Opinion
A-3427-19
04-20-2022
BRAD MOINI, Plaintiff-Appellant, v. FREEHOLD TOWNSHIP PLANNING BOARD, Defendant-Respondent.
Brad Moini, appellant, argued the cause pro se (Snyder & Snyder, LLP, attorneys; Robert D. Gaudioso and David J. Kenny, on the briefs). Francis C. Accisano argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 28, 2022
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0446-19.
Brad Moini, appellant, argued the cause pro se (Snyder & Snyder, LLP, attorneys; Robert D. Gaudioso and David J. Kenny, on the briefs).
Francis C. Accisano argued the cause for respondent.
Before Judges Sabatino and Natali.
PER CURIAM.
Plaintiff Brad J. Moini, the owner of an 8.28-acre parcel in Freehold Township, appeals the trial court's March 19, 2020 dismissal of his action in lieu of prerogative writs against defendant, the Freehold Township Planning Board. In his lawsuit, appellant contests the Planning Board's December 13, 2018 resolution denying him the right to use his property for the boarding and breeding of horses and for horseback riding lessons. We affirm.
I.
We derive these pertinent facts from the record. Appellant purchased the property in 2001 from Craig and Kathleen Curley. The Curleys lived in the house located on the property.
At the time the Curleys bought the property in 1994, it was situated within the R-40 residential zone, which then permitted the "operation [of] a horse farm for boarding and breeding of horses" but prohibited "the giving of horseback riding lessons."
Shortly after buying the premises, the Curleys applied for and were granted by the Township's Zoning Board of Adjustment in July 1994 a use variance enabling them to offer horseback riding lessons on the site, subject to numerous conditions. In granting that use variance, the Zoning Board concluded it would neither" substantially impair the intent and purpose of the zone plan and zoning ordinance[, ]" nor "be a gross deviation" from it.
The Zoning Board imposed nine terms and conditions upon the use variance to allow riding lessons. Most significantly, the fourth and fifth conditions required, in turn, that the "subject property and horse farm thereon shall be owned, operated and occupied by the applicants[, ]" and that the "[a]pplicants shall execute and record a Deed restricting the horse farm use so that the residence and business shall be owner occupied and operated." (Emphasis added).
Pursuant to the fifth condition, the Curleys duly recorded a Deed of Restriction in January 1996, noting the restrictive covenant associated with the 1994 variance. The Deed recites that "[t]he Zoning Board of Adjustment's approvals were conditioned on the recording of this Deed restricting the use of the property so that the horse farm shall be an owner occupied and owner operated business. This restriction may not be modified in any manner without the express approval of the Freehold Township [Zoning] Board of Adjustment." (Emphasis added).
In 1995 the Zoning Board granted the Curleys a bulk variance for new paddock areas that would enable them to separate the horses on the site more effectively.
A major rezoning of the area occurred in 1997, prompted by a report on local stormwater and drainage known as the "Lake Topanemus Watershed Study." Specifically, the Township replaced the former R-40 zone covering the property with a new and more restrictive zone, R-120. Among other things, the R-120 ordinance expressly prohibits horse-related uses within the zone without a variance. The ordinance declares that its general purpose is "to permit low-intensity residential development within the Lake Topanemus Watershed area in order to minimize stormwater runoff and subsurface drainage pollution in accordance with the requirements of the Lake Topanemus Watershed Conservation District requirements." Freehold Township, N.J., Code § 190-128 (emphasis added). At oral argument on appeal, respondent's counsel suggested to us that the new restrictions on horse activity within R-120 were designed to address concerns over waste flow from horses that could affect stormwater runoff and subsurface drainage.
Three years after appellant bought the premises from the Curleys in 2001, he applied to the Zoning Board in 2004 for a use variance to permit the on-site "storage of landscaping materials and equipment for his landscaping business." At the hearing on this variance application, appellant testified that he had bought the property with a purpose "to raise nursery stock in conjunction with his landscaping business." He argued that operating what he termed a "riding academy," as his predecessors the Curleys had done, was a more "intense" nonconforming use of the premises than operating a landscaping business. The Zoning Board rejected the application, finding that appellant failed to show why the property was suitable for such landscaping business activity, and further concluded it would have a substantially negative impact on the surrounding property owners.
Thereafter, in 2005 appellant petitioned the Monmouth County Agricultural Development Board (the "Agriculture Board") pursuant to a Right to Farm Act regulation, N.J.A.C. 2:76-2.3. He sought to have the Agriculture Board declare that various pre-existing and proposed uses on the property "constitute a generally accepted agricultural operation or practice[]." Among other things, this application included a nursery, a farm market, landscaping operations, a compost area, "horse and animal raising and rehabilitation facilities," and "riding lessons as per variance[.]"
