TOWNSHIP OF JACKSON VS. JR CUSTOM LANDSCAPING, INC. JR CUSTOM LANDSCAPING, INC. VS. TOWNSHIP OF JACKSON ZONING BOARD OF ADJUSTMENT (L-1738-15, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 10, 2018
• Docket: A-2176-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2176-15T2

TOWNSHIP OF JACKSON,

Plaintiff-Respondent,

v.

JR CUSTOM LANSCAPING, INC.,

Defendant-Appellant. __________________________________

JR CUSTOM LANDSCAPING, INC., JAMES PICON, DAWN PICON and JRDL REAL ESTATE, LLC,

Plaintiffs-Appellants,

TOWNSHIP OF JACKSON ZONING BOARD OF ADJUSTMENT and TOWNSHIP OF JACKSON,

Defendants-Respondents. ___________________________________

Argued January 30, 2018 – Decided July 10, 2018

Before Judges Fisher, Fasciale and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1738- 15. John J. Novak argued the cause for appellants (The Law Offices of John J. Novak, C., attorneys; Deborah A. Plaia, on the brief).

Jean L. Cipriani argued the cause for respondent Township of Jackson (Gilmore & Monahan, PA, attorneys; Jean L. Cipriani, of counsel and on the brief; Michael S. Nagurka, on the brief).

Sean D. Gertner argued the cause for respondent Township of Jackson Zoning Board of Adjustment (Gertner & Gertner, LLC, attorneys; Sean D. Gertner, on the brief).

PER CURIAM

In these two consolidated land use matters, the Law Division

remanded to the Jackson Township Zoning Board of Adjustment (Board)

to determine whether the business operated by JR Custom

Landscaping, Inc. (JR) on properties owned by JR, James Picon,

Dawn Picon, and JRDL Real Estate, LLC (collectively JR), violated

two prior Board resolutions granting prior land use approvals and

ordinances. The Board then determined that there were violations,

which the Law Division later agreed with and enjoined certain JR

business activities. Because the Board followed the remand

directive to review the Zoning Board Officer's determination that

there were no violations on the properties, and to issue factual

findings based upon its interpretation of the resolutions, we

conclude the Law Division did not abuse its discretion, and affirm.

2 A-2176-15T2 JR, which is owned by the Picons, is a wholesale nursery and

landscaping business operating out of two properties located in

Jackson Township (the Township): 34 Bennetts Mills Road (Bennetts

Mills), owned by JR; and 141 East Veterans Highway (East Veterans),

owned by the Picons through an entity, JRDL Real Estate, LLC. As

far back as 1999, JR has made several applications to the Board

regarding the scope of its operations. In 2011, the Ocean County

Department of Solid Waste denied its application to accept leaves

and other compost material for recycling, finding the use was not

permitted at either property. Believing JR was recycling on the

properties despite the denial, the Board filed a verified complaint

against JR for injunctive relief to cease the activity.

The action led to the parties' June 10, 2011 consent order,

which provided:

a. JR shall immediately cease the receipt of materials used to process materials such as mulch;

b. JR shall immediately cease recycling/processing of materials;

c. JR shall not maintain or stockpile any mulch as of June 17, 2011;

d. Operations at the Bennetts Mills site shall not commence prior to 8:00 a.m.;

e. The East Veterans site shall only maintain pickup trucks, 2 bobcats, and other large machinery;

3 A-2176-15T2 f. The East Veterans site shall only engage in farm[-]related activities;

g. The East Veterans site shall not permit recreational vehicle use other than what is permitted by the Township of Jackson Municipal Code;

h. JR is to immediately remove all finished topsoil above a specific height as of June 17, 2011;

i. Either party can apply for a modification of this [o]rder if there is a lack of compliance or change in circumstances;

j. The Jackson Township Police Department may enforce the terms of the [o]rder, including noise complaints;

k. The order is to remain in effect until further order of the court or resolution of the Zoning Board of the Township of Jackson.

This was followed by JR's application to the Board seeking,

among other requests, an interpretation of the approvals granted

in 2009, to allow it to recycle organic waste, trees, leaves and

tree stumps into mulch. Although the Board found that JR had

failed to complete compliance requirements for an approved

farmer's market, it determined that JR could continue to operate

its landscaping business but was required to obtain Board approval

to conduct recycling activities as a condition precedent to any

State regulatory requirements.

