SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19 HIDDEN OAK WOODS, LLC, Plain tiff

- Respondent,

v. P&F GIANCOLA, d/b/a GIANCOLA WRECKING AND AUTO SALES, Defendant

- Appellant,
and DEBRA RAINWATER, PP, AICP, in her capacity as Zoning Officer of the Township of East Brunswick, Defendant,
and
THE TOWNSHIP OF EAST BRUNSWICK, Defendant

- Respondent

.

_____________________________

Submitted March 24, 2021

– Decided July 26, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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- 19 Before Judges Vernoia and Enright. On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No

. C

- 000 140

- 17. Thomas Williamson, attorney for appellant. Eckert Seamans Cherin & Mellott, LLC, attorneys for respondent Hidden Oak Woods, LLC (Frank J. Petrino, of counsel and on the brief; Victoria D. Britton, on the brief). Hoagland, Longo, Moran, Dun st & Doukas, LLP, attorneys for respondent The Township of East Brunswick (Michael J. Baker and Joseph D. Palombit, of counsel and on the brief).
PER CURIAM Defendant P&F Giancola d/b/a Giancola Wrecking and Auto Sales appeal s from the February 19, 2020 order entered by Judge Vincent LeBlon granting plaintiff

- respondent Hidden Oak Woods, LLC summary judgment and direct ing defendant t o abate various zoning violations arising from defendant's use of its property. 1 For the reasons outlin ed below, we affirm.

1 Because no other named defendant appeals from the February 19, 2020 award of summary judgment, and defendant

- respondent Township of East Brunswick joins plaintiff in asking us to affirm the February 19 order, we refer to P&F Giancola as defendant throughout this opinion.3 A

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- 19 I. Plaintiff owns approximately forty

- one acres of land in the Township of East Brunswick (Township) that was designated for construction of an inclusionary development in the Township's Third Round Housing Element and Fair Share Pla n (HEFSP)

. The property was rezoned from Industrial/Manufacturing to Multiple Dwelling Apartment , i.e., a residential zoning district, to accommodate a planned 275

- unit d evelopment , with twenty percent of the units set aside for low

- and moderate

- income families. Defendant's property , also referenced in the record as the "Giancola property," is situated diagonally across the street from plaintiff's property

. Defendant has owned and operate d an automobile wrecking, salvage, and storage business since 1987 , and its predecessor in title obtained a use variance
from the Township zoning board in 1955, permitting th ose uses on defendant's property

. At th e time the 1955 use variance was granted, d efendant's property was subject to the Township's 1952 zoning ordinance.
In August 2017, plaintiff filed a complaint against the Township, Debra Rainwater , 2 in her capacity as Township z oning o fficer , and defendant , wherein it alleged declaratory relief s hould be granted in lieu of mandamus so that the

2 Defendant Debra Rainwater did not submit a res ponding brief.4 A

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zoning officer and the Township enforced the terms and conditions of the Township's 1952 zoning ordinance, as well as its 1963 junkyard and current zoning ordinance s , against defendant. Plaintiff also sough t to restrain defendant's p urported nuisance s on defendant's property

. According to plaintiff, the 1955 u se v ariance granted to defendant's predecessor did not allow defendant to subsequently engage in various activities after it assumed ownership of the property

. For example, plaintiff contended the 1952 z oning o rdinance did not authorize , and therefore prohibited, front yard parking , yet defendant used its property for that purpose without securing a variance. Plaintif

f also claimed defendant violated the 1952 zoning ordinance because its operations were not contained "within a building or a walled enclosure at least six . . . feet high." Additionally, plaintiff alleged defendant violated the Township's 1963 j unkyard o rdinance, which prohibited parking in the front yard and required walled enclosures to be at least eight feet high so defendant's junkyard would not be visible from a public street. Further, plaintiff a sserted defendant 's property violated the Township's current zoning ordinance because the cars parked in defendant's front yard were "not confined within the required bounded area" even though defendant's building was situated less than 175 feet from the front property line , and the area5 A