After an on-site inspection, the Agriculture Board declined appellant's application in 2006. The Agriculture Board cited to findings in the inspection report that were inconsistent with appellant's current and proposed uses. In particular, the report noted that the "farm is beset by severe erosion and drainage problems throughout the Property, resulting from overuse of the land and a lack of vegetation and pasture management[, ]" and that the "turn-out areas are insufficiently vegetated and of insufficient size for three horses[.]" Further, the Agriculture Board noted that appellant had "previously been cited for using the residential building on the Property as an office for his landscaping and snow removal businesses, as well as renting out a portion of the premises to other commercial users." It also noted that appellant remained in non-compliance with a court order to use the building for exclusively residential purposes.
We have not been supplied in the record with that court order or any information about it.
The present dispute stems from appellant's attempt in 2018 to lease the property for equestrian activities. On May 3, 2018, appellant was served with a notice from the Township's Zoning Officer ordering the removal of "For Lease" signs posted on the Property. The signs advertised the Property as a "Fully Approved Equestrian Facility[, ]" which the Zoning Officer found to be inconsistent with their review of the Property's "documented history regarding use variances, deed restrictions, and Township Ordinances related to the horse related uses."
Based on this review, the notice set forth the Zoning Officer's determination that "the Use Variance for horseback riding lessons has lapsed." Specifically, the Zoning Officer found that: (i) "the property is not owner occupied[, ]" a condition required by the 1994 variance; (ii) "the variance was not granted to the current owner and the area was re-zoned to the R-120 regulation in 1997 prohibiting horses[;]" (iii) no application was made to the Township for "any modification of the expressed 1994 variance approval as required and repeated in the 1996 recorded Deed[;]" and (iv) "a certificate of continuation, certifying that the use of the property regarding horses existed prior to the adoption of the R-120 zone was never issued by the Township."
Appellant timely appealed the Zoning Officer's determinations to the Planning Board, namely the adverse findings that:
1. The use variance and site plan approvals to permit horseback riding lessons granted by the Freehold Township Zoning Board of Adjustment in 1994 and 1995 respectively have lapsed.
2. The pre-existing, nonconforming use of keeping horses on the property is not permitted, because a
certificate of continuation was never used or that the use has been abandoned.
The Planning Board held a public hearing on November 1, 2018, at which appellant, his attorney, and a retained planning expert testified on his behalf. Sworn testimony was also presented by four neighbors who spoke in opposition to appellant.
Appellant testified that, upon acquiring the Property, his "intentions . . . were to have horses on the property, as well as a nursery with [his] landscape business[.]" He further claimed that from the beginning of his possession of the property in 2001, "there was a horse and there was a goat" on the premises, and that between 2001 and 2004, "the number of horses changed" from between "five … [to] . . . seven[.]"
Appellant conceded that horses were on the property largely for purposes of "rehabilitation" and "training," and were not used for horseback riding lessons. Further, he testified that the only person living on the property at the time was a horse caretaker, though acknowledged that "one of the conditions of the use variance approval permitting horseback riding lessons was that the lessons had to be given by the owner-occupant . . . of the property[.]"
Appellant insisted in his testimony that horses had been consistently maintained on the property. He could not recall "exactly how many horses were there in 2004," but estimated the number at around three to five, and noted that there are currently seven horses being boarded on the property that have been present "for many years." He stated that he "never completely removed any paddocks" that had been on the property at the time he acquired it, and had in fact "added paddocks into the property and running sheds . . . to accommodate more horses[]" following his earlier application to the Agriculture Board.
Appellant's planning expert opined that horse-related uses of the site had attained "nonconforming status" following the 1997 rezoning, and were in fact still permitted. The expert asserted that the nonconforming horse-related uses had been continuous since 1997, and therefore unaffected by the new zone's prohibitions. In support of his position, the expert noted there was no record of either any reduction of the "original lot[, ]" or any "substantial increase in number of horses boarded or number of employees at the current site[.]" He further noted that the Zoning Officer's 2018 notice contained "no evidence . . . that the use has ever been stopped[, ]" or "any information that at one point the property was used for another use and the use was converted and . . . no horse boarding was on the property." The expert also pointed to aerial photographs of the property. which he contended show "that the rear lot is still improved with the structures and paddocks from as far back as 2015[.]"
The testimony of four of appellant's neighbors contradicted his assertion that the property has been continuously used for horse-related activities since he bought it in 2001. The first testifying neighbor, who has been living in the area for forty-six years, stated "[t]here hasn't been a horse on that property . . . from [his] recollection, for at least two decades[, ]" and that "containment fences" necessary for maintaining horses have likewise not been on the property "for two decades."
