                                NOT FOR PUBLICATION WITHOUT THE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-0145-18T2

1419 WEST CAMPLAIN, LLC,

          Plaintiff-Respondent,

v.

JOINT LAND USE BOARD OF
THE BOROUGH OF MANVILLE,

     Defendant-Appellant.
_____________________________

                    Argued October 7, 2019 – Decided November 21, 2019

                    Before Judges Sabatino and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-1270-17.

                    Christopher M. Corsini argued the cause for appellant
                    (Savo, Schalk, Gillespie, O'Grodnick & Fisher, PA,
                    attorneys; Christopher M. Corsini, on the briefs).

                    Maria Teresa Garcia argued the cause for respondent
                    (Law Offices of Peter N. Laub, Jr. & Associates, LLC,
                    attorneys; Peter N. Laub, Jr., and Maria Teresa Garcia,
                    on the brief).

PER CURIAM
      Defendant Joint Land Use Board of the Borough of Manville (Board)

appeals from an August 10, 2018 Law Division order reversing in part, and

remanding in part, the Board's September 5, 2017 Resolution (Resolution)

memorializing its determination that a legal, preexisting nonconforming use of

property now owned by plaintiff 1419 West Camplain, LLC, in the Borough of

Manville (Borough) had been abandoned.1        Having considered the Board's

arguments in light of the record on appeal and the applicable legal principles,

we reverse the August 10, 2018 order and reinstate the Board's September 5,

2017 decision.

                                       I.

      In August 2016, plaintiff was the successful purchaser at a sheriff's sale

of a residence in the Borough located at 1419 West Camplain Road, which it

believed was a two-family home. The home, originally built as a two-family

residence before the adoption of the Borough's current zoning ordinance, is

located in the S-80 zone, which permits two-family homes provided that such

properties meet bulk requirements, including minimum lot size and maximum


1
  The Municipal Land Use Law (MLUL) defines a nonconforming use as "a use
or activity which was lawful prior to 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." N.J.S.A. 40:55D-5.
                                                                        A-0145-18T2
                                       2
amount of allowable impervious surface coverage. It is undisputed that at one

time the two-family home on the property was a legal, preexisting

nonconforming use.

      Plaintiff sought confirmation from the Borough that the residence could

still be utilized as a two-family home. Walter Wilczek, the Borough zoning

officer, denied plaintiff's request and concluded that the property's

nonconforming use was abandoned by the prior owner, Thomas Mezoff, as the

home had not been used as a two-family residence since 2003.

      In an April 27, 2017 memorandum to the Board, Wilczek acknowledged

that in 1996 the property was listed on municipal tax records as a two-family

home, but the property experienced a fire in 2003 that rendered it uninhabitable.

Wilczek detailed that in 2005, the Borough issued permits to remove wall board

to assess the fire damage and to perform restoration work. Although Mezoff

replaced the siding and performed preliminary renovation, he never completed

the project.

      Wilczek also noted that in 2006 the Borough's property "record card"

listed the residence as a single-family home, which designation continued

through 2016. Wilczek advised plaintiff that it would need to apply to the Board




                                                                         A-0145-18T2
                                       3
to use the property as a two-family home, as it failed to meet the requirements

of the S-80 zone.

      Plaintiff appealed Wilczek's determination to the Board. After conducting

a hearing, the Board issued a September 5, 2017 Resolution, which

memorialized its unanimous decision that the preexisting, nonconforming use of

the residence as a two-family home had been abandoned by Mezoff.

      Before the Board, plaintiff's principal, Mariusz Grabowski, testified that

the property's use was not abandoned because it was used as a two-family home

until the 2003 fire. Plaintiff asserted that its predecessor in title, Mezoff, applied

for permits and partially repaired the structure, and only stopped construction

due to financial considerations. Plaintiff also maintained that Mezoff never

intended to abandon using the residence as a two-family home, nor was Mezoff

ever advised by the Borough that the two-family use was considered abandoned.

