NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3980-22
VINCENT A. VILLANO and JOYCE VILLANO,1
Plaintiffs,
and
SANTIAGO BORJA and LAUREN JACOBSON BORJA,
Plaintiffs-Appellants,
v.
SAL MADISON, LLC, SAL LAROSA, JR., KENNETH J. GAMBELLA, and GIGI'S OCEANPORT PIZZA,
Defendants-Respondents,
THE BOROUGH OF OCEANPORT
1 Vincent A. Villano and Joyce Villano declined to appear at trial. As a result, the judge dismissed their claims against defendants on November 2, 2022. and JOHN JOHNSON,2
Defendants. _________________________________
Argued November 14, 2024 – Decided December 2, 2024
Before Judges Mayer and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 1741-20.
Gary E. Fox argued the cause for appellants (Fox & Melofchik, LLC, attorneys; Gary E. Fox, on the briefs).
Joel N. Kreizman argued the cause for respondents (Scarinci Hollenbeck, LLC, attorneys; Joel N. Kreizman, on the brief).
PER CURIAM
Plaintiffs Santiago Borja and Lauren Jacobson Borja 3 appeal from an
August 3, 2023 order of "no judgment" after a three-day bench trial before Judge
Mara Zazzali-Hogan. We affirm.
2 The claims against defendants Borough of Oceanport and John Johnson were voluntarily dismissed on September 22, 2021. 3 Because the Borjas are married, we refer to them by their first names. No disrespect is intended. A-3980-22 2 We recite the facts from the trial testimony. Defendant Sal LaRosa, Jr.
(LaRosa), through defendant Sal Madison, LLC (Sal Madison), owns property
(Property) located in Oceanport's R-5 residential zone. The Property consists of
a two-family home and a pizza shop. Plaintiffs live in a home adjacent to the
Property. Lauren has lived next door to the Property since 2008. Santiago
moved into Lauren's home in 2013.
Because the historical use of the Property was significant in Judge
Zazzali-Hogan's decision, we recite its history in some detail.
In 1925, John and Mamie Canevari acquired the Property from Carl and
Anna Lacker. In 1932, the Property had a grocery store. In 1933, Oceanport
adopted a zoning code and ordinances. In 1944, the Canevaris sold the Property
to Fred W. and Audrey Zito (Zito). Zito then ran the grocery store. In the 1980s,
Zito rented the Property to Vincent Renzo to "sell pizzas and subs."
In 1984, Renzo requested permission from the Oceanport Zoning Board
of Adjustment (Board) to "sell pizza for consumption off-premises and to install
a pizza oven." On June 6, 1984, the Board held a public hearing on Renzo's
application for a zoning interpretation (1984 Hearing). According to the minutes
of the 1984 Hearing, Renzo and Zito testified. In summarizing their testimony,
the minutes stated the Property "was always a food store i[.]e[.]: [a] grocery
A-3980-22 3 store . . . then in 1971[,] [Zito] rented to his grandson who sold subs, candy,
soda and papers. His grandson expanded by purchasing a pizza oven from a
merchant in Asbury Park and sold [p]izza from the store." According to the
meeting minutes, Renzo told the Board there was no plan to expand the pizza
shop as it existed and there was no consumption of food on the premises.
In the 1984 Hearing minutes, the Board's attorney offered an interpretation
of Renzo's application. The attorney explained the "store [on the Property] has
sold food for the past [fifty-two] years[,] . . . there has been no change in the
operation of this business[,] and the sale and making of pizzas is not necessarily
a change in type of business [because] it is still food." The Board's attorney
opined Renzo did not require a variance because there was "[n]o change in the
use."
The Board approved Renzo's application. In its June 27, 1984
memorializing resolution (1984 Resolution), the Board explained, "[t]he
[Property] ha[s] almost exclusively been used as a food store since 1932, and
accordingly, [such a] use of the [Property] constitutes [a] pre-existing
nonconforming use." The 1984 Resolution concluded "the installation of a pizza
oven and the sale of pizzas to the general public not for consumption on the
premises d[id] not constitute a change or expansion of said pre-existing
A-3980-22 4 nonconforming use." The 1984 Resolution stated Renzo "d[id] not require a
variance from the Board; and [he] may continue to operate the premises [as a
pizza shop]."
