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Colligan v. Howell Township Zoning Board of Adjustment

A-1951-08T1 and A-2103-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; PRIOR NON-CONFORMING USES — Mere non-use of a site does not constitute abandonment of a prior non-conforming use and there must be evidence of an actual intention to abandon the use.

A property owner had received approval to construct a building on its property for the purpose of running a wholesale business, consisting of egg processing and distribution. That use was permitted under the applicable zoning at the time. Trucks would enter and leave the property on a daily basis. After a fire, the owner limited his business to distribution. Large vehicles continued to go to and from the property every day. The business operated on weekdays and on Saturdays.

The owner eventually sold its business, but retained the property. The new business processed and distributed meats. Trucks continued to come and go. After the owner of that business died, the landowner rented the property to a food company that distributed cheese and paté. On a daily basis, four or five tractor trailers stopped at the building during the company’s operating hours. Vehicles going to the rear of the building, where trailers were stored and a maintenance building was located, would have to use a driveway that went through a portion of the property that had been sold to an adjacent landowner. Eventually, a watermelon distributor set up operations on the property, which, by that time, was zoned for agricultural use.

According to the watermelon distributor, it was not advised that the property could only be used for limited purposes when it was purchased. The distributor also maintained that the municipality was notified of its intended use of the property when it submitted an application for a certificate of occupancy. The business was open on weekdays and for a half-day on Saturday, and during its busier summer season, five or six tractor trailers came on the property every day. the distributor applied to the municipal zoning board for an interpretation that its use was a pre-existing nonconforming commercial use, or alternatively for a variance that would allow the business to continue operations.

The board held seven public meetings. Testimony included the distributor’s intention to remove the encroaching driveway from the neighboring property, and its intention to make improvements to accommodate the removal of rotted watermelons from the property. An expert for one adjacent landowner testified that the owner’s intention to abandon a prior nonconforming use had to be presumed because the cheese distributor had ceased operations at the property for nineteen months. Another adjacent neighbor personally testified that the distributor’s use of the property had intensified the volume of deliveries and days of operation.

The board approved the remediation of the encroaching driveway, and determined the use of the property was a pre-existing, nonconforming use. The board did not agree the site was abandoned, but, rather, had continued as a commercial food distribution facility. The board said that mere non-use of a site does not constitute abandonment, and there was no evidence submitted which supported the proposition that the prior businesses on the property intended to abandon the use that the building was designed for. The board also approved any required variances, as the site improvements would serve as an upgrade.

Two different neighboring landowners filed suit to challenge the board’s decision. The lower court affirmed the board’s decision and dismissed the consolidated complaints, finding that the facts and law supported the board’s determination that the prior nonconforming commercial use had not been abandoned. It also held that the board’s decision to grant certain variances was not arbitrary, capricious or unreasonable.

Both neighboring landowners filed separate appeals, but the Appellate Division affirmed, ruling that significant evidence supported the board’s decision that there was a prior nonconforming commercial use over an extended period of time, and the distributor’s operations were substantially consistent with the prior use. The Court approved the board’s and lower court’s decisions that even if there was a hiatus in the nonconforming use during an interval between tenants, it would not have constituted abandonment. It also found the board was correct to interpret the record that the distributor’s use was not an intensification requiring a variance, but was substantially consistent with the prior uses.

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