NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2350-19
TOWNSHIP OF MONROE,
Plaintiff-Respondent/ Cross-Appellant,
v.
ANDRE LOVE and LOVE'S TREE REMOVAL, INC.,
Defendants-Appellants/ Cross-Respondents. ___________________________
Submitted May 26, 2021 – Decided July 26, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 10- 19.
Lawrence B. Sachs, attorney for appellants/cross- respondents.
Shain Schaffer PC, attorneys for respondent/cross- appellant (Gregory B. Pasquale, on the brief).
PER CURIAM Defendants Andre Love and Love's Tree Removal, Inc., appeal from the
January 7, 2020 Law Division judgment finding defendant guilty of violating
Monroe Township's zoning ordinances by processing mulch on Love's property.
Defendants were issued twenty-five summonses for the activities 1 from
February 2, 2017, to December 6, 2018. The Law Division judge reduced the
penalties from an aggregate of $17,891 in fines and court costs to $10,800 in
fines and $891 in court costs, which the municipality appeals. We affirm.
In rendering his decision, the Law Division judge reviewed de novo the
basic facts in the record of the municipal court proceedings. R. 3:23-8. He
agreed with the municipal court judge's credibility rulings, including that Love's
testimony was "less-than-credible . . . ." Love not only contradicted testimony
from other witnesses, he at times disputed the content of photographs which
were admitted into evidence, and occasionally even his own statements while on
the stand. The judge found no reason to not credit the municipal zoning officer
and a neighbor, both of whom he concluded testified in a fashion "that was
inherently believable . . . ."
1 Two additional tickets were issued for defendants' property fencing being in disrepair and defendants were convicted of the violations. Defendants do not appear to dispute the conviction. Additionally, the municipal court found defendants not guilty of one ticket for "[m]ulching not permitted."
2 A-2350-19 Defendant's property is located in the R3A zone, which includes homes
on three-acre lots and allows the operation of landscaping businesses and
nurseries. The zone also includes, as a conditional use, tree removal, such as
the business conducted on Love's property.
The zoning officer testified that he issued summonses beginning in
February 2017, when he witnessed use of grinding machines for mulch
processing. He described it as causing much noise and smoke, and he issued
violations only when he witnessed grinding and mulch processing. Love,
however, had no variance permitting the use during that timeframe.
Additionally, the zoning officer believed Love's storage of his product was
improper, and Love did not submit logs regarding mulch production contrary to
the zoning ordinance. While testifying, Love denied use of the property for that
purpose since 2017, claiming his grinder was not operational. He said he only
turned the machine on to check and repair it, although he later said he used the
machine for a week or two.
In April 2017, approximately a year before the municipal court trial, the
Township sought a temporary restraining order enjoining Love from engaging
in mulch processing. The application for a preliminary injunction was denied
after the Chancery Court judge heard limited testimony from the parties. At that
3 A-2350-19 hearing, Love testified that his family had produced mulch on the property since
the 1940s. The judge found that although it was clear mulch production had
occurred on the property in the 1970s, thereafter a change in the municipal
ordinances would have restricted these activities. Despite the use now being
permitted only conditionally, Love had failed to obtain zoning approvals to
continue the use, and had in fact expanded it. The judge directed Love to
complete his pending variance application before the Township's Zoning Board.
He declined to enjoin the activity, subject to certain enumerated conditions,
involving both local and state regulations. The judge added that all applicable
remedies were still available to the Township.
Love received variances in September 2018, contingent upon site plan
approval. He did not submit the paperwork in support of site plan approval until
mid-January 2019. He therefore continued to be cited for code violations while
his application was pending.
The Law Division judge rejected Love's defense that the pending Zoning
Board application precluded the Township from enforcing the ordinance based
on N.J.S.A. 40:55D-70(a). He considered the statute inapplicable because it
relates to the appeal of a decision by a zoning officer, not to zoning violations.
4 A-2350-19 Love also contended that since the Township was denied a restraint, he
had essentially been granted permission to continue. The Law Division judge
rejected that defense because, although the Chancery judge declined to enjoin
the activities, neither did he give permission for their continuation, and he had
indicated that Love would be proceeding at his own risk if he continued the use
without appropriate zoning approvals. Thus, the Law Division judge also found
that collateral estoppel did not apply because the issues were not identical, and
the Township's application for a preliminary injunction was not a final
judgment.
The Law Division judge held that Love violated the zoning ordinance by
continuing to process mulch "without obtaining the proper approvals." This
included Love's failure to obtain site plan approval and zoning permits, failure
to properly store the mulch on the site, and failure to submit mulch processing
logs.
On appeal, defendants raise the following points:
POINT I
[THE CHANCERY JUDGE'S] PRIOR COURT ORDER PROVIDED PROTECTION TO THE DEFENDANTS UNDER THE [MUNICIPAL LAND USE LAW, N.J.S.A. 40:55D-1 TO -163] WHICH THE TRIAL COURT DISREGARDED.
