[brief] THE DEFENDANTS’ OPERATION OF [...] HAS BEEN AND CONTINUES TO BE A NUISANCE SINCE THE DAY IT OPENED IN MAY 2020 AND THE TRIAL COURT BELOW ERRED IN NOT SO RULING (T4 at 27:8-32:7)  Plaintiffs are entitled to an injunction and damages as a result of the nuisance that has existed on its neighbor’s property since May 2020.  The Court below erred in failing to issue that injunction and this Court should remand the matter to the Trial Court in order to award the Plaintiffs damages.  A nuisance is a “unreasonable interference with the use and enjoyment of the Plaintiff’s “property”.  The Plaintiffs’ property is in a residential zone.  The [...] is also in that zone.  The only uses permitted in the zone are one- and two-family residences.  The Defendants’ current Italian take-out restaurant has created obnoxious noise, odors, and traffic that has clearly unreasonably interfered with the Plaintiff’s residential use of their property and the quality of their life for almost four years.  “The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. ”  Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959).  To establish a private nuisance, a complaining party must prove by clear and convincing evidence: (1) injury to the comfort of ordinary people to an unreasonable extent, and (2) unreasonableness under all the circumstances, particularly after balancing the needs of the maker to the needs of the complainant.  Traetto v. Palazzo, 436 N.J. Super. 6, 12 (App. Div. 2014).  A "mere annoyance" is insufficient to establish an actionable injury.  An objective standard is used to determine whether the complained of activity by the defendant is sufficiently unreasonable to plain people of simple tastes.  Sans, 29 N.J. at 134.  Once a plaintiff establishes the first prong, the court then moves to an analysis of the defendant's use of its property and whether same is in fact "unreasonable."  Relevant factors for the court to consider include "the character, volume, frequency, duration, time, and locality of the complained of activity.  Lieberman v. Saddle River Tp., 37 N.J. Super. 62, 67 (App. Div. 1955).  Also relevant, though not dispositive, is whether the conduct complies with controlling government regulations.  Traetto v. Palazzo, 436 N.J. Super. 8, 13 (App. Div. 2014); see also Rose v. Chaikin, 187 N.J. Super. 210 (Ch. Div. 1982).  Here, it is submitted that the Plaintiffs have established that the Defendants' continued operation is an unreasonable interference with the use and enjoyment of their property.  In addition, they have shown that the activities carried on by the Defendants would objectively cause an ordinary person to be discomforted to an unreasonable extent.  Since the activity carried on is illegal (in violation of the zoning ordinance) the balancing of the needs of the Defendants carry no weight at all since those “needs” are to continue an illegal activity.  As such, not only are the Plaintiffs entitled to an injunction as a result of this nuisance, they are also entitled to be awarded money damages to compensate them for having to live next to this non-permitted restaurant from May of 2020 up to and including the present date.  See Rose v. Chaikin, 187 N.J. Super. 210 (Ch. Div. 1982).  The Court below erred in not issuing an injunction and, further, erred in not awarding the Plaintiffs damages for this nuisance that they have had to live with since May 2020.  It is respectfully requested that this Court remand the matter to the Trial Court for the issuance of an injunction and to award Plaintiffs damages.  POINT IX