State on Complaint of Mallet v. Loux

• Decision Date: 16 October 1962
• Docket Number: No. A--752,A--752
• Citation: 76 N.J.Super. 409,184 A.2d 755
• Parties: The STATE of New Jersey, on complaint of Newton A. MALLET, Building Inspector of Township of Middletown, Plaintiff-Respondent. v. Albert LOUX, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 409

76 N.J.Super. 409

184 A.2d 755

The STATE of New Jersey, on complaint of Newton A. MALLET Building Inspector of Township of Middletown Plaintiff-Respondent. v. Albert LOUX, Defendant-Appellant.

No. A--752.

Superior Court of New Jersey Appellate Division.

Argued Oct. 9, 1962.

Decided Oct. 16, 1962.

Chester Apy, Red Bank, for appellant (Abramoff & Apy, Red Bank, attorneys).

Frederic Baar, Red Bank, for respondent.

Before Judges GOLDMANN, FREUND and FOLEY.

PER CURIAM.

The Middletown Township Building Inspector filed a complaint in the local municipal court charging defendant with using certain described lands located in the R-15 residential zone of the township for a business purpose- --specifically, for the storage of boats in connection with his boat works--in violation of the township zoning ordinance. The defense was that the use was nonconforming. The municipal magistrate found that such storage of boats as 'perhaps' may have taken place prior to the ordinance was that of a trespasser. Since a trespasser could not establish a use as nonconforming, he found defendant guilty and imposed a fine of $100.

Defendant appealed the conviction to the County Court. The case was presented on the transcript of the municipal court hearing and argument. The county judge, after finding that the State had proved the violation beyond a reasonable doubt, found defendant guilty and imposed the same $100 penalty. Defendant appeals.

Defendant owns and operates a boatyard in what is known as the Leonardo section of Middletown Township. The stipulated facts show that defendant's business operation presently involves two tracts. The first is known as the Wagner tract, acquired by one William Wagner in December 1923 and on which he operated a boatyard until he sold it to defendant in March 1956, pursuant to a contract of sale executed October 26, 1953. The tract consists of land north of Burlington Avenue on Sandy Hook Bay, and two lots south of the avenue designated on the map in evidence as lots 53 and 54. As to the Wagner tract, the municipality agrees that a valid prior nonconforming use for a boatyard exists.

The second tract, known as the Banfield tract, had been owned by the Banfield family and used as a boat works during the 1920s and 1930s. After a fire in the 1930s the Banfields discontinued the boat works as well as their storage of boats. The township then acquired title by tax sale, and later sold the property to Martin and Ruth Fawcett on July 28, 1948. The Fawcetts, in turn, sold the property to defendant in November 1956. The Banfield tract consists of some 27 lots, including lots 46 through 52. The latter are the lands described in the complaint, and are located on the south side of Burlington Avenue, between a creek which runs into Sandy Hook Bay and lots 53--54.

On April 1, 1961, the date charged in the complaint, defendant was using lots 46--52 for the storage of boats in connection with his boatyard on the Wagner tract. All of defendant's property is in the R-15 zone, having first been so zoned by an amendment to the local zoning ordinance adopted December 13, 1950. The operation of a boatyard, and the storage of boats, has been prohibited in an R-15 zone since that date.

Defendant's claim to a nonconforming use is based upon events which transpired during the Fawcett ownership. The critical period extends from the time the Fawcetts acquired title on July 28, 1948 and the adoption of the ordinance amendment zoning the area in question as residential on December 13, 1950. The testimony must therefore be considered within the limited time period of slightly over two years and four months.

Our considered review of the record leads us to conclude that a nonconforming use does not exist. The State established that lots 46--52 were not used for boat storage during the 28 months in question. Its witnesses testified from personal observations made over a long period of time and based on numerous year-round visits to the property.

We find defendant's proofs that boats had been stored on the lots during the time period in question far from persuasive. Defendant sought to establish that Wagner, who owned the tract across the street and lots 53--54 adjoining lots 46--52, had used the latter to store boats during the Fawcett ownership. The record discloses...