Renzo operated a pizza shop on the Property until 2010. In 2010, Renzo
sold the pizza shop to another family, who operated the establishment as a pizza
shop from 2010 to 2014. After 2014, the Property went unused until Sal
Madison bought it in 2015. From 2017 to 2019, the Property operated as Nicky's
Pizzeria.
In 2020, Sal Madison leased the Property to defendant Kenneth J.
Gambella, who opened defendant Gigi's Oceanport Pizza (Gigi's) the same year.
In May 2020, Gambella obtained a Certificate of Continued Occupancy from
Oceanport allowing the "[c]ontinuation of [a] pre-existing nonconforming use."
Oceanport's Zoning Officer determined Gigi's "complie[d] [with the Borough's
Zoning Code] as per [the 1984 R]esolution."
According to the trial testimony, Gigi's has "a pizza oven, a cut table, a
pizza making station[,] . . . a little back area where there's a bathroom and
a . . . little sink for washing a few dishes." Gigi's has no dining tables and the
interior space accommodates about two customers. Unlike the prior pizza
establishments on the Property, Gigi's menu includes appetizers, soups, salads,
A-3980-22 5 sandwiches, pasta, and desserts. In addition, Gigi's is open about forty hours
more per week than the pizza establishment run by Renzo.
After lodging several complaints with the Oceanport Police Department
and the municipality, plaintiffs filed a complaint against Sal Madison, LaRosa,
Gambella, Gigi's, and others. Plaintiffs alleged Gigi's had no legal right to
operate in a residential zone. Further, plaintiffs asserted Gigi's business
constituted actionable nuisance.
Judge Zazzali-Hogan conducted the three-day bench trial beginning
October 31, 2022. The judge heard testimony from the following witnesses:
Lauren, Santiago, Gambella, LaRosa, Oceanport's Police Chief, Renzo's son-in-
law, and plaintiffs' neighbor.
Judge Zazzali-Hogan placed her decision on the record on August 3, 2023.
On the issue of whether Gigi's was a valid pre-existing nonconforming use, the
judge explained the parties agreed a pizza shop was not a permitted use in
Oceanport's R-5 residential zone. Accordingly, the judge determined defendants
bore the burden of demonstrating the Property's "current use is pre-existing and
nonconforming, such that the quality and the character of the current use is one
that predated the first zoning ordinance in Oceanport . . . in . . . 1933." Because
the judge concluded defendants satisfied their burden of proof, she explained
A-3980-22 6 the burden shifted to plaintiffs to demonstrate the 1984 Resolution, allowing a
pre-existing nonconforming use of the Property as a pizza shop, was invalid.
The judge relied on the minutes of the 1984 Hearing and 1984 Resolution
in concluding the Property was used as a food establishment since 1932, before
the municipality adopted its zoning code and ordinances. The judge noted the
1984 Resolution declared the Property a valid pre-existing nonconforming use.
The judge also rejected plaintiffs' argument that the 1984 Resolution was
void because the Board failed to publish proper notice. The judge found
plaintiffs failed to proffer any witnesses in support of this argument. Judge
Zazzali-Hogan further determined the newspaper search for public notice
conducted by plaintiffs' counsel, limited to the archives of one specific
newspaper, was insufficient because there were other local newspapers in
circulation in 1984 that counsel did not search. Additionally, because they did
not live next door to the Property until 2008, plaintiffs would not have received
notice of Renzo's 1984 application to the Board. Accordingly, Judge Zazzali-
Hogan found plaintiffs failed to prove the 1984 Resolution was void or
otherwise invalid.
Further, the judge rejected plaintiffs' contention that Gigi's use of the
Property dramatically differed from the prior businesses. Based on the evidence
A-3980-22 7 adduced during the trial, Judge Zazzali-Hogan concluded, "the [Property's]
current use is substantially similar to how Renzo used the premises. And
although the evidence is sparse, the [1984 R]esolution and [June 6, 1984],
meeting minutes dictate[d] a finding that [the Property] always operated as a
food store."