4 A-2176-15T2 Later, in 2014, the Township again believed – based on noise

complaints from residential neighbors – that JR had resumed

recycling activities on both properties by producing or

manufacturing mulch and related organic materials, and sought

injunctive relief against JR. Finding the record unclear, the Law

Division remanded to the Board to "determine [its] intent and

address the specific uses it permitted upon the property in light

of the variances and previous interpretations." The Board was

also required to "define the parameters of what encompassed a

[l]andscaping [b]usiness at the property given the fact that it

could not rely upon the Municipal Code for a definition." The

trial court retained jurisdiction.

On remand, after nine days of testimony from Township

officials and professional staff, representatives of JR and the

public, the Board ultimately adopted two separate resolutions,

summarized as follows:

Resolution 2015-22 34 Bennetts Mills Road

The landscaping business permitted to operate may sell farmland related products—i.e.: vegetative products including flowers, plants, trees and shrubs grown elsewhere;

The Board found that JR had expanded the existing non-conforming use by offering for sale, products the Board never intended to be offered at the site and at a scale never envisioned by the Board. Overall, JR expanded

5 A-2176-15T2 the scale and scope of the operation at the site beyond that which was intended;

Bulk storage shall be limited to specific locations delineated upon the 2009 Change of Use Plan; storage of material may not exceed the height permitted by the current Township ordinance – 10 feet;

JR is not permitted to produce or manufacture any materials on site for sale in accord with the February 20, 2015 Board professional memorandum;

Previous approvals do not permit JR to engage in recycling, producing or manufacturing of vegetative or organic product including but not limited to the compost, mulch, topsoil in accord to the Board professional memorandum;

JR expanded the business to permit the rental of equipment from the property, which was way beyond the scope of the business granted by variance;

JR may neither store nor sell loose rock salt from the property;

Without a variance by the Board, JR cannot operate snow plowing operations from the site or store equipment for such on the premises;

Until lot 63 complies with Resolutions 2009-17 and 2009-22 for expansion of business operations, JR shall cease using lot 63 and the access driveway for commercial purposes;

JR is not permitted to store trash, debris or solid waste on his property, as no such areas are designated on the Change of Use Plan from 2009;

6 A-2176-15T2 JR is not permitted to receive or store trash, debris or solid waste from any outside source including but not limited to leaves, brush, stumps, trees, trimmings, manure, grass clippings, millings used to process, produce or manufacture materials such as mulch, topsoil or compost;

The provision of fuel storage on the site is prohibited as it is not addressed by the 2009 Change of Use plan;

JR is not permitted to sell or refill propane tanks from the property;

JR is not permitted to stockpile topsoil, organic material, mulch, compost, or stone in piled greater than 10 feet as depicted in the 2009 change of Use Plan;

A buffer along the east property line consisting of white pine trees 6-8 feet high must be planted to comply with Resolution 1999-10;

No sale of equipment of motor vehicles on the property;

Submission of a storm water management plan must be submitted;

Equipment requiring the use of back up beepers may not be used Saturday after 2 p.m. or on Sunday.

Resolution 2015-23 141 East Veterans Highway

Sifting, screening, manufacture and production of material, utilizing material that was not generated or to be used on the site had occurred. JR is storing topsoil, mulch and other organic material, that originated offsite, in piles of 75 feet wide

7 A-2176-15T2 by 100-150 feet long and 15 feet in height without submitting a plan or providing testimony that the material was to be used in furtherance of farm activities on site.

JR is storing tree stumps, roots, branches and other organic material that originated offsite as part of a constructed berm as well as solid waste, without the submittal of a plan or providing evidence that the storage of material was to be used in furtherance of farm activities;

JR has not cultivated corn or other crops. JR has permitted an unrelated business to dump grass clipping on the site without approval. There is no breeding activity on the site; however JR has intermittently boarded horses and other animals on site;

JR violated the consent order filed June 10, 2011 by maintaining large trucks on the property and engaging in non-farm related activities including sifting, production and manufacture of organic materials and topsoil for use offsite.

Two days later, the Board's Zoning Officer served a letter

on JR stating, "all conditions noted in Resolution 2015-22 shall

be in effect immediately and acted upon accordingly." In response,

JR filed a verified complaint in lieu of prerogative writs and

order to show cause seeking a determination that the Board's

findings in the adopted resolutions were arbitrary, capricious and

unreasonable, and that any action to enforce the resolutions should

be enjoined. The Township in turn filed an order to show cause

seeking preliminary and permanent injunction and to restrain JR

8 A-2176-15T2 from conducting all activities in violation of the resolutions

pending a full adjudication of the matter.