5 A-2350-19 POINT II
THE CREDIBILITY OF PLAINTIFF'S WITNESSES WAS IMPROPERLY DETERMINED BY THE TRIAL COURT.
POINT III
THE TRIAL COURT ERRED IN EXERCISING ITS DE NOVO REVIEW OF THE RECORD BELOW.
POINT IV
THE TRIAL COURT'S INTERPRETATION OF N.J.S.A. 40:55D-75 WAS IMPROPER.
POINT V
THE DOCTRINE OF COLLATERAL ESTOPPEL IS INAPPLICABLE IN THE INSTANT CASE.
POINT VI
THE AMOUNT OF FINES ASSESSED WAS EXCESSIVE AND CONTRARY TO THE RECORD BELOW.
We find these arguments to lack sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We touch upon some of the
points only briefly.
Contrary to defendants' contentions, the Law Division judge did make his
own findings of fact based on the record from the municipal court proceedings
and the argument of counsel on appeal. See State v. Hannah, 448 N.J. Super.
6 A-2350-19 78, 93 (App. Div. 2016). The Law Division judge credited the municipal
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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-2350-19
TOWNSHIP OF MONROE,
Plaintiff-Respondent/ Cross-Appellant,
v.
ANDRE LOVE and LOVE'S TREE REMOVAL, INC.,
Defendants-Appellants/ Cross-Respondents. ___________________________
Submitted May 26, 2021 – Decided July 26, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 10- 19.
Lawrence B. Sachs, attorney for appellants/cross- respondents.
Shain Schaffer PC, attorneys for respondent/cross- appellant (Gregory B. Pasquale, on the brief).
PER CURIAM Defendants Andre Love and Love's Tree Removal, Inc., appeal from the
January 7, 2020 Law Division judgment finding defendant guilty of violating
Monroe Township's zoning ordinances by processing mulch on Love's property.
Defendants were issued twenty-five summonses for the activities 1 from
February 2, 2017, to December 6, 2018. The Law Division judge reduced the
penalties from an aggregate of $17,891 in fines and court costs to $10,800 in
fines and $891 in court costs, which the municipality appeals. We affirm.
In rendering his decision, the Law Division judge reviewed de novo the
basic facts in the record of the municipal court proceedings. R. 3:23-8. He
agreed with the municipal court judge's credibility rulings, including that Love's
testimony was "less-than-credible . . . ." Love not only contradicted testimony
from other witnesses, he at times disputed the content of photographs which
were admitted into evidence, and occasionally even his own statements while on
the stand. The judge found no reason to not credit the municipal zoning officer
and a neighbor, both of whom he concluded testified in a fashion "that was
inherently believable . . . ."
1 Two additional tickets were issued for defendants' property fencing being in disrepair and defendants were convicted of the violations. Defendants do not appear to dispute the conviction. Additionally, the municipal court found defendants not guilty of one ticket for "[m]ulching not permitted."
2 A-2350-19 Defendant's property is located in the R3A zone, which includes homes
on three-acre lots and allows the operation of landscaping businesses and
nurseries. The zone also includes, as a conditional use, tree removal, such as
the business conducted on Love's property.
The zoning officer testified that he issued summonses beginning in
February 2017, when he witnessed use of grinding machines for mulch
processing. He described it as causing much noise and smoke, and he issued
violations only when he witnessed grinding and mulch processing. Love,
however, had no variance permitting the use during that timeframe.
Additionally, the zoning officer believed Love's storage of his product was
improper, and Love did not submit logs regarding mulch production contrary to
the zoning ordinance. While testifying, Love denied use of the property for that
purpose since 2017, claiming his grinder was not operational. He said he only
turned the machine on to check and repair it, although he later said he used the
machine for a week or two.
In April 2017, approximately a year before the municipal court trial, the
Township sought a temporary restraining order enjoining Love from engaging
in mulch processing. The application for a preliminary injunction was denied
after the Chancery Court judge heard limited testimony from the parties. At that
3 A-2350-19 hearing, Love testified that his family had produced mulch on the property since
the 1940s. The judge found that although it was clear mulch production had
occurred on the property in the 1970s, thereafter a change in the municipal
ordinances would have restricted these activities. Despite the use now being
permitted only conditionally, Love had failed to obtain zoning approvals to
continue the use, and had in fact expanded it. The judge directed Love to
complete his pending variance application before the Township's Zoning Board.
He declined to enjoin the activity, subject to certain enumerated conditions,
involving both local and state regulations. The judge added that all applicable
remedies were still available to the Township.
Love received variances in September 2018, contingent upon site plan
approval. He did not submit the paperwork in support of site plan approval until
mid-January 2019. He therefore continued to be cited for code violations while
his application was pending.