The second testifying neighbor, who has been living near the property since December 1996, did remember seeing horses on the property, and seeing horses ridden from the property into the "back woods" when she first moved there. However, she testified she had not seen, "smell[ed]" or heard horses on the property since 1998 or 1999. She concurred with the first neighbor's observation that the fence previously installed around the property "fell apart."
The third lay witness to testify had lived "next door" to the property since 1953. He testified that he "never observed any horses" or "signs indicating riding lessons[.]" He also stated that the "containment fence" has been absent since 2004, and that he had "observed no horses" outside of the barn during the previous six months.
The fourth and final testifying neighbor has lived adjacent to the property since 2004. She testified that while she has seen "landscaping things . . . going on" such as "trucks going in and out" of the property, she has "never seen a horse in that house since 2004[, ]" the year she moved to the area. She further commented that while she only has a clear view of the property's paddocks from her own home, she can view the property's stables from her neighbor's home, and did not see any horse activity from that vantage point during a visit approximately eleven months earlier.
In a resolution memorialized on December 13, 2018, the Planning Board affirmed the Zoning Officer's determination that horse-related activities- including both horseback riding lessons and boarding-are prohibited on the property.
Specifically, the Board found that, contrary to the conditions listed in the 1994 variance, appellant "does not and has not occupied the property[, ]" and "no riding lessons have been given on the property." Further, the Board found "[h]orses have not been kept on the premises for a period approaching two decades[.]" In this regard, the Planning Board noted the Agriculture Board's finding in 2006 that "numerous conditions inconsistent with the keeping of horses including severe erosion and drainage problems . . . and insufficiently vegetated and undersized turn-out area for horses." Those findings were consistent with the testimony of the four neighbors, who each stated they had not observed any horse-related activities on the premises for many years.
The Planning Board concluded from the evidence that "both the raising and boarding of horses and the giving of horseback riding lessons . . . have not been conducted by the owner of the property[, ]" and have thus "been abandoned[, ]" and any prior "approval has lapsed."
Appellant filed the present action in lieu of prerogative writs in February 2019, seeking to set aside the Planning Board's adverse ruling. Fundamentally, appellant contended that the Planning Board's decision was against the weight of the evidence and also arbitrary and capricious.
After briefing and oral argument, the trial court issued a written decision on March 19, 2020 upholding the Planning Board's decision. This appeal ensued.
II.
In his counsel's brief on appeal, appellant contends the trial court used the wrong legal standard of review of the record ("substantial evidence" rather than "preponderance") and erroneously melded the standards for a variance with those for a pre-existing nonconforming use. Appellant insists the horse-related use was not abandoned. He also criticizes the Board's resolution as being too conclusory and lacking in sufficient reasons. We are unpersuaded by these arguments.
Appellant's counsel was substituted by appellant, pro se, after the appellate briefing was concluded. Appellant continues to rely on his former counsel's brief, as amplified by his own contentions at oral argument.
We consider the issues on appeal guided by well-established principles of deference to a land use board's findings of fact. "When reviewing a trial court's decision regarding the validity of a local board's determination, 'we are bound by the same standards as was the trial court.'" Jacoby v. Zoning Bd. of Adjustment of Englewood Cliffs, 442 N.J.Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 562 (App. Div. 2004)). In general, judicial review of a decision of a municipal planning board or board of adjustment is highly deferential. "[T]he law presumes that boards of adjustment and municipal governing bodies will act fairly and with proper motives and for valid reasons," and will be set aside only when it is arbitrary, capricious and unreasonable. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); see also Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (reiterating the judiciary's limited standard of review of zoning board decisions).
A plaintiff has the burden of proving the land use decision is arbitrary, capricious and unreasonable. See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018). A reviewing court is not to "substitute [its] judgment for the proper exercise of the Board's discretion." CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J.Super. 563, 578 (App. Div. 2010).
Even so, a land board's interpretation of the law is reviewed de novo and is not entitled to deference. Dunbar Homes, 233 N.J. at 559. In addition, the record must contain "substantial evidence" to support the land use board's factual findings. Darst v. Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J.Super. 314, 325 (App. Div. 2009) (quoting Kramer, 45 N.J. at 296-97).
Applying these well settled principles here, we affirm the Law Division's decision to uphold the Planning Board's determination that this property within the R-120 zone cannot be used for horse-related activity. The determination is supported by substantial credible evidence in the record and by the applicable law.
With respect to the facts, we defer to the Planning Board's assessment that the property has not been used for horse-related activities in compliance with the 1994 use variance since appellant purchased it from the Curleys in 2001. Appellant admits that he has not lived on the premises, and thus that it has not been "owner-occupied," in violation of a clear and specific condition of the 1994 variance. He also concedes that he has not provided horseback riding lessons on the site in the nearly two decades since he acquired the premises.
