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DeSena v. Township of North Bergen

A-4952-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES; NON-CONFORMING USE—In considering issuance of a variance that would “legalize” a non-conforming use, a zoning board should give equitable consideration to the length of the non-conformity and any lack of harm to the surrounding neighborhood.

In 1984, a property owner purchased what appeared to be a three-family dwelling and continued that use. In 1996, “by virtue of a notice of violation, [he] learned that no certificate of occupancy had ever been issued for the third apartment and that the use of the property for a three-family dwelling was not a permitted use in the C-2 commercial zone in which it [was] situated.” He then sought a “d” variance and his application was denied. He then brought a suit against the township, but not against its board of adjustment. The trial judge denied the property owner’s motion to amend the complaint to add the board of adjustment, holding that he had sued the wrong party and that the board of adjustment was an indispensable party. The Appellate Division reversed.

Even though the zone in which the apartment was located did not permit three-family dwellings, the neighborhood was “predominantly being used for three-family dwellings.” In fact, fifteen of the thirty houses on the block were being so used, “albeit apparently illegally without approval.” All had been taxed as three-family houses. Of the thirteen houses on the same side of the street as building, nine had been converted to three-family dwellings.

With that in mind, the Appellate Division said: “[i]n light of the pervasive residential use being made of the neighborhood and the substantial non-compliance of the existing buildings with the zoning ordinance, both in the C-2 zone on the west side of Liberty Avenue and in the R-1 zone on the east side of Liberty Avenue, we perceive an important public interest which requires clarification.” In fact, the Court believed that it would be in the interest of the large number of others on the same street “whose property is being put to a similar non-conforming use” to answer this particular property owner’s question. To the Court, “[a]lthough raised in the context of a request for a variance, [the property owner was seeking] a formal recognition of a long standing non-conforming use which does not predate the adoption of the relevant zoning code restrictions.” It then proceeded to note some of the competing considerations. “Grant of the variance will change nothing. It would not cause any increase in traffic or change in parking requirements. It would merely preserve the existing neighborhood scheme.” On the other hand, “[n]either the fact that [the municipality] has acquiesced for many years in the improper use of the property nor the actions of its taxing officials in taxing the improvements give rise to any estoppel.” That the municipality failed to enforce its zoning ordinance was of no moment. “A property owner cannot, by unilateral action, secure a valid nonconforming use based on a violation of the zoning ordinance nor can an estoppel arise by reason of reliance on the part of the property owner or of acquiescence and laches by the municipality.” It is also irrelevant that the property has been taxed as three-family dwelling. Taxing officials are not concerned with zoning matters.

Therefore, “[i]n order to obtain the variance he seeks, [the property owner was] required to show special reasons for the granting of the relief as well as satisfying the negative criteria.” Also, it may be that the situation confronting the property owner “gives rise to equitable considerations that justify recognition.” In fact, “[t]he special reason requirement might also be satisfied by the fact the granting of the variances would promote a proper zoning purpose, the preservation of the present and actual character of the neighborhood.” To the Court, it was important that this was not a new use, but really an application to continue the use that had existed for at least twenty years. It was also important that the use was not out of keeping with the existing neighborhood. With all of that in mind, the Court permitted amendment of the property owner’s complaint and remanded the matter to the lower court for further proceedings consistent with the Appellate Division’s opinion.

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