The lawsuits were consolidated, with the status quo on the

use of the properties maintained pending the Law Division's

decision. Ultimately, Judge Mark A. Troncone granted injunctive

relief to the Township ordering JR to "cease any activities on the

sites that are not in conformance with the provisions of the

Resolutions." In deferring to the Board's factual finding, the

judge stated in his written decision that "there is ample evidence

in the record established below as to the numerous violations of

the 2011 [c]onsent [o]rder and of the violations of prior variance

approvals concerning both JR sites as outlined in Resolutions

2015-22 and 2015-23." The judge did carve out two exceptions,

finding that if storm water management facilities were installed,

the Board must approve the plan; and that there could be no

limitation on the use of vehicles with "back up beepers" during

JR's hours of operation.

JR appeals, arguing:

I. THE FILING OF THE VERIFIED COMPLAINT BY JACKSON TOWNSHIP DIVESTED THE ZONING BOARD OF JURISDICTION.

II. THE CHANCERY DIVISION JUDGE ERRED BY ALLOWING THE TOWNSHIP OF JACKSON ZONING BOARD OF ADJUSTMENTS [FACT FINDING] TO BE UTILIZED IN DECIDING A CHANCERY DIVISION ACTION SEEKING INJUNCTIVE RELIEF.

9 A-2176-15T2 A. Snow Plowing – Resolution 2015-22

1. JR Custom Landscaping was denied due process when the court permitted the board to prohibit snow plowing where material facts existed concerning the definition of landscaping.

2. Snow plowing is a vested right.

3. The board does not have the authority to control snow plowing operations which do not occur on JR custom landscaping's property.

B. 141 East Veterans Highway – Resolution 2015-23.

1. Lack of Jurisdiction.

2. 2011 verified complaint and 2011 order.

III. RESOLUTIONS 2015-22 AND 2015-23 ARE ARBITRARY, CAPRICIOUS AND UNREASONABLE.

A. Standard of Review.

B. Variances are vested rights which run with the land.

1. Resolution 2015-22 is not supported by the record.

2. Resolution 2015-23 is not supported by the record.

IV. THE BOARD EXCEEDED THE COURT'S ORDER OF AUGUST 22, 2014 AND THE COURT FAILED TO MAKE FINDINGS OF FACT.

A. The court is required to make findings of fact.

10 A-2176-15T2 B. The court exceeded its authority when it rescinded previously granted rights

1. Storing landscaping material for retail or wholesale purposes.

2. Resolution compliance.

We begin with a review of the well-established legal

principles that guide our analysis. Under the Municipal Land Use

Law (MLUL), N.J.S.A. 40:55D-1 to -163, "municipalities are

authorized to impose conditions on the use of property through

zoning." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). A board

of adjustment has the authority, however, to grant a variance and

permit a nonconforming use of zoned property pursuant to N.J.S.A.

40:55D-70(d)(2).

On appellate review of a trial court's determination of the

validity of an action taken by a land use board, we are bound by

the same standard as the trial court. N.Y. SMSA, L.P. v. Bd. of

Adjustment of Tp. of Weehawken, 370 N.J. Super. 319, 331 (App.

Div. 2004) (citation omitted). Municipal zoning ordinances enjoy

a presumption of validity. Rumson Estates, Inc. v. Mayor & Council

of Fair Haven, 177 N.J. 338, 350 (2003) (citation omitted). This

presumption may be overcome by proof that the ordinance is

arbitrary, unreasonable or capricious, or plainly contrary to

fundamental "principles of zoning or the [zoning] statute."

Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90

11 A-2176-15T2 (2001) (alteration in original) (quoting Bow & Arrow Manor, Inc.

v. W. Orange, 63 N.J. 335, 343 (1973). In addition, we "defer to

a municipal board's factual findings as long as they have an

adequate basis in the record." Advance at Branchburg II, LLC v.

Branchburg Tp. Bd. of Adjustment, 433 N.J. Super. 247, 252 (App.

Div. 2013). The challenging party has the burden to show that the

zoning board's decision was "arbitrary, capricious, or

unreasonable." Price, 214 N.J. at 284 (quoting Kramer v. Bd. of

Adjustment, 45 N.J. 268, 296 (1965)).

Mindful of these principles, we address JR's arguments in the

order presented. JR first argues the Board exceeded its authority

on remand by adopting Resolutions 2015-22 and 2015-23, which

demonstrates that the Board reconsidered and rescinded previously

granted variances, and imposed new conditions on its operations.