      Further, plaintiff argued that "in order to [establish] abandonment, you

have to have something besides mere time," and "all the work that [Mezoff] did,

applying for permits [and] the work he did on the property [after the fire],

justifies the fact that it was not abandoned." Grabowski further testified that

when he purchased the property, "there was no description whether the property




                                                                              A-0145-18T2
                                          4
was a single or two-family house," and he "did intense investigation, and nothing

indicated that the house was a single-family [home]."

      Plaintiff introduced, without objection, Mezoff's affidavit, along with

photographs, that supported Grabowski's testimony that the residence was

consistently used as a two-family home until damaged by the 2003 fire. Mezoff

further attested that, starting in 2005, he applied for permits, installed a new

roof, windows, siding, and framing, and, in 2006, he submitted architectural

plans to the Borough showing the home was comprised of two units.

      Mezoff also noted that he paid for two sewer bills until the foreclosure

and that at no time was he "advised verbally or by mail that the property had

been changed from a two[-]family to [single-family] residence."            Mezoff

explained that sometime in late 2006, he ran out of funds to complete

construction and that "[he] did not intend [to] stop the construction but the lack

of money and . . . [the fact that he] was tied up with other projects . . . held up

further work on the property."

      In its September 5, 2017 Resolution, the Board initially referenced the

Borough's local zoning ordinance, stating,

            Section 502 . . . sets the standard to be applied in a
            determination by a Borough administrative official or
            body as to when a non[]conforming use is to be
            considered abandoned. Section 502.1 states that "[i]f

                                                                           A-0145-18T2
                                        5
            the non[]conforming use of any land or building is
            terminated for a period of time of one year or more,
            such termination shall be presumed to constitute an
            abandonment . . . and the burden shall be placed upon
            any person asserting that such a use was not abandoned
            to affirmatively prove such an assertion . . . ."

      Despite its reference to the temporal presumption in Section 502 of the

Borough's zoning ordinance, the Board repeatedly cited and applied the standard

set forth in Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton,

410 N.J. Super. 255 (App. Div. 2009) to the abandonment issue. In this regard,

the Board found that,

            [a]pproximately a decade passed between the
            functional abandonment of the renovation project and
            the acquisition of the property by [plaintiff]. The Board
            finds that [the] factual record during that period is, to
            say the least, hazy and obscure based on the record as
            presented by [plaintiff], and said record offers little
            factual basis to refute the conclusion of the zoning
            officer in his April 27, 2017 memorandum. The Board
            finds under Berkeley Square that the failure to complete
            the renovations and resume the property's prior
            non[]conforming use constituted a failure to act to
            retain the interest that is the subject of the abandonment
            inquiry . . . and that, based on [Mezoff's] conduct over
            the decade subsequent to the abandonment of the
            renovation project, [Mezoff] did intend to abandon the
            prior non[]conforming use.

      Plaintiff filed an action in lieu of prerogative writs, pursuant to Rule 4:69-

1, and contended that the Board's denial of his appeal was arbitrary, capricious,


                                                                            A-0145-18T2
                                         6
and unreasonable. After conducting a non-evidentiary hearing on August 9,

2018, the court issued an August 10, 2018 written opinion and accompanying

order reversing in part, and remanding in part, the Board's decision.

      In its written decision, the court noted that the Board based its finding of

abandonment "upon the long period of time that transpired since the fire that

occurred in 2003 [and] Mezoff's failed attempts to restore the property as a two-

family use in 2006." The court held, however, that because "the Board's

consideration of the other issues . . . cloud[ed] [its] ability to discern how much

weight the Board may have given to the improper reasons offered to support its

finding," the decision of the Board "was arbitrary, capricious[,] and

unreasonable under the circumstances."

      With respect to the "improper reasons" purportedly considered by the

Board, the court explained that, "[s]ince the Board admitted [Mezoff's]

[a]ffidavit but did not advise [plaintiff] that it would not be seriously considered

without live testimony[,] . . . the preferred solution would be to remand the

matter . . . in order to allow [plaintiff] to call [Mezoff] . . . so that a full record

can be made concerning [Mezoff's] testimony and position." The court reasoned

that if plaintiff could produce Mezoff, the Board could determine whether

plaintiff provided sufficient evidence to meet his burden and the record would


                                                                               A-0145-18T2
                                          7
be "more complete so a reviewing court [could] properly consider the full

record."