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between the parked cars and the front property line was "not screened" as required. Moreover, plaintiff alleged defendant violated the Township's current
ordinance as to signage and advertising because defendant had "not applied for and/or received a zoning sign permit for any of the signage or advertising displays on" its property. Based on defendant's alleged multiple violations , plaintiff argued defendant was engaged in "an illegal and negligent use of [its] . . . property " "against the public interest , " which adversely affected "the marketability of the Inclusionary Development to be constructed on the Hidden Oak Property."
II. The parties unsuccessfully attempted to resolve their dispute by engag ing in settlement discussions

. Wh en negotiations failed, plaintiff moved for summary judgment against defendant; the Township joined in plaintiff's application

. Judge LeBlon heard oral argument on plaintiff's summary judgment
motion in September 2019. During argument, plaintiff's counsel acknowledged there w as a question as to whether defendant's property was in a light or a heavy industrial zone in 1955. Plaintiff's counsel argued the issue was immaterial because the standards were the same for both zones , other than for front yard6 A

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setback s. Thus, plaintif f's attorney represented, "for the purposes of this motion, we will concede

. . . there is not a violation of the front yard setback. " Counsel for plaintiff then recounted the ordinance violations outlined in its complaint and asked the court to "take jud icial notice of the negative impact that the continual and long

- standing zoning violations have had on the surrounding and neighboring properties, including Hidden Oaks."
T he Township 's attorney confirmed during argument that his client agreed with plaintiff's position, even though the Township was a named defendant . He highlighted that after the 1955 use variance authorized defendant's predecessor to operate an auto wrecking, salvage, and storage business, defendant "intensified and exp anded" the use of the property to include used car sales

. He further stated that even if defendant's operations were a "preexisting nonconforming use, there's also evidence from the pictures that it's been expanded. So we don't think it's preexisting, bu t even if it were, clearly [it] can't be expanded into the front yard with used car sales going up front." Further, the Township concurred with plaintiff that defendant violated the Township's sign ordinance

. Counsel for defendant noted the historical u se of the property, remarking that "ever since 1955, a junkyard has been operated at this property without7 A

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interruption for nearly 65 years now, " and that "no later than 1973, the [prior] owner of the property . . . was also selling used cars at the Gianco la property." Similarly, defendant argued it had photographic evidence from 1969 and 1972 showing "cars were parked in the front yard of the property." Further, defendant argued that when defendant's owners bought the property and business in 1987,
"the building had two stories, and there were three driveways on the property." Moreover, defendant claimed "all necessary municipal and state licenses needed to operate [defendant's] business" were obtained as recently as the past year, and "any off

- st r eet parking on any location on the property . . . is expressly permitted." Further, defendant argued it had complied with the Township's fencing requirement, that there was no signage limitation under the 1952 ordinance when defendant's predecessor owned the property , and the "use of the Giancola property . . . qualif [ied] as a best and nonconforming use because the use existed at a time during which . . . the 1952 ordinance[] allowed such uses. " Counsel added that "such vested nonconforming uses of property rights . . . cannot be voided or lost easily , " and " [e]ven if the court were to consider [the] recent ordinance, and the junkyard ordinance . . . , plaintiff is still not entitled to summary judgment. "8 A

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- 19 III. On January 29, 2020, in a well

- reasoned and thorough opinion, Judge
LeBlon rejected defendant's arguments and awarded plaintiff summary judgment ; on February 19, 2020, he issued a conforming order. In his opinion,
t he judge initially noted defendant's pro perty was in a h eavy i ndustrial z one under the 1952 ordinance , even though defendant asserted its property was in the light industrial zone under th at ordinance . The judge then methodically itemized defendant's "current and historic violations of the Town ship Zoning Code" as well as defendant's violations of its 1955 use variance. We need not
reiterate each finding of a violation here. Instead, we cite to some of those violations found by the judge to demonstrate why we are persuaded there is no basis to disturb his summary judgment award. For example, the judge noted that considering defendant's property was in the heavy industrial zone under the 1952 ordinance, that ordinance required "a minimum front yard building s etback of 100' from the public roadway" and "there has been no compliance with the 100' front yard setback." The judge found "a variance from this requirement was neither sought nor given at the time the 1955 Use Variance was granted for the Giancola Prop erty." Because defendant had asserted its property was located in the light industrial zone under9 A

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the 1952 zoning ordinance, J udge LeBlon clarified that "[t]he zoning standards applicable to Giancola's violations of the Township's 1952 zoning ordinance ar e the same in the light . . . and the heavy industrial zone[s] with the exception of front yard setbacks," but significantly, whether defendant's property was in a
h eavy or l ight i ndustry z one under the 1952 o rdinance was not a material fact
sufficient to defeat summary judgment because plaintiff " concede [ d ], for the purposes of this motion only," that defendant 's property was in the light industrial zone

. Therefore, the judge determined there was "no violation of the front yard setback requirement . . . u nder the 1952 zoning ordinance" for the purpose of plaintiff's summary judgment application. Additionally, t he judge determined the 1952 zoning ordinance required an automobile wrecking and salvage business to be conducted within a building or walled enc losure six feet high, yet based on aerial photographs of defendant's property, it was evident defendant's property was not enclosed by a six

- foot wall or fence, "and a variance f r om this requirement was neither sough t nor given a t the time the 1955 Use V a riance was granted for the Property." Further, Judge LeBlon found defendant's business operations on its property "constituted a junkyard" under th e 1963 junkyard ordinance. He
concluded defendant was in violation of the provisi ons of this ordinance , "which10 A

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is a licensing ordinance for junkyards within the Township ." The judge explained "that when two enabling ordinances (licensing and zoning) exist, provisions relating to regulation of the property need not be confined to only the zoning ordinance." Finding the 1963 junkyard ordinance and the current zoning ordinance " must be construed together, " the judge determined the junkyard

o rdinance did not permit front yard parking , and significantly,

the current zoning ordinance proh ibits front yard parking except in a limited circumstance that does not exist herein (i.e., if the front of the building is 175' from the property line, then front yard parking is permitted in an area bounded by a line 125' from the street and the front of the building screened by l andscaping). Therefore, under both ordinances, front yard parking is not permitted without a variance, which Giancola has never applied for or received. Yet, . . . Giancola parks motor vehicles in the front yard up to the prope rty line as well as in the Township's right of way. Additionally, when construing the 1963 junkyard and current zoning ordinance s together, the judge found "a uniform and solid eight

- foot fence that screens the junkyard operations on the Giancola Property from the public streets is required for all junkyard operations in the Township ," but defendant maintained a "mismatch of walls and fencing of varying heigh ts on the Giancola property that does not entirely surround it and does not screen the junkyard operations from view."11 A

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The judge also concluded th at under the current zoning ordinance , defendant's property is in the Industr ial/ Manufacturing zone , requiri ng a 175

- foot setback from the front property line when facing a residential development, and that automobile parking in the front yard must be within the bounded area and 125 feet from the street . Nevertheless , defendant's property was in front of
a resi dential development and its setback was not at least 175 feet

. The judge stated "the Giancola property is parking motor vehicles only twenty

- eight . . . to thirty

- four . . . feet from the front property line and within the Township's right of way

. " Addit ionally, the judge found d efendant violated the front yard setback of 100 feet for principal buildings with frontage on a street that is the boundary line of a residential zone

. Further, the judge found defendant was in violation of the Township's sign

o rdinance , as defendant never received authorization for approximately eight signs located on the property . He also found defendant 's property exhibited "multiple flat signs," rather than one authorized flat sign, which " appear [ ed ] to exceed the fifteen percent . . . cap" "of the area of the side of the building to which it is attached." The judge noted that defendant conceded the 1952 zoning ordinance "is silent on the issue of signage , and that it did not obtain a sign permit from the Township when it updated the signage " upon purchasing the12 A

