State of New Jersey v. Joseph Zaccarino and Mjz, LLC ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-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
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']
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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 single-
family 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."
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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
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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
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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:
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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.
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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
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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
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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
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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
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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);
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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.
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