We recognize that there was a factual dispute over the timing and the extent to which horses have been kept at the property during appellant's ownership. In particular, we are cognizant of appellant's own testimony, albeit it is rather vague and imprecise, that he has kept as many as seven horses on the property at certain times. We are also mindful that the 2006 resolution of the Agriculture Board incidentally noted that "horse manure composting" and a "fenced turnout area" was observed on site in 2005.
On the other hand, we are likewise cognizant of the testimony of appellant's four neighbors attesting that they had not seen horses on the property for many years. The Planning Board, in its fact-finding role, had the prerogative to adopt the neighbors' testimony as being more believable than that of appellant. In addition, the Planning Board's determination is buttressed by the history of appellant's focused efforts to pursue landscaping, farming, and other non-horse activities on the property as primary endeavors.
Moreover, appellant did not call any fact witness, other than himself and a professional planner who conducted a recent site visit after appellant had been charged by the Zoning Officer, to corroborate his own account and dispel the testimony of his neighbors. Although he did provide some photographs of horses currently stabled on the property, he did not present receipts for horse-related expenditures for previous years or other documents or competent evidence substantiating his continuous use of the property for horses.
The Planning Board's legal conclusions are sound. As we noted, appellant has admittedly failed to comply with owner-occupancy, a specified condition of the 1994 use variance. Successive owners are bound by lawfully imposed conditions attached to variances obtained by their predecessors in title; the variances cannot be unilaterally altered without a further application to the land use board. See Stop & Shop Supermarket Co. v. Springfield Twp. Bd. of Adj., 162 N.J. 418, 439-40 (2000); see also William M. Cox & Stuart R. Koenig, Current N.J. Zoning & Land Use Administration § 28-2.1. Consequently, the variance to allow riding lessons has been extinguished.
In addition, the Planning Board reasonably determined from its fact-finding that appellant has abandoned any right to perpetuate a nonconforming use prohibited in the R-120 zone. Although appellant told the Planning Board he has harbored a long-standing subjective intent to utilize the property for horse-related activities, that expression of intent is undercut by the neighbors' testimony and by the Agriculture Board's determination that, at least as of 2006, the property was unfit for maintaining horses.
Based on the Planning Board's findings of fact, appellant's "overt act[s]" and "failure[s] to act" provide sufficient grounds by a preponderance of the evidence to infer abandonment, in spite of appellant's declarations of a contrary intent. Berkeley Square v. Trenton Zoning Board of Adjustment, 410 N.J.Super. 255, 265 (App. Div. 2009); see also Villari v. Zoning Bd. of Adjustment, 277 N.J.Super. 130, 136-37 (App. Div. 1994) (holding that an applicant had abandoned his professed intent to use his land as a nonconforming pig farm by instead using the land for seven years to grow corn and alfalfa, and failing to maintain a fence or enclosed area in a manner needed to raise hogs or pigs).
We reject appellant's contention the Planning Board's nine-paragraph resolution was insufficient to address the matters before it. The Board's critical determinations-such as its findings that appellant has not occupied the property (para. 5), that he has not provided riding lessons since he bought the property in 2001 (para. 6), that horses have not been kept on the property for nearly two decades (para. 70), and that the Agriculture Board found many conditions on the site inconsistent with the keeping of horses (para. 7)-are clearly and succinctly stated. The resolution does not parrot expert testimony, nor does it merely regurgitate legal criteria without explanation.
Appellant argues the trial court mis-stepped in its decision by allegedly conflating the legal standards for abandonment of a nonconforming use with those governing a failure to maintain the conditions of a predecessor's variance. Appellant further argues the trial court misidentified the applicable burden of proof to establish abandonment as being "substantial evidence" in the record, rather than a "preponderance" of the evidence. Borough of Belmar v. 20116th Avenue, Belmar, 309 N.J.Super. 663, 674 (Law Div. 1997). These criticisms do not require us to set aside the Planning Board's sound decision, which we, like the trial court, review de novo based on the same record.
For the reasons we have already stated, the trial court reached the correct result, if not by stating the exact same analysis. Our task on appeal is to affirm or reverse judgments, not opinions. See, e.g., Hayes v. Turnersville Chrysler Jeep, 453 N.J.Super. 309, 313-14 (App. Div. 2018) (reiterating a reviewing court's authority to affirm trial court decisions "for reasons other than those expressed by the motion judge.") (internal citation omitted). Here, the judgment was manifestly correct, and must be affirmed.
To the extent we have not otherwise commented on them, we have duly considered appellant's other points and sub-points and conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.