SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4124-19

DON ROGERS, INC. and

K & E HOLDING, I, LLC,

Plaintiffs-Respondents,

v.

TOWNSHIP OF FAIRFIELD

PLANNING/ZONING BOARD,

Defendant,

and

SOUTH STATE, INC., 

Defendant/IntervenorAppellant.

Argued October 19, 2021 – Decided December 7, 2021

Before Judges Fisher, Currier and DeAlmeida. 

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Docket No. L-0440-19.

NOT FOR PUBLICATION WITHOUT THE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.
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Colin G. Bell argued the cause for appellant (Hankin 

Sandman Palladino Weintrob & Bell, attorneys; Colin 

G. Bell, on the briefs).

Robert S. Baranowski, Jr. argued the cause for 

respondents (Hyland Levin Shapiro LLP, attorneys; 

Robert S. Baranowski, Jr. and Megan Knowlton Balne, 

on the brief).

PER CURIAM

Plaintiff1 has operated a sand mining operation in the Township of 

Fairfield since 1968. South State, Inc. (SSI) operates a competing business on 

a lot adjoining plaintiff's property. 

In April 1987, the Township issued plaintiff a permit to mine a portion of 

its property, denoted on the tax map as lot thirteen and a portion of lot fifteen

(old lot fifteen). Shortly thereafter, the Township altered its tax map, prompting 

plaintiff to file a new deed that altered lot fifteen's property line (new lot fifteen). 

Then, in 1990, the Township enacted a zoning ordinance entitled "The 

1990 Amended Fairfield Township Resource Extraction Ordinance" (1990 

Ordinance), which prohibited all mining operations except for "[a]ny lawful 

existing resource extraction operation[s] . . . ." This term was defined as: 

[A] lot or lots which was, at the time of the adoption of 

the original Fairfield Township Mining Ordinance a 

1 As the two entities are sister companies with the same principals, we refer to 

them collectively as "plaintiff."
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valid pre-existing use . . . and all other mines in 

Fairfield Township which validly pre-existed the 

adoption of the original Township Mining Ordinance in 

June of 1969. Existing operation shall include the 

entire tract of land on which the operator is validly 

operating. 

The 1990 Ordinance established a comprehensive regulatory scheme for all 

existing mines, requiring them to—among other things—acquire and renew a 

permit to mine every two years and comply with certain performance guarantees. 

After the Township denied plaintiff's renewal application in 1995, 

plaintiff filed suit seeking a determination that its mining operations on lots 

thirteen and fifteen were valid pre-existing uses as defined under the 1990 

Ordinance and an order for the issuance of a permit. 

In a 2002 order, the court agreed with the Fairfield Township Joint 

Planning and Zoning Board (Board) that new lot fifteen was never licensed for 

mining and therefore could not be afforded the status of a pre-existing 

nonconforming use. However, lot thirteen and old lot fifteen were entitled to 

pre-existing nonconforming use status because they "w[ere] used for mining as 

of June 30, 1969, the effective date of the original mining ordinance." 

Although the Law Division's opinion instructed the Township's counsel to 

submit "an appropriate order" denying the renewal of DRI's mining permit as to 
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new lot fifteen, no order was submitted. Instead, the litigation was resolved 

under a consent order entered in November 2006. 

In the consent order, the Township agreed to issue a five-year mining 

permit deemed to satisfy "any and all . . . ordinances and regulations" and 

allowed plaintiff to resume mining operations on lot thirteen and all of lot 

fifteen. Plaintiff agreed to build a six-foot-tall fence around certain portions of 

its property and to pay the $6500 fee. Moreover, upon the expiration of its 

permit, plaintiff did not have to submit further site plan maps, but instead could 

"simply submit a map showing the area proposed to be mined." 

Neither party complied with its obligations. The Township did not issue 

plaintiff a mining permit. Plaintiff did not construct the fence or pay the fee. 

Nevertheless, plaintiff continued mining operations until it was cited by 

the Township's code enforcement officer in November 2013 for failing to have 

the proper permit. After plaintiff's counsel produced a copy of the consent order, 

the officer withdrew the citation. But no permit was issued. In that same month, 

the Township ordered and received sand, gravel, and topsoil from plaintiff. 