The judge also rejected plaintiffs' assertion that the pre-existing
nonconforming use of the Property was abandoned by prior owners. According
to plaintiffs, the grocery store on the Property "ceased operation in 1969, when
it became a television and radio repair and sales store." However, plaintiffs'
evidence in support of their contention came from a publication that plaintiffs
were unable to authenticate. Although the judge considered the publication, she
was "hesitant to rely on it, because of . . . potential inaccuracies." The judge
explained she gave greater weight to the 1984 Resolution and minutes of the
1984 Hearing maintained by Oceanport that declared the Property to be a lawful
pre-existing nonconforming use.
Additionally, the judge rejected plaintiffs' nuisance claim. While the
judge found the "increased activity" associated with Gigi's "bothered or
annoyed" plaintiffs, their allegations regarding increased noise, garbage, odors,
and traffic were "unsupported or simply contradicted by other testimony." Judge
A-3980-22 8 Zazzali-Hogan found plaintiffs "only articulated annoyance" and failed to
demonstrate Gigi's "materially interfere[d] . . . with any ordinary comfort or any
day-to-day activities" to prove their nuisance claim.
In her August 3, 2023 order for judgment, Judge Zazzali-Hogan wrote:
"Plaintiffs . . . failed to meet their evidentiary burden to demonstrate that the
[1984] Resolution [was] void or that Gigi's ha[d] no legal right to continue its
current operations and failed to demonstrate a cause of action for nuisance." As
a result, the judge found "no judgment" for plaintiffs.
On appeal, plaintiffs argue the judge should have found Gigi's had no legal
right to operate in a residential zone. They also contend the 1984 Resolution is
void for improper notice, the use was abandoned in 1969, and Gigi's illegally
expanded the nonconforming use. Plaintiffs also claim the judge erred in
dismissing their nuisance claim because they proffered evidence that Gigi's
operation resulted in excessive noises, unpleasant smells, and increased traffic.
"Final determinations made by the trial court sitting in a non-jury case are
subject to a limited and well-established scope of review." D'Agostino v.
Maldonado, 216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank,
S.L.A., 205 N.J. 150, 169 (2011)). We defer "to the trial court that heard the
witnesses, sifted the competing evidence, and made reasoned conclusions."
A-3980-22 9 Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017) (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 483-84 (1974)).
"Deference is especially appropriate 'when the evidence is largely testimonial
and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412
(1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
"That is so because an appellate court's review of a cold record is no substitute
for the trial court's opportunity to hear and see the witnesses who testified on
the stand." Balducci v. Cige, 240 N.J. 574, 595 (2020) (citing State v. Elders,
192 N.J. 224, 244 (2007)).
Accordingly, "[f]actual findings premised upon evidence admitted in a
bench trial 'are binding on appeal when supported by adequate, substantial,
credible evidence.'" Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co. v. Pa.
Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare, 154 N.J. at 412).
We will "not disturb the factual findings and legal conclusions of the trial judge"
unless "so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (quoting Rova Farms
Resort, Inc., 65 N.J. at 484). However, "[a] trial court's interpretation of the law
and the legal consequences that flow from established facts are not entitled to
A-3980-22 10 any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, allows
an "interested party" to seek injunctive relief against a party violating a zoning
ordinance. N.J.S.A. 40:55D-18. An interested party is "any person . . . whose
right to use, acquire, or enjoy property is or may be affected by" the violation of
a zoning ordinance. N.J.S.A. 40:55D-4. The definition of an interested party
"includes a neighbor." Harz v. Borough of Spring Lake, 234 N.J. 317, 322
(2018). Here, plaintiffs claim Gigi's is not a valid pre-existing nonconforming
use and violates Oceanport's zoning ordinance prohibiting businesses in a
residential zone.
