, and the court was not asked to grant a remedy for that regulatory violation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION