SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0778-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

JOSEPH ZACCARINO and 

MJZ, LLC, 

 Defendants-Appellants. 

___________________________

Submitted February 27, 2024 – Decided April 26, 2024 

Before Whipple, Mayer and Enright. 

On appeal from Superior Court of New Jersey, Law 

Division, Morris County, Municipal Appeal No. 

22-009-A. 

Lavery, Selvaggi, Abromitis & Cohen, PC, attorneys 

for appellants (Lawrence P. Cohen, on the briefs).

Mason Thompson, LLC, attorneys for respondent 

(Brian W. Mason, on the brief).

PER CURIAM 

Defendants MJZ, LLC (MJZ) and MJZ's owner, Joseph Zaccarino, appeal 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0778-22

from an October 20, 2022 order finding them guilty of violating Mount Olive 

Township (Township) Land Use Ordinance § 550-101D (Ordinance). We 

affirm. 

I.

 Defendants own property at 172 Smithtown Road (Property) in the 

Township. The Property is situated in the Township's RR-A zone, which permits 

residential and agricultural uses. The Property sits on approximately eleven 

acres and consists of a residence, a farm assessed area managed by a tenant 

farmer, and a 5,000 square foot pole barn that houses an office, bathroom, and 

four service bays. 

In May 2021, the Township's Planner and present Zoning Officer, Charles 

McGroarty, received a complaint from one of defendants' neighbors about noise 

on the Property. McGroarty inspected the Property and issued a notice of 

violation to defendants for operating what he believed to be a landscaping 

business, in violation of the Ordinance. Three months later, defendants received 

a summons from the Township for the violation. 

The case proceeded to trial before the municipal court in October 2021. 

During the five-day trial, the State called multiple witnesses to testify, including 

McGroarty. McGroarty stated he inspected the Property on multiple occasions 
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after receiving a noise complaint from one of defendants' neighbors, as well as 

complaints there was "a lot of truck traffic . . . [and] constant activity on the 

site." He also testified that when he visited the Property on August 3, 2021, he

saw large construction equipment and employees working there. McGroarty 

stated "the activities . . . on the [P]roperty" were consistent with "a landscape 

business" because "there were . . . vehicles parked there, which [he] took to be 

employee parking," because "there were no customers walking around." He also 

noted dump trucks and a backhoe on the site, as well as "concrete bins," which 

were "typical of what one would find . . . on a landscape business property." 

Concluding defendants were violating the Ordinance by operating a landscaping 

business on the Property, a use not permitted in the RR-A zone, McGroarty 

"hand delivered a summons" "to one of the two . . . women . . . working inside 

[defendants'] office" on August 3, 2021. 

When McGroarty visited the Property several more times in August 2021, 

he saw large construction equipment, concrete storage bins, and employees 

working in the office inside the barn. He inspected the Property again in October 

2021, and saw two men "working . . . in the bay area" of the barn. McGroarty 

introduced himself to the men, and "[t]hey directed [him] to [defendants'] 
4 A-0778-22

office," where McGroarty "hand delivered a[nother] . . . violation notice for 

subsequent violations . . . [he] believed [we]re occurring on the site." 

Once McGroarty's testimony concluded and the State rested, the defense 

moved to dismiss the case. The municipal judge denied the motion, finding "the 

State . . . sustained its burden at th[at] stage of the proceeding [to show] . . . 

defendant[s were] using the [P]roperty for a landscape business." 

The defense called Frank Holzworth, the prior Property owner. Holzworth 

testified that he applied to the Township Planning Board (Board) in February 

1979 for site plan approval to construct a pole barn on the Property and 

represented to the Board he intended to grow nursery stock there. By then, 

Holzworth started his own landscaping business off site, so he also proposed 

storing his landscaping equipment in the pole barn. There were no other 

structures on the Property at that time. 

On cross-examination, Holzworth admitted that when he and his attorney 

appeared before the Board in February 1979, his attorney assured the Board 

members that Holzworth had no intention of using the Property for his 

landscaping business. Holzworth testified he "did[ not] interrupt" or "correct" 

his attorney when counsel made this representation before the Board, even 

though "it was [his] intention to use the [P]roperty for [his] landscape business." 
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Further, Holzworth testified the Board adopted a resolution in March 

1979, allowing construction of the pole barn for his proposed nursery. 

Holzworth acknowledged the resolution stated, in part: 

The applicant testified that he proposes to use this 

property for the establishment of a nursery for shrubs 

and flowers, which nursery shall not be operated as a 

retail outlet, but solely for the purpose of use in his 

landscape business. The garage building is to be 

utilized for the storage of equipment utilized in the 

operation of the nursery. Some of the equipment also 

will be utilized in the landscaping business. 

