TOWN OF BELLEVILLE v. PARRILLO'S, INC.
83 N.J. 309 (1980)
416 A.2d 388
TOWN OF BELLEVILLE, PLAINTIFF-APPELLANT, v. PARRILLO'S, INC., DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Decided June 19, 1980.
Frank J. Zinna, Town Attorney, argued the cause for appellant.
No appearance was made on behalf of respondent.
The opinion of the Court was delivered by CLIFFORD, J.
We granted certification, 82 N.J. 291 (1980), to review the Appellate Division's reversal of defendant's conviction for violating the zoning ordinance of the Town of Belleville. Town of Belleville v. Parrillo's, Inc., 168 N.J.Super. 1 (1979). Specifically, defendant was found guilty of extending a nonconforming
The record demonstrates that sometime prior to 1955 Parrillo's operated as a restaurant and catering service on Harrison Street, Belleville. On January 1, 1955 the Town enacted a new zoning ordinance of which all provisions pertinent here are still in effect. The system created under that ordinance provided for zoning under which specific permitted uses for each zone were itemized. Uses not set forth for a particular zone were deemed prohibited. Parrillo's was situated in a "B" residence zone, which did not allow restaurants. However, because it had been in existence prior to the effective date of the zoning ordinance, defendant's establishment qualified as a preexisting nonconforming use and, under the terms of the ordinance, was allowed to remain in operation.
In 1978 defendant's owners made certain renovations in the premises. Upon their completion Parrillo's opened as a discotheque. We readily acknowledge that included among those for whom the term "discotheque" has not, at least until this case, found its way into their common parlance are some members of
Shortly after they had opened under the new format, Parrillo's owners applied for a discotheque license as required by the Town's ordinance regulating dancehalls. Although the application was denied, defendant continued business as usual. Thereupon the municipal construction code official filed the charges culminating in the conviction under review. The municipal court imposed a fine of $250.00.
On a trial de novo after defendant's appeal to the Superior Court, Law Division, the defendant was again found guilty. That court correctly framed the issue as whether "a change from a business primarily conducted as a restaurant with incidental dancing and serving of liquor [can] survive the proscription of the prohibiting ordinance when the character of the operation shifts to a form primarily conducted as a dance hall with the serving of liquor and incidental eating." That court determined that the evidence adduced could "lead to no other conclusion" than that there had been a prohibited extension of a nonconforming use, and likewise entered a judgment of conviction.
The Appellate Division reversed. The error in that result is rooted in the court's approach to the case, which was to review separately each component of the municipality's proofs
That was precisely the frame of reference of Judge Joseph Walsh in the trial de novo in Superior Court, Law Division. Contrary to the suggestion of the Appellate Division, id. at 3, Judge Walsh made extensive and specific findings of fact. They are amply supported by the record and are as follows:
On the basis of these findings Judge Walsh concluded that there had been a prohibited change in the use of the premises. He found to be dispositive the straightforward proposition that "a `disco' is a place wherein you dance and a restaurant a place wherein you eat. It is as simple as that" — an unvarnished exercise in reductionism, perhaps, but one fully justified in this
Historically, a nonconforming use has been looked upon as "a use of land, buildings or premises that lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of such ordinance even though it does not comply with the use restrictions applicable to the area in which it is situated." 6 R. Powell, The Law of Real Property ¶ 871 (Perm.ed. 1979). Under the Municipal Land Use Act, N.J.S.A. 40:55D-1 et seq., such property is deemed to have acquired a vested right to continue in such form, irrespective of the restrictive zoning provisions:
See United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152-53 (1952).
This statutory guarantee against compulsory termination, however, is not without limit. Because nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice. Hay v. Board of Adjustment, 37 N.J.Super. 461, 464 (App.Div. 1955); see Grundlehner v. Dangler, 29 N.J. 256, 274 (1959) (Burling, J., concurring). In that regard the courts have permitted municipalities to impose limitations upon nonconforming uses. Such restrictions typically relate to the change of use, Lynch v. Borough of Hillsdale, 136 N.J.L. 129 (Sup.Ct. 1947), aff'd., 137 N.J.L. 280 (E. & A. 1948); the enlargement or extension of the repair or replacement of nonconforming structures, Spiegle v. Borough of Beach Haven, 116 N.J.Super. 148 (App.Div. 1971); and limits on the duration of nonconforming uses through abandonment or discontinuance, Borough of Saddle River v. Bobinski, 108 N.J.Super. 6 (Ch.Div. 1969).
