Case Law Summaries

Funeral Home Management, Inc. v. Borough of Oradell

ZONING; NOTICE—Although a notice of planning board approval did not, as required, state that a copy of the resolution was on file with the clerk, a complainant who has actually received a copy cannot file an appeal more than 45 days after receiving its copy.

• Opinion Date: June 26, 2003
• Real Property Law

Julika, Inc. v. Surati

ZONING; NOTICE—Not every proposed off-tract improvement requires notice to property owners within 200 feet of the improvement.

• Opinion Date: November 7, 2003
• Real Property Law

Isko v. Board of Adjustment of the Borough of Mendham

ZONING; NON-CONFORMING USES; ESTOPPEL—Where a building permit is issued in error and an addition to a house built because that permit is nonconforming, a municipality can be estopped from holding the nonconformance against the owner in a later application for a variance.

• Opinion Date: June 2, 2003
• Real Property Law

Rybak v. The Zoning Board of Adjustment of the City of Garfield

ZONING; NON-CONFORMING USES; ABANDONMENT—Abandonment of a pre-existing, non-conforming use require a subjective showing of intent, but such uses can also be terminated by reason of discontinuance which can be measured by an objective test.

• Opinion Date: September 19, 2003
• Real Property Law

O’Bom Pastor, Inc. v. Planning Board of Adjustment of the Borough of Cliffside Park

ZONING; NON-CONFORMING USES—It is not the actual use of a facility that determines whether use of a prior nonconforming property has been intensified, but rather the scope and extent of the legally permitted use.

• Opinion Date: May 22, 2003
• Real Property Law

Short Hills Neighborhood Assoc. Zoning Committee, Inc. v. Fair Share Housing Development, Inc.

ZONING; MOUNT LAUREL—Where a Mount Laurel compliance order calls for aggregating an entire development for density calculation purposes, a developer cannot be required to meet the municipality’s maximum density standards as applied only to the actual part of the land to be developed.

• Opinion Date: April 14, 2003
• Real Property Law

Conselice v. Borough of Seaside Park

ZONING; MIXED-USE; NON-CONFORMING USES—When an owner has a mixed use property where one of the uses is non-conforming, and the owner’s request for expansion of the permitted use has an impact on the non-conforming use, expansion of the permitted use requires a variance.

• Opinion Date: March 18, 2003
• Real Property Law

Saddle Mountain, L.P. v. Borough of Ringwood

ZONING; MINING; NON-CONFORMING USES—Under the diminishing asset doctrine, although a quarry may expand its area of excavation without being be considered to have violated the prohibition against expanding a prior, non-conforming use, it must first prove that it had an objective manifestation of its intention to mine the expanded area before the use became non-conforming.

• Opinion Date: May 23, 2003
• Real Property Law

Desai v. Board of Adjustment of the Town of Phillipsburg

ZONING; INVERSE CONDEMNATION—A court can offer a municipality the choice of granting a property owner’s use variance application or buying the property, in order to avoid paying damages on an inverse condemnation claim arising out of an earlier denial of the owner’s use variance application.

• Opinion Date: April 22, 2003
• Real Property Law

Lamart Corporation v. Mayor and Municipal Council of the City of Clifton

ZONING; GOVERNING BODIES—Although a municipality’s governing body can hear appeals of a zoning board’s grant of a use variance, it must base its decision on credible testimony and cannot act out of “passion.”

• Opinion Date: August 4, 2003
• Real Property Law