DON ROGERS, INC. VS. TOWNSHIP OF FAIRFIELD PLANNING/ZONING BOARD (L-0440-19, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-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/Intervenor-
Appellant.

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.
 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 pre-

existing 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.

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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 pre-

existing 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 pre-

existing 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. 40:55D-

68; 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.

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