A "nonconforming use is 'a use or activity which was lawful prior to the
adoption, revision[,] or amendment of a zoning ordinance, but which fails to
conform to the requirements of the zoning district in which it is located by
reasons of such adoption, revision[,] or amendment.'" Nuckel v. Borough of
Little Ferry Planning Bd., 208 N.J. 95, 106 (2011) (quoting N.J.S.A. 40:55D-5).
"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
A-3980-22 11 thereof." N.J.S.A. 40:55D-68. "The burden of proving the existence of a
nonconforming use is upon the party asserting such use." Bonaventure Int'l, Inc.
v. Borough of Spring Lake, 350 N.J. Super. 420, 432 (App. Div. 2002) (citing
Ferraro v. Zoning Bd., 321 N.J. Super. 288, 291 (App. Div. 1999)).
The MLUL allows any person who has an interest in "land upon which a
nonconforming use or structure exists [to] apply in writing for the issuance of a
certificate certifying that the use or structure existed before the adoption of the
ordinance which rendered the use or structure nonconforming." N.J.S.A.
40:55D-68. Applications for certificates of nonconformity "may be made . . . at
any time to the board of adjustment." Ibid. The applicant bears the burden of
proof. Ibid.
Here, there was ample evidence demonstrating the operation of a food
establishment on the Property since 1932, which predated Oceanport's adoption
of a zoning code in 1933. The trial proofs established Renzo applied to the
Board in 1984 for a certificate declaring the pizza shop on the Property to be a
valid, pre-existing nonconforming use. After hearing testimony from Renzo and
others, the Board concluded the Property operated as a food establishment
"almost exclusively" since at least 1932. The Board memorialized its decision
in the 1984 Resolution, stating "the [Property] constitutes [a] pre-existing
A-3980-22 12 nonconforming use." Based on the trial testimony and the documents admitted
at trial, including the minutes of the 1984 Hearing and 1984 Resolution, Judge
Zazzali-Hogan concluded the Property "always operated as a food store" and
thus was a valid, pre-existing nonconforming use.
The judge also properly rejected plaintiffs' notice argument. The MLUL
requires public notice for a hearing on an application. N.J.S.A 40:55D-12(a).
Notice must be given "by publication in the official newspaper of the
municipality, if there be one, or in a newspaper of general circulation in the
municipality." Ibid. Property owners "within 200 feet . . . of the property which
is the subject of such hearing" are also entitled to notice by certified mail.
N.J.S.A 40:55D-12(b). The notice requirements apply to applicants seeking a
certificate for a nonconforming use. Twp. of Stafford v. Stafford Twp. Zoning
Bd. of Adjustment, 154 N.J. 62, 73 (1998).
In Stafford, our New Jersey Supreme Court held applications for
nonconforming use certificates under N.J.S.A. 40:55D-68 are "applications for
development," and must comply with the MLUL's notice requirements. Ibid.
Because the Court determined imposing a notice requirement did not result in
prejudice to the petitioner, the Court applied its holding retroactively. Ibid.
A-3980-22 13 The Court in Stafford applied the facts specific to that case and concluded
the petitioner would not suffer prejudice by imposing the notice requirement
under the circumstances as presented. In Stafford, unlike the present matter, the
nonconforming use certification was issued just three years before the Court
issued its opinion.
However, in this case, the Board adopted the 1984 Resolution, confirming
the pre-existing nonconforming use of the Property fourteen years before the
Court's decision in Stafford, and nearly forty years before plaintiffs filed their
lawsuit. On these specific facts, we decline to require defendants demonstrate
publication of notice of a resolution adopted almost forty years earlier.
Additionally, we reject plaintiffs' argument that Judge Zazzali-Hogan
"improperly shifted the burden to plaintiff[s] to prove that the 1984 [R]esolution
is void." It is well-settled that "[a] board of adjustment's action is presumed to
be valid, and the party attacking it has the burden of proving otherwise." Nextel
of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super.
22, 38 (App. Div. 2003). Plaintiffs failed to cite any case law to the contrary.
