Andover Tp. v. Lake

• Decision Date: 15 November 1965
• Docket Number: No. A--82,A--82
• Parties: The TOWNSHIP OF ANDOVER, Plaintiff-Respondent, v. Isaac J. LAKE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 313

89 N.J.Super. 313

214 A.2d 870

The TOWNSHIP OF ANDOVER, Plaintiff-Respondent, v. Isaac J. LAKE, Defendant-Appellant.

No. A--82.

Superior Court of New Jersey Appellate Division.

Argued Sept. 13, 1965.

Supplementary Briefs Received Oct. 4, 1965.

Decided Nov. 15, 1965.

Barry N. Chase, Newton, for appellant (Gersten & Chase, Newton, attorneys).

Sanford Lloyd Hollander, Newton, for respondent (Trapasso, Dolan & Hollander, Newton, attorneys).

Before Judges GOLDMANN, FOLEY and COLLESTER.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendant appeals from a judgment of the County Court which, on a trial De novo, affirmed his conviction in the municipal court of violating certain provisions of the township zoning ordinance.

Specifically, the complaint filed in the municipal court charged that on October 21, 1963 defendant 'did violate and there commit the following offense in violation of the Township Ordinance, Art. VI, Par. 10d, Zoning Ordinance, by maintenance of junk yard prohibited by the ordinance.'

The zoning ordinance of the township was adopted on June 15, 1962. Admittedly, defendant was operating a junk yard on the date charged in the complaint. However, his defense was that such operation commenced in 1949 and has continued without interruption ever since, and thus it was a nonconforming use which could not be interdicted by the zoning ordinance.

Upon the trial De novo the township rested its case entirely upon the testimony of H. Grant Leonard, its mayor, and Walter Guenzel, its building inspector who was charged with the enforcement of the zoning ordinance. Leonard testified that he had no knowledge of the state of the land prior to June 1963. Guenzel said that he had never seen junk on the Lake property prior to June or July 1963. This proof coupled with the fact that junk was on the property on the date charged in the complaint was sufficient to make out a Prima facie case of violation requiring defendant to go forward with proof of a nonconforming use.

Defendant testified that he had continuously maintained the property as a junk yard from February 1949, when he acquired it by deed, until the date of the complaint. Partially corroborative testimony was given by defendant's nephew, Paul Lake, who stated that from 1949 until his departure from the area in 1960 he observed the property was used as a junk yard. Leonard Renkel testified that there was junk on the property prior to 1949 and that to his knowledge the land was used by defendant as a junk yard up to some time in 1962. Testifying to similar effect were Richard Little, who observed the property intermittently from 1955 to 1961, and Howard Beatty who dealt with the defendant in the sale of junk in the years 1955 to 1957 and had viewed the land occasionally thereafter. The township offered no evidence in rebuttal of these proofs and they therefore stood uncontradicted at the close of the entire case.

The simple, yet crucial, issue before the court was whether defendant was lawfully operating a junk yard on the property when the zoning ordinance was adopted. As we have noted, defendant testified without contradiction that his junk yard operation was in existence at that time. The judge made no finding to the contrary on the grounds of credibility, or otherwise. He merely said: 'The defendant claims that he used the property as a junk yard since he purchased it. However, whether that is so or not the court is not too sure.' In our judgment that determination, on the state of the proofs as herein set out, required an acquittal.

In finding the defendant guilty the court concluded that the defendant's use was not 'a lawful use at the time that the zoning ordinance was passed,' because the operation of the junk yard was in violation of two other ordinances.