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property

. T he judge also stated silence under the 1952 ordinance "in no way indicates authorization for any signage." Additionally, Judge LeBlon found the 1955 use variance authorized defend ant to use the property "for an automobile wrecking, salvage, and storage business, and nothing else." Because the use of defendant's property intensified and expanded to include towing services and sales, "without a variance or other approval , " and these "expanded and intensified uses are not permitted in the [Industrial/Manufacturing d ] istrict whe r e the Giancola Property is located, " such expansions and intensifications constituted " zoning violations under the Township Code. " The judge added,

it is ind eed nonsensical for Giancola to assert that the sale of used automobiles, which b egan after the 1955 Use Variance was obtained for the property for different and limited uses (i.e., automobile wrecking, salvage, and storage) is a pre

- existing non

- conformin g use that does not require a use variance. A property owner cannot add additional, non

- permitted uses to a property after obtaining a use variance without making application to the local zoning board, and obtaining approval for, a new or expanded use var iance. After finding plaintiff was an "interested party" under N.J.S.A. 40:55D

18, Judge LeBlon concluded :

[t] he aforementioned zoning violations maintained by [defendant] on [its] [p]roperty are an illegal use of the . . . [p]roperty, as well as eyesores and nuisances . . . .13 A

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- 19 The various zoning violations and nuisances maintained by [defendant] . . . interfere with [plaintiff's] right to equal use and enjoyment of [ its]

. . . [p]roper ty and will also adversely affect the marketability of the inclusionary development to be constructed thereon during the Third Round. . . . The continuation of the aforesaid zoning violations and nuisances by [defendant] . . . adversely impacts the econom ic feasibility of [plaintiff's] inclusionary development and is also against the public interest. Accordingly, the judge determined plaintiff was entitled to summary judgment and defendant was required to "remedy and abate all zoning violations and nuis ances on . . . its [p] roperty within 30 days."
IV. On appeal, defendant presents a mix ture of novel and recycled arguments , many of which are unsupported by citations to the record or a legal authority
and are presented in a conclusory fashion. Regarding the arguments newly raised before us, defendant contends : (1) plaintiff did not prosecute the correct type of action because it sought relief for violations which were "quasi

- criminal in nature"; (2) the trial court improperly relied on " material misrepresentation [ s ]" of plaintiff's counsel ; and (3) "although [defendant's] first attorney did not name this as a Cascade situation," "[h]e presented the idea that14 A

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a permitted use in a higher zone is permitted in a lo wer zone," and "under a Cascade approach," defendant did not need a variance to sell used cars. 3
We decline to reach these newly minted arguments

. It is a well

- settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available " unless the questions so r aised on appeal go to the jur isdiction of the trial court or concern matters of great public interest. " [ Nieder v. Royal Indem. Ins. Co. , 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer , 58 N.J. Super. 542, 548 (App. Div. 1959)) ; see also State v. Robinson , 200 N.J. 1 , 19 (2009) ("Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves."). ] Here, defendant's novel argume nts are neither jurisdictional in nature nor do they substantially implicate the public interest. Moreover, to the extent defendant argues the judge relied on a material misrepresentation of facts as set forth in the statement of material facts included

3 Defendant concedes it has offered no legal authority to support its "cascade zoning" argument, that "the Cascade approach has vanished and has been replaced by a [d]iscrete and [d]etailed [z]oning [o]rdinance," and "New Jersey case law c urrently provides that a use not expressly provided for in a variance is prohibited."15 A

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with plaintiff 's summary judgment motion , we reject this contention. Specifically, defendant argues