Here, plaintiffs challenged the validity of the 1984 Resolution, arguing
that notice was defective. Because a zoning board's actions, including the
A-3980-22 14 issuance of memorializing resolutions, are presumptively valid, plaintiffs had
the burden of proving the 1984 Resolution was invalid and failed to do so.
Additionally, because plaintiffs did not live in Oceanport in 1984, the
judge correctly concluded plaintiffs had no personal knowledge regarding notice
of the 1984 Hearing and 1984 Resolution. Nor was the certification from
plaintiffs' counsel sufficient to prove lack of notice. As the judge aptly noted,
there were several newspapers in circulation in Monmouth County in the 1980s,
and plaintiffs' counsel only searched the archives maintained by the Asbury Park
Press. Additionally, the judge found plaintiffs failed to subpoena any witnesses
to offer testimony on the notice issue.
We also agree Judge Zazzali-Hogan rightly rejected plaintiffs' argument
there was temporal or physical abandonment of the Property as a food
establishment. "The traditional test of abandonment requires the concurrence of
two factors: (1) an intention to abandon, and (2) some overt act or failure to act
which carries a sufficient implication that the owner neither claims nor retains
any interest in the subject matter of the abandonment." S & S Auto Sales, Inc.
v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super. 603, 613-
14 (App. Div. 2004).
A-3980-22 15 "[T]he property owner [asserting the pre-existing use] has the ultimate
burden with respect to the issue of abandonment as well as the existence of a
nonconforming use." Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment
of Trenton, 410 N.J. Super. 255, 269 (App. Div. 2009). But a party challenging
the pre-existing nonconforming use "must initially come forward with sufficient
evidence of temporal or physical abandonment." Ibid.
Here, plaintiffs failed to proffer any competent admissible evidence of
temporal or physical abandonment of the use of the Property for the sale of food.
The judge concluded plaintiffs' proffering of a passage from a retrospective
pamphlet about the Borough of Oceanport, purporting to establish the use of the
Property in 1969 as a television and radio repair shop, was rife with
inconsistencies based on the trial testimony. Further, the judge concluded it was
"not clear who wrote the book, . . . not clear when or for what purpose the book
was written, and . . . no one was able to authenticate it." Thus, Judge Zazzali-
Hogan relied on the 1984 Hearing and 1984 Resolution, as credible and
competent official government documents, declaring the Property to be a valid
Nor do we discern any error in Judge Zazzali-Hogan's rejecting plaintiffs'
claim that Gigi's expanded the pre-existing nonconforming use. "[A]n existing
A-3980-22 16 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." Town of Belleville v.
Parrillo's, Inc., 83 N.J. 309, 316 (1980). "[N]onconforming uses may not be
enlarged . . . except where the change is so negligible or insubstantial that it
does not warrant judicial or administrative interference." Ibid. "If the present
use is substantially similar to the use at the time it became nonconforming, it
will be permitted to continue." Bonaventure Int'l, Inc., 350 N.J. Super. at 433.
We defer to Judge Zazzali-Hogan's factual determination that Gigi's and
the prior business establishments on the Property sold food. Based on the trial
testimony, the judge found plaintiffs failed to establish any change in the type
of businesses operated at the Property. Gigi's may use more kitchen appliances
and be open longer hours than the prior pizza shops, but, as the judge concluded,
plaintiffs failed to demonstrate how such differences "affect[ed] them or the
neighborhood."
Similarly, the judge concluded plaintiffs failed to objectively establish
any increased traffic generated by Gigi's, electing instead to rely on their own
anecdotal and speculative testimony. Oceanport's Police Chief testified he
discerned no additional traffic attributable to Gigi's. Rather, the Police Chief
A-3980-22 17 explained plaintiffs' perceived increase in traffic may be attributable to the
nearby racetrack and local school.
Regarding the dismissal of plaintiffs' nuisance claim, we are satisfied
Judge Zazzali-Hogan's entry of "no judgment" is based on findings of fact that
are adequately supported by the credible evidence presented at trial. R. 2:11-
3(e)(1)(A).
To the extent we have not addressed any of plaintiffs' remaining
arguments, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3980-22 18