In the instant case it is acknowledged by all parties that the former restaurant had constituted a proper preexisting nonconforming use. The issue then becomes whether the conversion from a restaurant to a discotheque represented a substantial change, and was thus improper. Fundamental to that inquiry is an appraisal of the basic character of the use, before and after the change. See 6 P.I. Ronan, Zoning & Land Use Controls, § 41.03 (Matthew Bender 1978).
Courts that have engaged in that appraisal have proceeded with a caution approaching suspicion. See, e.g., Berdan v. City of Paterson, 137 N.J.L. 286 (Sup.Ct. 1948) (change from "light industrial" plant to "heavy industrial" shop disapproved); Berry v. Recorder's Ct., 124 N.J.L. 385 (Sup.Ct.), aff'd., 125 N.J.L. 273 (E. & A. 1940) (conversion of farm with incidental use of horses to stable and riding academy unlawful); Hantman v. Randolph Twp., 58 N.J.Super. 127 (App.Div. 1959), certif. den., 31 N.J. 550 (1960) (change of use from summer bungalows to year-round
Hantman v. Randolph Twp., supra, well illustrates the proper analysis for examining changes in nonconforming uses. In Hantman, the plaintiffs owned a commercial bungalow colony which was primarily dedicated to seasonal use. When the area in which the colony was situated was zoned for residential use, the plaintiff's property was afforded preexisting nonconforming use status by the Township. In 1957 the plaintiffs attempted to convert the bungalows into dwellings suitable for year-round occupancy. That effort was challenged by the Township on the ground that the change would constitute an unlawful extension of the nonconforming use. Agreeing with the Township, the Law Division entered an injunction against the proposed modifications. 58 N.J. Super. at 132-33.
On appeal, the Appellate Division affirmed. Reviewing the facts the court established that the plaintiffs' bungalows were in fact nonconforming uses. It then proceeded to address the question of whether permitting fulltime occupancy would effect a substantial change in the premises. Answering in the affirmative, the court declared, "an increase in the time period during
We have already expressed our agreement with the municipal court and with Judge Walsh, presiding at the trial de novo, that defendant's conversion of the premises from a restaurant to a discotheque resulted in a substantial, and therefore impermissible, change. The entire character of the business has been altered. What was once a restaurant is now a dancehall. Measured by the zoning ordinance the general welfare of the neighborhood has been demonstrably affected adversely by the conversion of defendant's business. Our strong public policy restricting nonconforming uses requires reversal of the judgment below.
We observe that a quasi-criminal proceeding is a poor vehicle for a determination of the underlying issue in cases such as this. See Town of Kearny v. Modern Transportation Co., 116 N.J.Super. 526, 530 (App.Div. 1971). Only a penalty may be imposed, and the more demanding burden of proving a zoning ordinance violation beyond a reasonable doubt may inhibit the attainment
Finally, we point out that the Court views with disfavor the conduct of the attorney of record for defendant. He has disregarded all written communications from the Clerk of this Court as to counsel's intentions on this appeal. He did not file any responsive papers or brief on the petition for certification; he did not furnish a copy of his Appellate Division brief in lieu of an answering brief to the petitioner's brief; he did not respond to the Clerk's notification with respect to argument before the Supreme Court; and he has not otherwise explained his silence. There may be good and sufficient reasons for the stance he has taken, but in the absence of any explanation whatsoever counsel's ostensible incivility to an arm of this Court — and hence to this Court directly — is prima facie the sort of discourtesy contemplated by DR7-106(C)(6). Public announcement of counsel's dereliction herein should serve as notice to the bar that such disrespectful conduct will not be countenanced in the future.
Reversed. The cause is remanded to the Superior Court, Law Division, for entry there of a judgment of conviction.
For reversal — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.
For affirmance — None.
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