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Hazelcrest Manor, Inc. v. The Zoning Board of Adjustment of the Township of Bloomfield

A-4070-05T5 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; PRIOR NON-CONFORMING USES — A property owner has the burden to prove that its proposed change in use to a prior non-conforming use would be to one that was substantially similar to the pre-existing non-conforming use.

A property owner sought a certificate of nonconformity in order to operate a residential health care facility (RHCF) in a residential neighborhood zoned for single family housing. The zoning board turned down the request. Its decision was reversed by a lower court which found that the property was certified as a pre-existing, non-conforming use for the purpose of operating a nursing home boarding home, or RHCF. On appeal, the Appellate Division partly affirmed the lower court’s decision, partly reversed the decision, and remanded the matter back to lower court for further determinations.

Ten years earlier, the board had granted a variance allowing the use at the property to be expanded to operate as a nonconforming nursing home. Since that time, the property had been used as a RHCF, and later as a boarding home. It found that the lower court erroneously determined that the property owner had a vested right to use the property as a nursing home, boarding home, or a RHCP and reversed that part of the lower court’s decision, pointing out that the property owner failed to meet its burden of proving that these subsequent uses were substantially similar to the permissible use as a nursing home, which was a necessary condition for permission to continue operating the pre-existing nonconforming use. The matter was remanded to the board to allow the property owner to present supporting evidence that its proposed use as a RHCF was substantially similar to that of a nursing home. The Court also upheld the lower court’s decision that the previously granted nonconforming use variance was still binding.

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