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Dudley v. Township of Manchester

A-0716-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NON-CONFORMING USES — A land use board should have the opportunity to inquire into the appropriateness of an expansion of a non-conforming structure and to determine its impact on the municipality’s zoning plan and adjacent properties; therefore, even if a proposed expansion of a non-conforming structure does not exasperate the non-conformity, the land use board may take into consideration that the property is subject to a non-conformity.

A property owned sued a municipality seeking a declaration that the municipality could not deny him a zoning permit to construct an addition to his property where the denial was based on non-conformities unrelated to the addition. During the application process it was discovered that his property did not conform to setback and sideyard requirements, and that his driveway and garage did not conform to the zoning ordinance. The lot itself was conforming, and the proposed addition would not violate any ordinances.

The owner argued that since none of the non-conformities would be exacerbated by the proposed addition, the municipality’s zoning board of adjustment could not consider those non-conformities when deciding whether to issue a zoning permit. The lower court disagreed, holding that the non-conformities were not entitled to protection under N.J.S.A. 40:55D-68 because the owner never submitted an application to the board and had not proven that the non-conformities existed prior to the adoption of the current zoning ordinance. As a result, the lower court found that the property’s non-conformities were subject to the municipality issuing citations for zoning ordinance violation and could be reviewed in connection with the owner’s application for a zoning permit.

On the owner’s appeal, the Appellate Division affirmed, even though it noted that there is authority for the proposition that a variance is not necessary where the expansion of a non-conforming structure does not exacerbate the nonconformity. In this situation, however, it found that due to the number of non-conformities on the owner’s property, the owner needed to apply for a variance. According to the Court, a zoning board should have an opportunity to inquire into the appropriateness of the expansion of a non-conforming structure and to determine its impact on the municipality’s zoning plan and adjacent properties. In this case, the owner should have submitted a variance application prior to seeking relief from the court.


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