The Law Division judge rejected Love's defense that the pending Zoning
Board application precluded the Township from enforcing the ordinance based
on N.J.S.A. 40:55D-70(a). He considered the statute inapplicable because it
relates to the appeal of a decision by a zoning officer, not to zoning violations.
4 A-2350-19 Love also contended that since the Township was denied a restraint, he
had essentially been granted permission to continue. The Law Division judge
rejected that defense because, although the Chancery judge declined to enjoin
the activities, neither did he give permission for their continuation, and he had
indicated that Love would be proceeding at his own risk if he continued the use
without appropriate zoning approvals. Thus, the Law Division judge also found
that collateral estoppel did not apply because the issues were not identical, and
the Township's application for a preliminary injunction was not a final
judgment.
The Law Division judge held that Love violated the zoning ordinance by
continuing to process mulch "without obtaining the proper approvals." This
included Love's failure to obtain site plan approval and zoning permits, failure
to properly store the mulch on the site, and failure to submit mulch processing
logs.
On appeal, defendants raise the following points:
POINT I
[THE CHANCERY JUDGE'S] PRIOR COURT ORDER PROVIDED PROTECTION TO THE DEFENDANTS UNDER THE [MUNICIPAL LAND USE LAW, N.J.S.A. 40:55D-1 TO -163] WHICH THE TRIAL COURT DISREGARDED.
5 A-2350-19 POINT II
THE CREDIBILITY OF PLAINTIFF'S WITNESSES WAS IMPROPERLY DETERMINED BY THE TRIAL COURT.
POINT III
THE TRIAL COURT ERRED IN EXERCISING ITS DE NOVO REVIEW OF THE RECORD BELOW.
POINT IV
THE TRIAL COURT'S INTERPRETATION OF N.J.S.A. 40:55D-75 WAS IMPROPER.
POINT V
THE DOCTRINE OF COLLATERAL ESTOPPEL IS INAPPLICABLE IN THE INSTANT CASE.
POINT VI
THE AMOUNT OF FINES ASSESSED WAS EXCESSIVE AND CONTRARY TO THE RECORD BELOW.
We find these arguments to lack sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We touch upon some of the
points only briefly.
Contrary to defendants' contentions, the Law Division judge did make his
own findings of fact based on the record from the municipal court proceedings
and the argument of counsel on appeal. See State v. Hannah, 448 N.J. Super.
6 A-2350-19 78, 93 (App. Div. 2016). The Law Division judge credited the municipal
magistrate's opportunity to observe the demeanor of the witnesses. He agreed,
based on his review of the transcript, with the municipal court judge's credibility
findings because they were supported by the record.
As our Supreme Court has frequently reiterated, the two-court rule,
applicable to review of municipal appeals de novo, requires application of a
deferential standard. State v. Stas, 212 N.J. 37, 48-49 (2012). We have no doubt
that here the deference owed to the two courts as to the factual findings is proper.
See ibid. Although review of legal conclusions is always plenary, in this case
they appear unassailable as well.
The October 18, 2017 Chancery Division order denying a preliminary
injunction to the Township did not protect defendants from their choice to
continue to engage in activities without the necessary approvals. The Chancery
judge specifically warned defendants that if they did so, it would be at their own
peril. That decision merely concluded that the Township had failed to establish
irreparable harm and failed to establish the extent of the expansion of
defendants' business activities. The Chancery court's prior decision was not
dispositive of any issue; it was merely a denial of a request for a preliminary
injunction based on an incomplete record. Those conclusions did not shield
7 A-2350-19 defendants from their legal obligation to comply with the zoning law until they
obtained the appropriate zoning approvals.
The two-court rule applies in this case, and we see no reason to stray from
it. See Stas, 212 N.J. at 49 n.2; State v. Oliver, 320 N.J. Super. 405, 421 (App.
Div. 1999). As a matter of law, to which the two-court rule does not apply, we
find no error was committed by the Law Division judge. See State ex rel.
Qarmout v. Cavallo, 340 N.J. Super. 365, 367 (App. Div. 2001).
Defendants' argument about N.J.S.A. 40:55D-75 has no merit; neither do
their points with regard to collateral estoppel. Neither the statute nor the
doctrine applies here.
Defendants' argument that the fines were excessive cuts against the fact
that the violations spanned two years. Love was put on notice with each
summons that the Township viewed the use as worthy of prosecution.
By way of cross-appeal, the municipality claims the reduction in fines was
error. That is a decision subject to abuse of discretion review. State v.
Blackmon, 202 N.J. 283, 297 (2010). We consider the reduction in fines to be
warranted because, as the Law Division judge said, it "reflects a fair balance . . .
[that] takes into account the need for deterrence as well as the ability to pay."
No further discussion is warranted. R. 2:11-3(e)(2).
8 A-2350-19 Affirmed.
9 A-2350-19