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Ferraro v. Zoning Board of the Borough of Keansburg

321 N.J. Super. 288, 728 A.2d 863 (App. Div. 1999)

ZONING; NON-CONFORMING USES—The issue of whether a non-conforming use has been abandoned cannot arise until the burden of establishing the existence of a valid non-conforming use has been met.

A local code enforcement officer refused to issue a building permit for interior construction work in a small, unoccupied structure located in a single family residential zone. The refusal was based upon a conclusion that the structure was “non-conforming” as to use and as to bulk and off-street requirements, and that it was deemed an abandoned non-conforming use. The property owner applied for a hearing on the abandonment issue. The evidence in that hearing tended to show that the exterior siding had been repaired and replaced within the prior three or four years and that the roof was in satisfactory condition, but that there were no walls, floors, utilities or interior plumbing. There was no showing that the structure had ever been occupied. The board (and the lower court) imposed the burden on the property owner to establish non-abandonment. Each made it the property owner’s initial burden to establish existence of lawful residential occupancy as of the commencement of the zoning regulation as well as its continuation afterward. The Appellate Division affirmed, agreeing that the issue of whether a non-conforming use has been abandoned cannot arise until the burden of establishing existence of a valid non-conforming use has been met. Even had a non-conforming use been shown, the Appellate Division was satisfied from its review that nothing in the record contradicted a finding of abandonment. Consequently, given the absence of any evidence of continuous use, whether or not the municipality’s ordinance establishing the cessation of a non-conforming use for at least a year was prima facie evidence of abandonment did not have to be considered.


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