[(Emphasis added).] 

Notwithstanding the terms set forth in the resolution, as well as the 

representations he and his attorney made to the Board in 1979, Holzworth 

testified that he interpreted the resolution as permitting him to run a landscaping 

business on the Property. He stated on cross-examination that he "knew all 

along what [he] was going to do . . . with the building. [He] was going to use it 

for [his] landscaping business and . . . for the nursery." However, he testified 

he "abandoned the plan" to cultivate nursery stock within a year after the 

resolution passed and ran his landscaping business from the Property until 2018, 

when he sold the Property to defendants pursuant to a 2018 written contract of 

sale. 
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During his testimony, Holzworth conceded that paragraph thirteen of the 

2018 contract for sale provided, in part: 

The property is presently used as a residential singlefamily home; nursery and landscape material and 

equipment storage facility; and agriculturally. The 

Seller states that to the best of his knowledge and belief 

the use that exists does not violate any applicable

Zoning Ordinance, building code, or any other state or 

federal law. 

[(Emphasis added).] 

Further, Holzworth admitted the contract of sale stated he would "obtain and 

pay for all inspections required by law," and he would pay up to $1,000 for a 

certificate of occupancy if required by the Township. The contract further 

included a provision that defendants had "a [sixty-]day inspection period to 

confirm that [their] proposed use of the [Property] in the same manner as 

[Holzworth wa]s in accordance with all [m]unicipal regulations." Holzworth 

testified he did not know if defendants ever checked with the Township to see 

if its regulations permitted them to operate a landscaping business on the 

Property. 

Zaccarino also testified at trial. He stated that when he offered to buy the 

Property, Holzworth "mentioned that he ha[d] a resolution that [went] with the 

[P]roperty." Accordingly, before finalizing the contract of sale, Zaccarino and 
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his attorney reviewed the resolution. Zaccarino testified he interpreted the 

resolution as permitting Holzworth "to run a landscape business out of [the

Property]," so Zaccarino concluded it would not "be an issue" for him to "use . . . 

the [P]roperty the way . . . Holzworth had been using it." Zaccarino also 

admitted he did not apply for a certificate of occupancy before the closing and 

did not receive one from Holzworth. 

Additionally, Zaccarino stated that in September 2018, he began operating

his landscaping business under the trade name, PMZ Landscaping. He testified 

he employed approximately thirteen to fifteen workers during the spring season 

and ran his business no differently than Holzworth had run his business for 

approximately forty years. But Zaccarino also stated he added concrete bins and 

other improvements to the Property after purchasing it, and employed more 

individuals than Holzworth did. 

Following rebuttal testimony from McGroarty and one of defendants' 

neighbors, the testimonial hearing concluded. On March 21, 2022, the 

municipal court judge heard summations from counsel before issuing his 

decision. The judge prefaced his findings and legal conclusions by stating he 

had "two decisions . . . to make," specifically, "whether [defendants'] use of the 

[P]roperty [wa]s in violation of the . . . [O]rdinance," and if so, "whether the 
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Township [wa]s estopped from asserting a zoning ordinance violation," 

considering Holzworth's prior use of the Property. As to the first inquiry, the 

judge found defendants guilty of the Ordinance violation, concluding that 

McGroarty credibly testified "with regard to his knowledge of the use of the 

[P]roperty," and that defendants' "use of the [P]roperty, . . . as a landscaping 

business[] [went] beyond the 'permitted use.'" The judge found "not only . . . 

Zaccarino, but also . . . Holzworth[,] testified . . . that the [P]roperty was . . . 

used to operate, among other things, . . . [a] landscaping business." 

Next, the judge found the remuneration Holzworth "stood to gain by the 

sale of the [P]roperty . . . definitely affect[ed] . . . Holzworth's . . . credibility." 

Additionally, the judge concluded Holzworth "testified inconsistently . . . at 

various points . . . during the trial, as to whether . . . he thought it was okay to 

run his landscaping business from this [P]roperty, as opposed to just storing . . . 

vehicles that would be used . . . for [his] landscaping business on the [P]roperty." 

Further, the judge expressed concern about "what was put into the contract [of 

sale]" between Zaccarino and Holzworth, finding the terms of the contract 

"seem[ed] to be put in just for th[e] purpose[ of] get[ting] around" the issues that 

ultimately had to be resolved in municipal court. The judge added, "I do[ no]t

believe that . . . [was] proper." 
9 A-0778-22

Lastly, after crediting McGroarty's testimony regarding when he

discovered the current use of the Property, the judge found "there [wa]s no basis 

for [defendants'] estoppel argument, as the State had no knowledge and did not 

permit the operation of a landscape business on the [P]roperty." Accordingly, 

the judge imposed a $500 fine plus court costs for defendants' Ordinance 

violation, and warned that if their violation persisted, he might impose 

additional fines "for each day . . . there [wa]s a continued violation." 

