Cornell v. Zoning Board of Adjustment of the Township of Mount Olive

A-7390-97T1 (N.J. Super. App. Div. 2000) (Unpublished)
  • Opinion Date: January 7, 2000

ZONING; PRE-EXISTING USE—A zoning board is not required to give weight to the existence of an invalid prior nonconforming use.

Two homeowners ran a heavy construction equipment leasing business from within a home located in a residential zone. They owned a separate, largely undeveloped lot across the street in the same residential zone. They decided to erect a communications tower on that lot to facilitate two-way radio communications with their delivery trucks. A construction permit was issued, but no variance was sought. A year after construction, they began leasing space on the tower for other antennas. About ten years later, the homeowners sold the lot with the house on it and their rental equipment leasing business ceased. The tower, however, remained and continued to function as a communications link for paging companies. The following year, the former homeowners were notified that the tower was in violation of the zoning ordinance. They then applied for height and use variances. At that time, there were twelve or thirteen commercial antennas on the tower in addition to the owner’s inactive antenna. After three public hearings, the zoning board voted to deny the requested variances. The board concluded that the original construction permit for the tower was erroneously issued and that a variance should have been sought prior to its actual construction. Further, now that the tower was no longer used for its original purpose, the board felt that its use should not continue as a commercial structure in a residential zone. On appeal to the Law Division, that court, recognizing the relatively narrow scope of review to be applied to an action in lieu of a prerogative writ, found that the board’s decision was not arbitrary, capricious or unreasonable. Specifically, the lower court was not willing to find that communications facilities are inherently beneficial uses. It noted the absence of persuasive testimony that the applicants’ site was particularly useful or appropriate for telecommunications, in terms of reasonable alternatives or their relationship to existing networks. Although acknowledging that the applicant’s site was certainly useful to the commercial entities using the existing tower, the lower court held that it only was useful to them because the structure preexisted the need. In addition, the lower court considered, but ultimately rejected, the idea that the zoning board should have given weight to the fact that the tower was already in existence with antennas on it. “I think that the tower simply does not have the status of a valid, non conforming use, and that there is no legitimate zoning goal to be achieved by preserving it or protecting it. And, I, therefore, end up agreeing with the board, and certainly being of the view that I should not compel the board to afford any weight to the fact that the tower exists.” The Appellate Division agreed with the lower court, especially that “the tower was not properly erected in the first instance.” Even if it were, its function was supposedly incidental to a home occupation in a residential zone. That incidental use no longer existed, and the only proposed purpose was the perpetuation of a commercial use. “As the Board indicated, there were other locations within the municipality where a tower of this nature is permitted. Although the tower now sits in a primarily rural area, development is inevitable. The Board cannot be faulted for protecting the aesthetic integrity of a residential zone.”