      Additionally, the court noted that despite both parties referencing

Wilczek's memorandum in their briefing, "it [was] questionable whether his

report was properly considered without exposing his positions and opinions . . .

to cross-examination."    The court directed either party, on remand, to call

Wilczek to testify and explain how he reached the conclusion that the two-family

use was abandoned based on his finding that the property record card was

changed from two-family to single-family in 2006. According to the court, the

Board should then make clear the extent that it relied on the property record card

because there was "no evidence in the case dating to the time frame of 2006 that

would indicate . . . any valid basis upon which to conclude that the two-family

use had been abandoned by [Mezoff] in accordance with the standards

established under New Jersey law."

      The court reasoned that "[t]he Board's finding effectively attempts to

confirm that the designation of the property as a single-family use that appeared

on the . . . property record card justifies its finding, even though there is no

evidence to indicate how or why that change occurred" and that the "unexplained

change in the [property record card] does not and cannot be said to be an overt


                                                                          A-0145-18T2
                                        8
act by the property owner that indicates an abandonment of its property rights

so as to support the Board's findings."

      The court further held that it was improper for the Board to consider

plaintiff's maintenance of the property, since it was "clear that the Board

[m]embers, or at least some of them, believed that the property was not properly

maintained." The court reasoned that the Board's consideration of maintenance

of the property would not be a proper consideration unless it can somehow

demonstrate that plaintiff's or Mezoff's failure to maintain the property is

causally related to an intention to abandon.

      Finally, the court ruled that it was improper for the Board to rely on the

Borough zoning ordinance Section 502 to resolve the abandonment issue.

Specifically, the court concluded that "the Board's reliance upon the specific

strict time requirements in its . . . [o]rdinance was improper, arbitrary, and

capricious" because "'under New Jersey's enabling legislation [and as articulated

in Berkeley Square], a municipality cannot lawfully adopt an ordinance

provid[ing] for termination after non-use for a stated period of time without

regard [to] intent to abandon.'" This appeal followed.

      On appeal, the Board principally contends that the court erred by

"imputing other reasoning, entirely without support in the record, onto the


                                                                         A-0145-18T2
                                          9
Board, and, in turn, [finding] this phantom reasoning arbitrary, capricious[,] and

unreasonable."    The Board also argues that the court substituted its own

judgment to that of the Board and gave improper weight to Mezoff's affidavit,

improperly considered the property tax card issue referenced in Wilczek's

memorandum, erroneously implied that the Board considered property

maintenance in its analysis, and wrongly inferred reliance on the Borough's

abandonment ordinance.      Finally, the Board maintains the court erred in

reversing and remanding the Board's decision because it failed to reference and

address the actual factual bases underlying the Resolution.

                                       II.

      A municipal entity's "decision is 'invested with a presumption of

validity,'" 62-64 Main St., LLC v. Mayor of City of Hackensack, 221 N.J. 129,

157 (2015) (quoting Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506, 537

(1971)), and "[t]he challenger of municipal action bears the 'heavy burden' of

overcoming this presumption . . . ."         Vineland Constr. Co. v. Twp. of

Pennsauken, 395 N.J. Super. 230, 256 (App. Div. 2007) (quoting Bryant v. City

of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998)). The actions of a

zoning board must be based on "substantial evidence." Ibid. As long as the




                                                                          A-0145-18T2
                                       10
board's actions are "supported by substantial evidence in the record, [we are]

bound to affirm that determination." 62-64 Main St., 221 N.J. at 157.

      "When reviewing a trial court's decision regarding the validity of a local

board's determination, 'we are bound by the same standards as was the trial

court.'" Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs,

442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v.

Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). A

court "may not substitute its judgment for that of the board unless there has been

a clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. at 284. We "give

deference to the actions and factual findings of local boards and may not disturb

such findings unless they were arbitrary, capricious, or unreasonable." Jacoby,

442 N.J. Super. at 462.

      A board acts arbitrarily, capriciously, or unreasonably if its findings of

fact in support of [its decision] are not supported by the record, or if it usurps

power reserved to the municipal governing body or another duly authori zed

municipal official." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013)

(citations omitted). In contrast, a board's decision concerning a question of law

"is subject to a de novo review by the courts, and is entitled to no deference

since a zoning board has 'no peculiar skill superior to courts' regarding purely


                                                                          A-0145-18T2
                                       11
legal matters.'" Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of

Franklin, 233 N.J. 546, 559 (quoting Chicalese v. Monroe Twp. Planning Bd.,

334 N.J. Super. 413, 419 (Law Div. 2000)).

                                      III.

      As noted, on appeal, the Board principally contends that the court failed

to give deference to its finding that Mezoff's actions evidenced an intention to

abandon and failure to act, pursuant to Berkeley Square.         We agree with

defendant and conclude there was substantial evidence in the record to support

the Board's abandonment finding pursuant to Berkeley Square, and the Board,

therefore, did not abuse its discretion when it issued the Resolution. See Price

v. Himeji, LLC, 214 N.J. 263, 284 (2013).

      To establish the existence of a legal, preexisting nonconforming use, the

party must show that the lawful use existed at the time the zoning ordinance was

adopted, and the continuity of such use thereafter. Ferraro v. Zoning Bd. of

Keansburg, 321 N.J. Super. 288, 291 (App. Div. 1999).                  "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." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309,


                                                                         A-0145-18T2
                                      12
315 (1980). "In that regard the courts have permitted municipalities to impose

limitations upon nonconforming uses." Ibid.

      "[T]he actual abandonment of a nonconforming use is fatal to its

continuance." Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16 (Ch.

Div. 1969). Temporary non-use, however, does not constitute abandonment.

Children's Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super. 350, 357

(App. Div. 1996). 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. Berkeley Square, 410

N.J. Super. at 265 (citing S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment

for Stratford, 373 N.J. Super. 603, 613–14 (App. Div. 2004)).

      The proponent of a legal nonconforming use bears the burden of

persuasion. Ferraro v. Zoning Bd. of Keansburg, 321 N.J. Super. at 291. The

proponent of the nonconforming use also bears the ultimate burden to show it

was not abandoned, although an objector has a burden of coming forward with

some evidence of abandonment. Berkeley Square, 410 N.J. Super. at 269.

      Here, although it was undisputed that the use of the residence on the

property as a two-family home was a legal, preexisting nonconforming use, the


                                                                           A-0145-18T2
                                       13
Board, after clearly considering the proofs, including Grabowski's testimony and

Mezoff's affidavit, concluded in the September 5, 2017 Resolution that the prior

owner's "failure to complete the renovation project [w]as the 'overt act' . . . and

the decade that passed in between the issuance of the permits and the application,

as well as the fact that the property changed owners without the project remotely

complete, [served] as [proof of] the 'intention to abandon.'"

      We reject the court's determination that a remand was warranted to permit

plaintiff to create a "more complete" record. First, we note that plaintiff had an

opportunity to call Mezoff and Wilczek as witnesses but elected instead to

present only Mezoff's affidavit. We find no support in the Rules, the MLUL, or

basic principles of fairness to warrant a remand so that plaintiff can create a

factual record that could and should have been developed at the time of the initial

hearing.

      Second, in its Resolution, the Board properly evaluated the evidence

plaintiff presented and acknowledged the implications of Grabowski's testimony

and Mezoff's affidavit stating that "[t]here does appear to be some residual intent

on the part of [Mezoff] to resume the property's usage as a two-family home,

but it is undisputed that the usage was never resumed and the repairs that would

have allowed that usage to resume were never completed." Indeed, it was


                                                                           A-0145-18T2
                                       14
undisputed that the property had not been used as a two-family residence since

the 2003 fire, and both parties were generally in agreement about Mezoff's

actions from the time of fire until the sale of the property, including the various

permits requested and partial renovations.

