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Berkeley Square Association, Inc. v. Zoning Board of Adjustment of the City of Trenton

410 N.J. Super. 255, 981 A.2d 127 (App. Div. 2009)

ZONING; ABANDONMENT — A zoning board has the power to decide whether a property has been abandoned and a municipal ordinance that deems a prior, non-conforming use as abandoned after eighteen months of a continuous non-use is only one factor to consider.

A property owner submitted plans to, and sought permission from, a municipal zoning officer to rehabilitate a twenty-unit apartment building. The zoning officer issued the permits, finding that although the property was located within a zone that only permitted single-family dwellings, the building was a pre-existing non-conforming use. A neighborhood association appealed the decision to the zoning board of adjustment and sought to overturn the zoning officer’s finding that the building was a pre-existing non-conforming use. The association also claimed that the non-conforming use already had been abandoned. The zoning board conducted a hearing on the association’s challenge. As the result of a tie vote, the zoning officer’s determination was upheld. The association then filed suit.

The lower court granted the property owner’s motion for summary judgement and dismissed the complaint. The association appealed. The Appellate Division remanded the matter back to the lower court. The property had been sold several times, had not been maintained, and had begun to deteriorate. At one time, the property was sold to one company that placed signs on the property indicating that it planned to rehabilitate the property, but did nothing and the tenants moved out. The property was then sold at a tax sale to another owner who paid the back taxes and made some repairs to the property, including replacing the roof and removing the prior tenant’s garbage. That owner then sold the property to the current owner who applied for the permits to rehabilitate.

The zoning board found that even though the property had been vacant since 1995, and had fallen into disrepair, there was insufficient evidence that the past and present owners of the property intended to abandon its use as a twenty-unit apartment building. The lower court found that the zoning board could have decided either way on the issue of abandonment and that a municipal ordinance that deems uses abandoned after 18 months of continuous non-use was a factor to consider, but that the zoning board acted reasonably. The lower court also found that the association challenging the zoning officer’s issuance of the permits had the burden of proving the abandonment of the non-conforming use and failed to do so since the board vote was tied. The association argued that the lower court improperly gave it the burden of proof to show that the non-conforming use was abandoned, as opposed to requiring the property owner to prove that the non-conforming use was not abandoned. The Court noted that prevailing public policy regarding the abandonment of nonconforming uses is consistent with the belief that property rights should not be unjustly extinguished. Therefore, it found it proper that a party objecting to the continuation of the non-conforming use should have the obligation of going forward on the abandonment issue before an owner loses that property right. Even though the property owner may have the ultimate burden of proof on the issue of the non-conforming use and the non-abandonment of that use, the association that objected to the continuation of the non-conforming use had to initially come forward with sufficient evidence of abandonment before the owner would be required to meet its burden of proof. In this case, the Court found that the association had satisfied its burden of demonstrating the possibility that the non-conforming use was abandoned, therefore the lower court should have determined whether the property owner satisfied its burden of proof that the non-conforming use had not been abandoned.

For those reasons, the Court remanded the case to the lower court to determine whether the property owner had proven that the non-conforming use had not been abandoned. It further directed the parties to address the impact of the fact that the rehabilitation had already been completed and the building was now occupied.


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