As an example, JR cites the exceptions the judge noted for

Resolution 2015-22 provisions by ordering that only if a storm

water management plan is installed on the Bennetts Mills site

should Board approval be sought, and that there can be no

restriction of the hours of operation of vehicles with back up

beepers. We disagree.

Given the injunctive relief sought by the Township, the court

remanded the matter to the Board to interpret the previously

granted resolutions and consent order to determine if JR violated

12 A-2176-15T2 any provisions thereof. Consistent with a zoning board's "peculiar

knowledge of local conditions, [it] must be allowed wide latitude

in their delegated discretion," Jock v. Zoning Bd. of Adjustment,

184 N.J. 562, 597 (2005), the Board thoroughly reviewed testimony

and detailed its findings of fact in two resolutions. JR cites

no case law to support its position, and thus fails to persuade

us, as it was unable to do with the trial court – outside of the

two noted exceptions – that the Board exceeded its authority on

remand.

JR next contends that considering its plowing activity occurs

off-site, it had a vested right to use the Bennetts Mills site for

storing its snow plowing equipment. Thus, it was denied due

process where Resolution 2015-22 declared that snow plowing does

not fall within the definition of landscaping. We are not

persuaded.

The purpose behind the court's remand was to enable the Board

to clarify what activities engaged in by JR were consistent with

the variances that allowed JR to conduct its landscaping business

on the respective sites. Through the extensive hearing process,

the Board did exactly that. We see no reason to disturb the Judge

Troncone's finding that the evidence presented failed to establish

a variance that authorized JR to use the Bennetts Mills site as a

base for a snow plowing operation.

13 A-2176-15T2 Turning its focus to the East Veterans site, JR claims it was

denied due process because the consent order, which specifically

stated that it would remain in effect until further order of the

court or resolution of the Board, expired as of the passage of

Resolution 2011-45.1 We disagree for the same reasons we reject

JR's argument regarding the prohibition of storing snow plowing

equipment at Bennetts Mills; there was no denial of due process

because the Board acted in conformance with the judge's remand

order.

JR next argues that both resolutions are arbitrary,

capricious and unreasonable because "the Township failed to

present substantial, credible evidence of the alleged violations

on the [p]roperties and the Zoning Board's determinations were not

supported by the evidence and are ultra vires." As to Resolution

2015-22, JR contends it inappropriately restricted its landscaping

business and farmer's market on the property; improperly concluded

that the screening of topsoil was impermissible based upon

Resolution 2011-45; wrongly prohibited a second business from

1 Resolution 2011-45 provided that "the applicant's failure to complete resolution compliance for the farmer's market does not preclude the applicant from continuing to operate its landscaping business." It also allowed that in order to conduct recycling activities on the Bennetts Mills property, it had to obtain the Board's approval as a condition precedent to any required New Jersey Department of Environmental Protection approvals.

14 A-2176-15T2 operation on and from the property; incorrectly prohibited JR from

leasing equipment, storing fuel onsite; and improperly required

JR to create a landscape buffer. As for Resolution 2015-23, JR

contends the record does not support its prohibition of sifting

and screening materials, storage of topsoil, mulch, rotting

debris, berm, large trucks and sifters, and the dumping of grass

clippings. From our review of the record and the resulting

resolutions, the Board considered the testimony presented and

credibly applied it to clarify the activities that are consistent

with the approvals given to JR to operate a landscaping business;

in turn, determining that did not include recycling activities

leading to the production or manufacture of mulch and related

organic materials. Accordingly, we cannot conclude the Board

acted arbitrary, capricious and unreasonable, and we find

insufficient merit in these arguments to warrant extensive

discussion in a written opinion. R. 2:11-3(e)(1)(E). We only add

the following comments.

We reject JR's equitable estoppel argument that its on-site

screening of topsoil for the last fifteen years is consistent with

the landscaping business because the Board never prohibited it.

The doctrine of equitable estoppel prevents a party, who failed

to exercise a duty to object, from stopping another party's conduct

who in good faith relied upon that silence or inaction. See

15 A-2176-15T2 Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp.

of Middletown, 162 N.J. 361, 367 (2000). Because we see no clear

distinction between soil-screening and the processing of "organic

related material," which was specifically prohibited by the Board

in 2011, the Township should not be equitably estopped from

enjoining JR's soil-screening activity. Consequently, equitable

estoppel does not apply to allow JR to continue the screening of

topsoil.

Finally, for the reasons stated above, we reject JR's

contention that the Board failed to make findings of fact and

exceeded the court's remand directive.

Affirmed.

16 A-2176-15T2