Defendants appealed from their conviction to the Law Division. On 

October 20, 2022, following his de novo review, Judge Ralph E. Amirata found 

defendants guilty of the Ordinance violation and imposed the same fine and 

court costs imposed by the municipal judge. In his accompanying oral opinion, 

Judge Amirata found the evidence, including testimony from Zaccarino, 

Holzworth, and McGroarty, showed the Property contained an office building 

and was used for conducting defendants' landscaping business. Judge Amirata 

also concluded defendants employed three or more workers at the Property and 

some employees left their personal vehicles at the Property when they performed 

landscaping duties offsite. 

Moreover, Judge Amirata found that when Holzworth appeared before the 

Board in 1979, the meeting's minutes showed "no use variance was being sought 
10 A-0778-22

and . . . Holzworth [did] not seek[] to use the [P]roperty for his landscaping 

business." Further, the judge observed that when Holzworth sold the Property 

to Zaccarino in 2018, "[i]n paragraph [thirteen] of the contract, . . . Holzworth 

represented to . . . defendant that the Property [wa]s [being] used as a residential 

single[-]family home, nursery[,] and landscape material and equipment storage 

facility[, as well as] agriculturally." The judge also found Holzworth "provided 

in the contract that to the best of his knowledge and belief, the [present use of 

the Property] d[id] not violate any applicable zoning ordinance." 

Next, Judge Amirata determined that after the 2018 contract was finalized, 

"neither . . . Holzworth[,] nor . . . defendant[s] ever sought a certificate of 

occupancy or a zoning permit to obtain a use variance allowing for commercial 

use" of the Property. The judge also found Zaccarino "admitted at trial that PMZ 

Landscaping is located at the . . . [P]roperty," and his "filings with the State," as 

well as "emails between . . . [Zaccarino] and the Township planner, . . . and [the] 

PMZ Landscaping website . . . were all entered into evidence," showing "PMZ 

Landscaping [wa]s located at the . . . [P]roperty." The judge added, "essentially 

every witness that testified on behalf of the State and . . . defendant[s] agreed 

that the . . . [P]roperty was being used in connection with PMZ Landscaping[,] 

which is owned and operated by [Zaccarino]." Based on these findings, the 
11 A-0778-22

judge concluded "the State . . . met its burden of proof [by] showing . . . 

defendant[s were] operating . . . PMZ . . . at the . . . [P]roperty," and the 

"commercial use [wa]s clearly contrary to the Township's land use ordinance [§] 

550-101D[,] which provide[d] that commercial uses are not permitted in [the] 

RR-A zone." 

Further, Judge Amirata rejected defendants' argument that their motion to 

dismiss should have been granted at the close of the State's case. The judge 

explained: 

The State certainly is entitled to the benefit of . . . 

all favorable inferences at the close of the State's 

case. . . . As previously discussed, . . . McGroarty 

testified . . . he visited the . . . [P]roperty on several 

occasions on different days and at different hours and 

observed multiple personal vehicles, large construction 

equipment, concrete material bins, and an office inside 

the building with three or more employees present. 

On this testimony and the inferences drawn 

therefrom, this [c]ourt finds . . . the testimony of . . . 

McGroarty did[,] in fact[,] satisfy the State's burden of 

proving defendant[s'] use of the . . . [P]roperty as 

nonconforming at the close of the State's case. 

Next, Judge Amirata noted that "[a]t trial and on this appeal[,] 

defendant[s] argue[d] that even if the State . . . met its burden of proof, the 

Township [wa]s nevertheless equitably estopped from asserting a violation of 

the land use ordinance." The judge rejected this contention, explaining: 
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The simple fact remains that neither . . . defendant[s] 

nor . . . Holzworth ever obtained a land use variance 

from a department or a representative of the Township 

with the authority to grant one. Accordingly, there was 

certainly no voluntary conduct [] which the 

defendant[s] could in good faith rely upon[,] such that 

the doctrine of equitable estoppel should apply. 

The [c]ourt finds that the Township is not 

estopped from asserting defendant[s] violated the . . . 

[O]rdinance. I also note when assessing . . . 

Holzworth's testimony[,] which the [municipal] court 

found lacking [in] credibility[,] . . . this [c]ourt, even 

giving deference to same, can see based upon the record 

why the [municipal c]ourt found [Holzworth's] 

credibility lacking. 