In 2015, the Township enacted another new zoning ordinance regulating 

mining activities, entitled the "Land Mining, Earth and Resource Extraction 

Operations Ordinance." (2015 Ordinance). The ordinance stated that "all 
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resource extraction operations are now prohibited throughout the Township . . .

except for Existing Resource Extraction Operations which may be continued 

subject to the requirements of this ordinance." An existing Resource Extraction 

Operation was defined in section 13-8-2 as: 

A lot or lots which are, at the time of adoption of this 

Article, being extracted as part of the regular business 

of the permittee, and shall include the entire tract of 

land on which the permittee has conducted, without 

abandoning, Resource Extraction Operations prior to 

2006. Adjacent and/or contiguous Lots not part of the 

lands on which Resource Extraction Operations were 

conducted. 

The 2015 Ordinance also required entities renewing their permit to submit 

an application to the Board with—among other items—a statement of the 

equipment to be used, a reclamation plan, and an environmental impact 

statement. However, the ordinance empowered the Board to "waive any section 

. . . in whole or in part with the exception of" the environmental impact statement

upon "good cause shown . . . ." 

Thereafter, in September 2018, the Township issued plaintiff a notice of 

violation for operating its business without a permit. Plaintiff's counsel 

responded in a letter to the Township, stating that while it "is clear from the 

[c]onsent [o]rder that [plaintiff] is entitled to a five-year permit/license," the 
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Township "never issued" the license. Counsel requested the Township "kindly 

arrange for the issuance of the permit . . . ." 

The Township reacted by filing a verified complaint in the Chancery 

Division, alleging plaintiff had violated the consent order and requesting the 

court enjoin plaintiff from any further mining operations. Plaintiff 

counterclaimed and moved for a judgment declaring it had the right to continue 

its mining operation in accordance with the consent order. 

The court denied both applications, finding no irreparable harm, and 

directed plaintiff to submit a mining permit application to the Board in 

accordance with the 2015 Ordinance. 

Plaintiff complied with the court's instruction and submitted a permit 

application with the Board for lots thirteen and fifteen in February 2019. 

Following two days of hearings, during which SSI opposed the application, the 

Board declared plaintiff's application complete. However, the Board requested 

plaintiff supply it with additional information and rescheduled a vote on the 

application until a future meeting.

Because SSI asserted plaintiff needed to obtain a use variance for lot 

fifteen, when the second hearing began, plaintiff advised the Board they had 

published and served notice of their request for a use variance, in the event the 
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Board deemed it necessary. In response to an additional allegation by SSI that 

plaintiff had abandoned its mining operations, plaintiff produced a summary of 

the mining activity conducted on its property for the prior five years. It also 

produced mine registration applications to and certificates received from the 

New Jersey Department of Labor. 

Plaintiff's witnesses explained to the Board how they had revised its plans 

to address the Board's concerns expressed during the first hearing and how it 

satisfied the criteria for a use variance. Plaintiff also indicated it would 

construct the fence and pay the $6500 fee as a condition of approval. 

SSI again opposed the application. The Board voted to deny the 

application. The subsequent resolution did not include any reasons for the 

denial.

Plaintiff filed a complaint in lieu of prerogative writs appealing the 

Board's decision. SSI moved to intervene and to assert a counterclaim for a 

declaratory judgment that the consent order was illegal, ultra vires, and void ab 

initio because it constituted contract zoning. The trial court granted SSI's 

motion. 

Thereafter, the parties consented to a limited remand to allow the Board 

to adopt a resolution setting forth its findings and conclusions. In an amended 
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resolution, the Board again denied plaintiff's application. The resolution stated 

the application "was denied because [plaintiff] needed a use variance even 

though the argument is clearly a pre-existing use," and plaintiff "did not apply 

for a D-Variance." In addition, the Board cited nine reasons for its denial, 

including that plaintiff had failed to construct a fence and pay the $6500 fee 

required under the consent order which showed "a lack of moral character." 