      We further disagree with the court's determination that the Board did not

point to any fact that demonstrated there was an overt act by either Mezoff or

plaintiff suggesting an intention to abandon, and that the Board relied on the

change in the property record card as the overt act. Although we acknowledge

that the Board's Resolution refers to the change in the property record card when

it restates both Wilczek's findings and Grabowski's testimony, neither the

Resolution nor the oral decision of the Board relies on the property record card

as the overt act pursuant to Berkeley Square. The Resolution clearly sets forth

that Mezoff's failure to complete the renovation project was the overt act, and

the decade that passed in between the issuance of the permits and plaintiff's

application, as well as the fact that the property changed owners without the

project being remotely completed, demonstrated an intention to abandon. The

Board's finding of abandonment did not turn on municipal recordkeeping.

      We also reject the court's finding that the Board improperly considered

plaintiff's maintenance of the property, as that factual conclusion is wholly


                                                                           A-0145-18T2
                                       15
unsupported by the record. At the hearing, the first question regarding property

maintenance came from a Borough resident during the public comment portion.

The Board attempted to redirect the questions stating that plaintiff's appeal was

limited to whether the property was a non-abandoned two-family home.

      The second set of questions regarding maintenance of the property came

from the owner of the property adjacent to plaintiff. The Board made no further

reference to the issue except in its Resolution when it stated that "[a] member of

the public . . . was present at the hearing and offered comment during the public

portion of the hearing concerning the maintenance of the property."

      Finally, we reject the court's conclusion that the Board decision was

arbitrary and capricious because it cited Section 502 of the zoning ordinance in

the Resolution. It is clear based on an evaluation of the Resolution in toto, that

the Board's mention of Section 502 did not form the basis of its decision. Indeed,

other than a single historical reference to the ordinance, the Resolution makes

no further mention of it. Had the Board substantively relied on Section 502, it

would have mechanically denied plaintiff's application due to Mezoff's failure

to act one year after ceasing construction activity on the property, or some other

discrete act.




                                                                          A-0145-18T2
                                       16
      Instead of concluding that the nonconforming use was abandoned because

it was "terminated for a period of time of one year or more," as referenced in

Section 502, the Board expressly relied on Berkeley Square, citing the decision

five times in its Resolution.       Further, the Board comprehensively and

conscientiously considered the evidence plaintiff elected to present at the

hearing and correctly applied the Berkeley Square abandonment test to the facts

before it.

      For example, the Board found that "from the point the residence was

damaged in a fire in 2003, the intention of the ownership of the property became

less clear to the point where . . . the use had been abandoned" and that "the usage

[as a two-family home] was never resumed and the repairs that would have

allowed that usage to resume were never completed." The Board further found

that "[a]pproximately a decade passed between the functional abandonment of

the renovation project and the acquisition of the property," and that the "factual

record during that period is . . . hazy and obscure based on the record as

presented by [plaintiff], and said record offers little factual basis to refute the

conclusion of [Wilczek] in his April 27, 2017 memorandum." We also vacate

the trial court's determination that Section 52 is preempted by the MLUL and

invalid. That determination was made without proper notice to the governing


                                                                           A-0145-18T2
                                       17
body, which is unrepresented in this case. See R. 4:28-4. The governing body

also was not duly notified of the pendency of this appeal. See R. 2:5-1(g). In

any event, we were advised by the Board's counsel at oral argument that the

Borough intends to rescind the ordinance, so the notice issue is moot.

                                      IV.

      In sum, because there was substantial evidence in the record to support

the Board's decision, we conclude it did not act in an arbitrary and capricious

manner in determining that the prior, legal nonconforming use was abandoned.

Consequently, we reverse the court's August 10, 2018 order and remand for the

court to issue a conforming order reinstating the Board's September 5, 2017

Resolution.

      Reversed and remanded. We do not retain jurisdiction.




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                                      18