Continuing his analysis, Judge Amirata also found the 2018 contract of 

sale "le[ft] out the language that the [P]roperty [wa]s being used as a landscaping 

business" and, instead, "mirror[ed] the limited use that was granted to the 

[P]roperty in . . . 1979." Further, he concluded the terms of the 1979 resolution 

attached to the contract of sale militated against applying the doctrine of 

estoppel because the resolution stated the Property was "to be used as a nursery" 

and "for the limited use of the storage of equipment that would overlap between 

the nursery and the landscaping business." (Emphasis added). 

After Judge Amirata sentenced defendants, defense counsel asked for 

"clarification" regarding whether the judge "found . . . defendants guilty beyond 

a reasonable doubt." The judge responded: 
13 A-0778-22

I have. The burden of proof was agreed upon by all

parties that it is beyond a reasonable doubt[,] and no 

one has argued that it is any other burden of proof. And 

considering all the elements that were contained 

therein, I have found . . . the State . . . satisfied the 

elements [of] the [violation] beyond a reasonable 

doubt.

 Judge Amirata entered a conforming order the same day to reflect 

defendants' conviction and sentence. 

II.

On appeal, defendants raise the following arguments: 

POINT I 

THE STATE MUST PROVE THE ELEMENTS OF 

THIS OFFENSE, EVEN THOUGH IT IS AN 

ALLEGED VIOLATION OF A ZONING 

ORDINANCE, BEYOND A REASONABLE DOUBT. 

POINT II 

 

THE MOTION TO DISMISS AT THE CLOSE OF 

THE STATE'S CASE SHOULD HAVE BEEN 

GRANTED. 

POINT III 

THE PROPERTY IN QUESTION HAD RECEIVED 

APPROVAL FOR THE CONSTRUCTION OF A 5,000 

SQUARE-FOOT STORAGE BUILDING FOR THE 

PURPOSE OF STORING EQUIPMENT, 

MAINTAINING EQUIPMENT, AND STORAGE OF 

MATERIALS TO BE USED IN A LANDSCAPING 

BUSINESS. 
14 A-0778-22

POINT IV 

IN THE EVENT THAT IT IS DETERMINED THAT 

THE PLANNING BOARD, PURSUANT TO ITS 

DECISION IN 1979, MADE A MISTAKE, OR THAT 

SOMEHOW DEFENDANT[S] AND [THEIR] 

PREDECESSOR VIOLATED THE APPROVAL 

GRANTED IN 1979, THE DOCTRINE OF 

EQUITABLE ESTOPPEL SHOULD BE INVOKED. 

Because the "argument" set forth in Point I is simply a factual statement 

that was undisputed during the municipal court trial and de novo Law Division 

hearing, we need not address it. The balance of defendants' arguments lack 

merit. R. 2:11-3(e)(2). Accordingly, we affirm defendants' conviction and 

sentence, substantially for the reasons set forth in Judge Amirata's thoughtful 

and comprehensive oral opinion. We add the following brief comments. 

The scope of our review of a de novo conviction in the Law Division

following a municipal court appeal is "exceedingly narrow." State v. Locurto, 

157 N.J. 463, 470 (1999). "Our review is limited to determining whether there 

is sufficient credible evidence present in the record to support the findings of

the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375

N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-

62 (1964)). Therefore, we consider "whether the findings made could 
15 A-0778-22

reasonably have been reached on sufficient credible evidence present in the

record." State v. Stas, 212 N.J. 37, 49 (2012) (quoting Locurto, 157 N.J. at 471). 

"[T]he rule of deference is more compelling" when the municipal and Law 

Division judges make concurrent findings. Locurto, 157 N.J. at 474. "Under 

the two-court rule, appellate courts ordinarily should not undertake to alter 

concurrent findings of facts and credibility determinations made by two lower 

courts absent a very obvious and exceptional showing of error." Ibid. However, 

"[a] trial court's interpretation of the law and the legal consequences that flow 

from established facts are not entitled to any special deference." Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

"[M]unicipal court proceedings to prosecute violations of ordinances are

essentially criminal in nature . . . ." Twp. of Pennsauken v. Schad, 160 N.J. 156, 

171 (1999). Thus, as Judge Amirata acknowledged during the de novo hearing, 

the municipality must prove each element of the violation beyond a reasonable 

doubt. City of Trenton v. Calvary Apostolic Temple, Inc., 166 N.J. Super. 145, 

146 (App. Div. 1979). "[D]oubt engendered by the closeness of the question 

should be resolved in defendant's favor." Id. at 147. 