[a] reading of "Exhibit D" . . . clearly shows[ ] that this crucial document to [plaintiff's] proving the violations of the conditions as to the 1955 Use Variance is [not] the 1955 Use variance. "Exhibit D" is actually a copy of the incomplete [application]. It appears to be incomplete in that the [fo urth] page . . . has [two] at the very top and begins with item [twelve] . This suggests that page [one] , with items . . . [one] to [eleven ] , is missing. This argument ignores that defendant admitted to facts concerning the 1955 use variance, both in it s "response to statement of undisputed material facts" and its answer to the complaint. Indeed, in its "response to statement of undisputed material facts," defendant outright acknowledged,

[i]n or about 1955, Giancola (or its predecessor in interest) wa s granted a use variance by the Township's Zoning Board of Adjustment for the operation of an automobile wrecking, salvage, and storage business on the Giancola Property (the '1955 Use Variance'). See 1955 Use Variance attached to the [certification of pl aintiff's counsel] as Exhibit D

. [ (Emphasis added). ] The record also reflects d efendant made a similar admission in paragraph eighteen of its answer to plaintiff's complaint . Further, defendant admitted in its response to plaintiff's statement of und isputed material facts that "[a]t the16 A

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time the 1955 Use Variance was granted, the Giancola Property was subject to the Township's 1952 zoning ordinance." Given this record, plaintiff understandably denies it misrepresented

facts, material or otherwise, w hen referring to Exhibit D of the Motion for Summary Judgment as the "1955 Use Variance," but rather relied on [defendant's] own admissions in its Answer and its opposition to [plaintiff's] Statement of Undisputed Material Facts in the underlying Motion fo r Summary Judgment confirming that Exhibit D constituted the sum and substance of the use variance obtained by [defendant's] predecessor . . . . To put it simply, [plaintiff] could not have misrepresented the facts when [defendant] itself relied on Exhibi t D to support the existence of the 1955 Use Variance . . . . Accordingly, and contrary to [defendant's] newly raised arguments . . . , [plaintiff] did not misrepresent the nature of Exhibit D to the underlying Motion for Summary Judgment. In fact, [defen dant] admitted on at least three occasions that Exhibit D is the essence of the 1955 Use Variance that its predecessor obtained for the Giancola Property.
V.
Re lying on arguments previously made before Judge LeBlon, defendant
contends : ( 1) plaintiff failed to establish operations at defendant's property were in violation of the ordinances it cited because a "nonconforming use existing at the time of an ordinance may be continued" ; ( 2 ) plaintiff's claims about defendant 's expanded and intensified use of its property lacked specificity ; ( 3 ) plaintiff 's proofs were lacking as to defendant's alleged improper use of the17 A

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property for towing, the sale of used cars, parts and tires, a second

- story addition, its proximity to the front property line, and expansion into new areas; ( 4 ) plaintiff failed to establish defendant was in violation of the sign ordinance; and ( 5 ) the trial court erred in finding defendant's use of its property was a

common law nuisance. These arguments are unavailing

. It is well established that to balance the municipality's interest in amending and updating its zoning ordinances with a property owner's interest and right to maintain the use of its property, certain pre

- existing, newly prohibited, nonconforming uses are permitted. Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment , 154 N.J. 62, 68 (1998) (quoting Palatine I v. Planning Bd. , 133 N.J. 546, 565 (1993)). Such nonconforming uses may "co

exist with the ordinance that, on its face, prohibits them." Ibid. (internal quotations omitted). However, courts limit the scope of the nonconforming use so that it can conform with the curre nt ordinance "as quickly as is compatible with justice." Ibid. (quoting Town of Belleville v. Parillo's, Inc. , 83 N.J. 309, 315 (1980)). To qualify for a nonconforming use, the property owner "may apply in writing for the issuance of a certificate certif ying that the use . . . existed before the adoption of the ordinance which rendered the use . . .18 A

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nonconforming." Id. at 68

- 69 (quoting N.J.S.A. 40:55D

- 68) (alterations in original)

. There is no suggestio n by defendant that it followed this procedure. We also note that N.J.S.A. 40:55D