Both are regulatory ordinances adopted under the police powers of the municipality. Neither is a zoning ordinance. On May 27, 1952 the township adopted an ordinance to license and regulate junk dealers. Concededly defendant did not obtain a license as required by that ordinance, and may have been subject to the penalty therein provided. However, this court has ruled that the failure to obtain a license for the operation of a business, as provided in an ordinance regulating the conduct of such business does not adversely affect the status of the operator as a nonconforming user. In Scavone v. Mayor, etc. Totowa, 49 N.J.Super. 423, 140 A.2d 238 (App.Div.1958), a used car dealer licensed under an ordinance regulating the used car business failed to apply for a renewal upon the expriation date. He continued to sell used cars at the premises until his new application for a license was refused by the authorities on the basis of a new prohibitory zoning amendment, adopted the same day. The court noted that the zoning statute was not enacted by the Legislature as a sanction for enforcement of municipal ordinances regulating activities in the exercise of the police and revenue raising power, and held:

'While it is recognized that the spirit of the zoning statute and the interpretative cases is restrictive of nonconforming uses, nevertheless the owner of property is entitled to stand on the statute without being made to suffer erosion of his rights as a nonconforming user under the excuse of serving the public policy represented by regulatory enactments of quite different significance for the enforcement of which appropriate sanctions are available.' Id., at pp. 427--428, 140 A.2d at p. 241.

This is in accordance with the general rule that:

'(W)here the invalidity of the use prior to the effective date of the zoning restriction lies in failure to secure a license required by an ordinance adopted pursuant to the general police power, other than a zoning ordinance or an ordinance regulating use of land as distinguished from regulation of an activity upon land in general, it is generally held that such invalidity does not preclude acquisition of a non-conforming use protected as again the operation of the subsequent zoning restriction.' 2 Rathkopf, The Law of Zoning and Planning (3d ed. 1957), p. 58--17.

On June 27, 1955 the township passed an ordinance totally prohibiting the keeping of junk yards in the township, and repealing the licensing ordinance of 1952. This was not a zoning restriction, but rather a prohibition of undesired activity. Indeed, as far as appears, the township had no zoning ordinance at that time. Since a non-conforming use must be a lawful use, 2 Rathkopf, The Law of Zoning and Planning (3d ed. 1957), p. 58--15, we must determine whether defendant's use was rendered unlawful by this regulatory ordinance so that it could not achieve the status of a nonconforming use under the 1962 zoning ordinance.

In Scavone, supra, in Obiter dictum this court approved the proposition first espoused by Judge Bigelow in his dissent in State v. Casper, 5 N.J.Super. 150, 155, 68 A.2d 545 (App.Div.1950), that a prior nonconforming use is not unlawful unless it is in violation of a prior zoning ordinance. 49 N.J.Super., at p. 427, 140 A.2d 238. We now think that this proposition is too limited as applied to this case. If the Scavone dictum were followed defendant's uncontradicted use, undeniably in violation of the 1955 regulatory ordinance, would gain the status of a 'nonconforming use' for zoning purposes (since it was excluded from the 1962 zoning plan), Merely because it was not in violation of a prior zoning ordinance. Such a result would contradict the general rule that a use must be lawful to become a 'nonconforming use,' and would also run counter to the zoning policy which restricts nonconforming uses. Therefore, we do not follow the dictum in Scavone.

The correctness of the trial court's conclusion (that the defendant's junk yard was an unlawful use) depends upon the validity of the 1955 ordinance tested in light of the proper exercise of general police power of the municipality. See N.J.S.A. 40:48--2

Initially, it cannot be questioned that a state in the exercise of its police power, or a municipality exercising the police power delegated to it by a state, can license or regulate the business of dealing in junk. Annotation, 'Regulation of junk dealers,' 30 A.L.R. 1427 (1924), supplemented 45 A.L.R.2d 1391 (1956). Accordingly, N.J.S.A. 40:52--1(c) enables a municipal body to license and regulate junk yards. See Howell Twp. v. Sagorodny, 46 N.J.Super. 182, 134 A.2d 452 (App.Div.1957), affirmed o.b., 25 N.J. 502, 138 A.2d 13 (1958); Messina v. Mayor and Council etc. of Lodi, 18 N.J.Super. 503, 87 A.2d 729 (App.Div.1952); Hammond v. Board of Aldermen etc....