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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.

358 N.J. Super. 327, 817 A.2d 988 (App. Div. 2003); March 18, 2003: A homeowner sought to expand the residential portion of a mixed use structure consisting of a residence and a real estate office. The homeowner applied for, and was denied, a building permit. The homeowner was advised to apply to the zoning board for a variance to expand the non-conforming use. Instead, the homeowner applied to the planning board for a structure variance. The planning board determined that the homeowner was seeking to expand a non-conforming use, which requires zoning board approval, and denied the application. The homeowner filed suit challenging the planning board’s decision and was denied relief. It then appealed unsuccessfully, claiming that the property had two separate and distinct uses: the residence, which constituted a conforming use under the zoning code; and the real estate office, which did not. He argued that, since he was attempting to expand only the conforming use, he was required to obtain only a variance for the structure. A structure variance would have required the homeowner to show that the expansion would promote the general welfare. For a use variance, the homeowner would have needed to prove that the expansion would not be detrimental to the public good and was consistent with the purpose and plan of the zoning ordinance. The lower court and the Appellate Division rejected the homeowner’s argument, holding that the conforming and non-conforming aspects of the property were integrated into a mixed or dual use. Expanding the residence would impact the commercial use by limiting the parking spaces available for the commercial portion. In addition, the residence and the offices were not completely separate structures, because there was access to the office through the residence and vice versa. Necessarily, any expansion of the residence would also expand the non-conforming business use and require the issuance of a variance.

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