- 70 gives a board of adjustment authority to grant a variance to a property owner to depart from the regulations of the zoning code and permit a use which does not conform to the code. "An application for a use variance based on the assertion that a property is particularly suitable for a project requires an evaluation of whether the use, otherwise not permitted in the zone, . . . will promote the general welfare." Price v. Himeji, LLC , 214 N.J. 263, 287 (2013). Again, defendant does not argue it applied for a variance t o deviate from the Township's regulations regarding its use of its front yard for parking cars or to maintain fencing shorter than the eight

- foot requirement outlined in the 1963 junkyard and current zoni ng ordinance s . Likewise, defendant does not contest that it did not seek a variance for its non - conforming signs or its violation of t he 100

- foot setback requirement

. Further, in challenging the summary judgment award, defendant does not dispute that after the 1955 use variance was granted to its predecessor , defendant expanded its use of the property to include additional services, and it did so without seeking a variance. As Judge LeBlon observed, "[a] property owner cannot add additional, non

- permi tted uses to a property after obtaining a use19 A

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variance without making application to the local zoning board, and obtaining approval for a new or expanded use variance." See Ha n tman v. Randolph Twp. , 58 N.J. Super. 127, 135 (App. Div. 1959) (nonconforming uses "may not be enlarged as of right"). Regarding defendant's nuisance argument, we note p roperty owners must use their land in a way that avoids detriment or injury to other property owners. Sans v. Ramsey Golf & Country Club, Inc. , 50 N.J. Super. 127, 133 (App. Div. 1958). Courts look to whether a property owner's activities materially and unreasonably interfere with another's comforts or existence "not according to exceptionally refined, uncommon, or luxurious habits of living, but according to the s imple tastes and unaffected notions generally prevailing among plain people." Id. at 134

- 35 (citations omitted)

. Here, the record amply supports Judge LeBlon's finding that defendant 's activities interfered with the marketability of plaintiff's neighbori ng property once plaintiff's property became the site of a development included in the Township’s court

- approved Third Round HEFSP

. When reviewing an order granting or denying summary judgment, we apply the same standard as the trial court. State v. Pe rini Corp. , 221 N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt , 214 N.J. 76, 91 (2013) ) . In20 A

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considering a motion for summary judgment, "both trial and appellate courts must view the facts in the light most favorable to the non

- moving party." Bauer v. Nesbitt , 198 N.J. 601, 605 n. 1 (2009) (citing R. 4:46

- 2(c); Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995)). Courts must grant summary judgment if the evidence shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46

- 2 (c) . Even if the pleadings show there may be an issue of material fact, a trial court must also look to and consider all the papers on file to determine if there is, in fact, a dispute. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 75 (1954). Bare conclusions from the pleadin gs are not enough to defeat a summary judgment application without factual support from the papers. United States Pipe & Foundry Co. v. American Arbitration
Ass'n , 67 N.J. Super. 384, 399

- 400 (App. Div. 1961). On the other hand, opposing parties may show that evidentiary materials relied upon raise credibility issues and thus defeat a motion for summary judgment. D'Amato v.
D'Amato , 305 N.J. Super. 109, 114 (App. Div. 1997). In deciding a summary judgment motion, the trial court must only determine whet her there is a genuine issue of material fact but should not render a decision on such issues. Brill , 142
N.J. at 540. Issues of law are subject to the de novo standard of review, and21 A

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thus the trial court's determination of such issues is accorded no def erence. Kaye v. Rosefielde , 223 N.J. 218, 229 (2015) (citations omitted). Having reviewed the record, the parties' briefs, and applicable legal principles, we are satisfied we have no basis to disturb Judge LeBlon's February 19, 2020 order , and affirm t he order substantially for the reasons he expressed in his thoughtful and comprehensive January 29, 2020 opinion. To the extent we have not expressly addressed any of defendant's remaining arguments, we find they lack sufficient merit to warrant discussi on in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.