Here, it is undisputed the governing Ordinance states: 

RR-A: Rural Residential District. The purpose of this 

district is to recognize and preserve the predominant 
16 A-0778-22

rural, agricultural[,] and low[-]density residential 

pattern of development largely brought about by an 

absence of public sewer and water services. 

(1) Permitted principal uses shall be as follows: 

(a) Detached dwellings. 

(b) Farms and farm buildings. 

(c) Public uses. 

(d) Antennas for wireless 

telecommunication services. 

[§ 550-101D of the Township Code.] 

Thus, as McGroarty confirmed at trial, commercial uses, such as defendants' 

landscaping business, are not permitted in the RR-A zone, where the Property is 

located. Accordingly, based on the plain language of the Ordinance and the 

significant proofs adduced at trial regarding defendants' use of the Property for 

their landscaping business, we are convinced Judge Amirata correctly found the 

State proved beyond a reasonable doubt that defendants violated the Ordinance. 

 Similarly, we reject defendants' argument that their motion to dismiss 

should have been granted after the State rested. We review a trial court's 

decision to deny a motion for acquittal de novo. State v. Williams, 218 N.J. 

576, 593-94 (2014) (citing State v. Bunch, 180 N.J. 534, 548-49 (2004)). When 

a motion is made at the close of the State's case, the trial judge must deny the 
17 A-0778-22

motion if "viewing the State's evidence in its entirety, be that evidence direct or 

circumstantial, and giving the State the benefit of all" reasonable inferences, "a 

reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Reyes, 

50 N.J. 454, 458-59 (1967); see also State v. Jones, 242 N.J. 156, 168 (2020). 

Under Rule 3:18-1, a court "is not concerned with the worth, nature, or

extent (beyond a scintilla) of the evidence, but only with its existence, viewed 

most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. 

Div. 1977). "If the evidence satisfies that standard, the motion must be denied." 

State v. Spivey, 179 N.J. 229, 236 (2004). 

Governed by these standards, we are persuaded Judge Amirata properly 

considered the State's evidence at the conclusion of its case-in-chief—including 

McGroarty's testimony about his multiple inspections of the Property—and the

judge appropriately afforded the State the benefit of all reasonable inferences 

flowing from its proofs, consistent with the Reyes standard. Thus, we have no

reason to disturb the denial of defendants' motion to dismiss. 

 Finally, we disagree with defendants' contention that Judge Amirata erred 

in rejecting their equitable estoppel argument. "The essential principle of the 

policy of estoppel . . . is that one may, by voluntary conduct, be precluded from 

taking a course of action that would work injustice and wrong to one who with 
18 A-0778-22

good reason and in good faith has relied upon such conduct." Bonaventure Int'l, 

Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 436 (App. Div. 2002) 

(omission in original) (quoting Fraternal Ord. of Police v. Bd. of Trs., Police & 

Firemen's Ret. Sys., 340 N.J. Super. 473, 484-85 (App. Div. 2001)). The 

doctrine may be invoked against a municipality "where the interests of justice, 

morality[,] and common fairness clearly dictate that course." Id. at 436 (quoting 

Ranchlands Inc. v. Twp. of Stafford, 305 N.J. Super. 528, 538 (App. Div. 1997), 

aff'd, 156 N.J. 443 (1998)). However, the doctrine is "rarely invoked against a 

governmental entity, particularly when estoppel would interfere with essential 

government functions." Ranchlands, 305 N.J. Super. at 538 (quoting O'Malley 

v. Dep't of Energy, 109 N.J. 309, 316 (1987)). 

 "[A] party asserting equitable estoppel may rely upon 'conduct, inaction, 

representation of the actor, misrepresentation, silence, or omission.'" Ridge 

Chevrolet-Oldsmobile, Inc. v. Scarano, 238 N.J. Super. 149, 154 (App. Div. 

1990) (quoting Fairken Assoc. v. Hutchin, 223 N.J. Super. 274, 280 (Law Div. 

1987)). But "[p]rior tolerance of a use in violation of a zoning ordinance . . . 

will not estop the municipality from later enforcing the ordinance." Universal 

Holding Co. v. Twp. of N. Bergen, 55 N.J. Super. 103, 112 (App. Div. 1959); 
19 A-0778-22

see also E. Wind Realty, Ltd. v. Bd. of Adjustment, 218 N.J. Super. 412, 416-

17 (App. Div. 1987). 

Guided by these principles, we are satisfied Judge Amirata correctly found 

there was "no voluntary conduct" by the Township, " which . . . defendant[s] 

could in good faith rely upon[,] such that the doctrine of equitable estoppel 

should apply." 

To the extent we have not addressed defendants' remaining arguments, 

they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

 Affirmed.