After a bench trial, the trial judge issued an oral decision and a 

corresponding order of judgment on June 2, 2020. In the order, the judge granted 

plaintiff the sought relief, reversing the Board's denial of the permit and finding: 

(1) the 2006 consent order was "valid and binding"; and (2) plaintiff's mining 

operations constituted "a pre-existing, non-conforming use that meets the 

definition of 'existing resource extraction operation'" under the Township's code. 

Therefore, the judge directed the Board to review plaintiff's application under 

the 2015 ordinance. In conducting its review, the judge advised the Board it 

could require certain conditions as a prerequisite to issuing the permit. 

After SSI appealed the decision, it learned that the transcript of the oral 

decision had been lost.

2

 This court ordered a limited remand under Rule 2:5-

3(f) to permit the judge to issue a statement of reasons supporting the order of 

2 The Board did not appeal from the trial court's order.
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judgment. In the interim, the Board recommended the Township issue a permit 

to plaintiff, which it did in August 2020. 

On November 3, 2020, the judge issued a comprehensive written 

statement of reasons, concluding the Board's decision to deny the permit was 

"arbitrary, capricious and unreasonable." The judge found plaintiff 

demonstrated its mining operation constituted a pre-existing nonconforming use 

because it "was a lawful use at the time the zoning ordinance was changed, and 

there has been continuity of use since that time." He relied on Uncle v. New 

Jersey Pinelands Comm'n, 275 N.J. Super. 82, 90 (App. Div. 1994) in noting

that "the statutory protection of a nonconforming use 'must be given even if the 

owner had failed to secure a license required for the use.'" 

The judge further found that the mining operation was not abandoned

because "there was no intent to abandon the Property, and no overt act or failure 

to act that would demonstrate abandonment ha[d] occurred" given "[p]laintiff's 

continuous operation . . . ." 

The judge also addressed whether the Board's decision to deny plaintiff's 

permit application for the reasons provided in the amended resolution was 

"arbitrary, capricious, or unreasonable." He found the Board acted arbitrarily in 
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denying plaintiff's application for a number of the cited reasons because the 

2015 Ordinance did not require the items denoted in the resolution. 

The judge further found the Board acted arbitrarily in denying plaintiff's 

application for failing to comply with the terms of the 2006 consent order when 

it neither built a fence nor paid the $6500 fee. Those conditions were not 

required under the 2015 Ordinance and in its application plaintiff agreed to build 

the fence and pay the fee. The judge stated this "eliminates this issue in the 

present case and does not constitute grounds for denial of the permit as a preexisting nonconforming use", especially because neither party complied with the 

2006 Consent Order. Ibid.

The court concluded:

Ultimately, the issue in this case is not whether 

[plaintiff] met the requirements for a use variance, but 

whether [plaintiff] is in compliance with the [2015] 

Ordinance. Having been found to be a pre-existing 

nonconforming use that was never abandoned, 

[plaintiff] does not require a use variance. While there 

was noncompliance on both sides regarding the 2006 

Consent Order, the salient point here is that [plaintiff]

was never issued a mining permit, and thus could never 

renew said permit. As no permit was issued and 

[plaintiff] is a pre-existing nonconforming use that 

complies with [the 2015 Ordinance], [the] Board's 

denial of the application was, for the reasons stated 

above, arbitrary, capricious, and unreasonable. 
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On appeal, SSI asserts the court erred in: (1) relying on the consent order 

to make its decision as the order constitutes illegal ultra vires contract zoning; 

(2) finding plaintiff established a valid pre-existing nonconforming use; and (3) 

finding the Board's decision was arbitrary, capricious, and unreasonable.

Our review is governed by the same standard used by the trial court. See

Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 

389, 433-34 (App. Div. 2009) (citations omitted). Therefore, we are limited to 

determining whether the Board could reasonably have reached its decision. See

Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987) (citing Kramer v. Bd. of 

Adjustment, Sea Girt, 45 N.J. 268, 285 (1965)). 

