Town of Belleville v. Parrillo's, Inc.

Decision Date19 June 1980
Citation416 A.2d 388,83 N.J. 309
PartiesTOWN OF BELLEVILLE, Plaintiff-Appellant, v. PARRILLO'S, INC., Defendant-Respondent.
CourtNew Jersey Supreme Court

Frank J. Zinna, Town Atty., Nutley, for plaintiff-appellant.

No appearance was made on behalf of defendant-respondent.

The opinion of the Court was delivered by

CLIFFORD, J.

We granted certification, 82 N.J. 291, 412 A.2d 798 (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, 401 A.2d 688 (1979). Specifically, defendant was found guilty of extending a nonconforming use 1 when it changed its operation from a restaurant to a discotheque without having first obtained approval of the local board of adjustment. The Appellate Division concluded that "within the meaning and intent of our applicable statute, N.J.S.A. 40:55D-68, defendant did not either extend or enlarge its use of the premises." Id. at 7, 401 A.2d at 691. Our examination of the record satisfies us that a prohibited change in use was established beyond a reasonable doubt, that being the appropriate standard of proof in these quasi -criminal proceedings. City of Trenton v. Calvary Apostolic Temple, Inc., 166 N.J.Super. 145, 399 A.2d 311 (App.Div.1979). We therefore reverse and reinstate the judgment of conviction.

I

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 this Court; and on the assumption that there may be others whose experience has denied them an intimate familiarity with the term and the milieu to which it applies, we pause to extend the benefit of definition. Webster's Third New International Dictionary 63a (1976) informs us that a discotheque is a "small intimate nightclub for dancing to recorded music; broadly : a nightclub often featuring psychedelic and mixed-media attractions (as slides, movies, and special lighting effects)". 2 "Disco" appears to be an accepted abbreviation. Defendant's operation is closer to the broad definition above than it is to a small or intimate cabaret.

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 supporting the contention that defendant's operation was not permitted as a nonconforming use. 168 N.J.Super. at 4-6, 401 A.2d 688. From that perspective it reasoned that since each aspect of the "new" business had been conducted previously, there was no impermissible change from the nature of the "old" business. Id. at 6-7, 401 A.2d 688. The analysis was thus quantitative rather than, as it should have been, qualitative. Put differently, the focus in cases such as this must be on the quality, character and intensity of the use, viewed in their totality and with regard to their overall effect on the neighborhood and the zoning plan.

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, 401 A.2d 688 Judge Walsh made extensive and specific findings of fact. They are amply supported by the record and are as follows:

The business was formerly advertised as a restaurant; it is now advertised as a "disco". It was formerly operated every day and now it is open but one day and three evenings. The primary use of the dance hall was incidental to dining; now it is the primary use. The music was formerly provided by live bands and now it is recorded and operated by a so-called "disc-jockey". An admission charge of $3.00 on the Wednesday opening and $5.00 on the Friday and Saturday openings is now mandatory as opposed to any prior entry charge. There is no charge for Sunday. Formerly there was but one bar; now there are several.

During the course of the testimony it was admitted that the business is operated as a "disco". Normal lighting in the premises was altered to psychedelic lighting, colored and/or revolving, together with mirrored lighting. The premises were crowded and there were long lines waiting to enter. There are now fewer tables than the prior use required and on one occasion there were no tables. The music was extremely loud and the premises can accommodate 431 persons legally. There have been numerous complaints from residents adjacent to the area. During the course of the testimony "disco" dancing was described by the owners as dancing by "kids" who "don't hold each other close". The bulk of the prior business was food catering; now there is none. The foods primarily served at the present time are "hamburgers" and "cheeseburgers", although there are other selections available to people who might come in earlier than the "disco" starting time.

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 case. He concluded that the defendant had "abandoned all the pretenses of the continued existence of a restaurant as it was before." We agree with that conclusion.

II

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, P 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:

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. (N.J.S.A. 40:55D-68.)

See United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152-53, 93 A.2d 362 (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, 117 A.2d 650 (App.Div.1955); see Grundlehner v. Dangler, 29 N.J. 256, 274, 148 A.2d 806 (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, 54 A.2d 723 (Sup.Ct.1947), aff'd., 137 N.J.L. 280, 59 A.2d 622 (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, 281 A.2d 377 (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, 259 A.2d 727 (Ch.Div.1969).

The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity. Under that restrictive view our courts have held that an existing nonconforming use will be permitted to continue only if it is a continuance of substantially the same kind of use as that to which the premises were devoted at the time of the passage of the zoning ordinance....

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