"Ordinarily, when a party challenges a . . . board's decision through an 

action in lieu of prerogative writs, the . . . board's decision is entitled to 

deference." Kane Props., LLC v. Hoboken, 214 N.J. 199, 229 (2013). We, 

therefore, defer to a planning board's decision and reverse only if its action was 

arbitrary, capricious, or unreasonable. See Zilinsky v. Zoning Bd. of 

Adjustment of Borough of Verona, 105 N.J. 363, 368 (1987). However, where 

the issue on appeal involves a purely legal question, we afford no special 

deference to the trial court's or the planning board's decision and must determine 

if the board understood and applied the law correctly. See D. Lobi Enters., Inc. 
12 A-4124-19

v. Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 351 

(App. Div. 2009).

As stated, SSI contends the trial court erred in relying on the 2006 consent 

order because the order "granted [plaintiff] a mining permit by contract" and 

exempted plaintiff from the application and approval requirements for any future 

renewals of the mining license as required under the 2015 ordinance. We 

disagree.

The consent order did not rezone plaintiff's property. Rather, it 

recognized that plaintiff's mining operations on lots thirteen and fifteen were 

entitled to pre-existing nonconforming use status—a conclusion the Law 

Division reached in its 2002 opinion. Furthermore, no permit was ever issued 

to plaintiff under the terms of the consent order.

When applying for a new permit in 2019, plaintiff did not rely on the 

consent order. It presented expert testimony and other evidence to demonstrate 

compliance with the 2015 Ordinance. 

It is also clear that the trial court, in reversing the Board's decision, did 

not rely solely on the consent order. Instead, the court analyzed whether 

plaintiff qualified as an existing resource extraction operation as defined in the 

2015 Ordinance. In determining plaintiff met the definition, the court 
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considered the presented evidence, including: the fact that plaintiff had mined 

continuously on its property since 1968, had obtained a mining permit in 1987 

for lots thirteen and fifteen, and had produced evidence showing its output at the 

mine from 2013 to 2018, which included a sale of sand to the Township in 2013. 

Further, the court directed the Board on remand to consider plaintiff's 

application under the terms of the 2015 Ordinance—not the 2006 consent order. 

The court instructed the Board to include various conditions for approval, 

including "[a]ny other conditions expressly related to compliance with" the 2015 

Ordinance. Therefore, neither plaintiff nor the court relied on the consent order 

to circumvent the 2015 Ordinance requirements. 

SSI contends the trial court erred in finding plaintiff qualified for preexisting nonconforming use status and met the definition of existing resource 

extraction operation under the 2015 Ordinance. SSI reads the Law Division's 

2002 opinion to state that mining was not a pre-existing nonconforming use on 

lot fifteen. And, SSI asserts, even if the status was correct, plaintiff later lost 

the qualification because it never obtained a mining permit for its operation. We 

are unconvinced. 

The latter argument has no merit. Plaintiff was issued a permit to mine 

on lots thirteen and then-fifteen in 1987. 
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In turning to the status of the operation, we must consider the applicable 

statute. Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -92, 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 thereof." N.J.S.A. 

40:55D-68.

In its 2002 decision, the Law Division found that mining was a preexisting nonconforming use on lot thirteen and the old lot fifteen. Therefore, 

the trial court here did not err in finding that mining on lots thirteen and fifteen 

was entitled to protection as a pre-existing nonconforming use. 

Plaintiff presented ample evidence showing its mining operations were 

taking place long before the passage of the 1990 Ordinance. Plaintiff also 

presented proofs of its continuing operations, including the Township's purchase 

of various sands in 2013 and a summary of its output from 2013 to 2018. We 
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are satisfied plaintiff established "the existence of a non-conforming use as of 

the commencement of the changed zoning regulation and its continuation 

afterward." S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of 

Stratford, 373 N.J. Super. 603, 613 (App. Div. 2004) (citing N.J.S.A. 40:55D68; Ferraro v. Zoning Bd. of Keansburg, 321 N.J. Super. 288, 291 (App. Div. 

1999)). 

For the same reasons, plaintiff meets the definition of existing resource 

extraction operation under the 2015 Ordinance. It was lawfully operating a 

mining operation at the time the 2015 Ordinance was adopted and had done so 

long before 2006. 

In light of the court's conclusion that the mining operation qualified as a 

pre-existing nonconforming use, it followed that the Board's denial of the 

mining permit on that basis was arbitrary, capricious and unreasonable.

Affirmed.