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Hennessey v. Borough of Belmar

A-5446-99T2 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; SEASONAL USE—Winterizing a preexisting, nonconforming summer rental apartment constitutes an impermissible expansion of its use.

A homeowner had a house and a separate structure, consisting of a garage with an apartment above it, on its land. The property was located within a single-family residential zone and the garage apartment was a preexisting, non-conforming use. The property owner sought to convert the garage to a family room and its application was denied. It then applied for “a use variance to expand a non-conforming use” by converting the garage into a living room “and making lighting, plumbing, and electrical improvements within the structure or, alternatively, by installing heat in the existing garage apartment.” After a hearing, the board denied the relief essentially because it felt that the proposed reconstruction and, “in effect, winterizing of the rear garage apartment would have a negative impact upon the immediately adjoining residential properties, which [were] not so developed, to permit more than one principal residential structure on a single lot, in a residential zone.” Further, the board believed that the pre-existing, nonconforming garage apartment could continue in place, but could not be expanded and that the proposed “expansion and conversion to a full-time year-round permanent residential dwelling” would substantially impair the intent and purposes of the municipality’s zoning ordinances. Further, the board believed that placing heat within the “seasonal single-family garage apartment” would result in an expansion of a non-conforming use. The homeowner appealed to the lower court and the lower court upheld the board’s actions. On further appeal, the Appellate Division agreed with the denial. It rejected the homeowner’s argument that “both the conversion of the garage into a living room and the installation of a furnace [did] not require a variance because the structure would not be ‘enlarged, extended or increased,’ in violation” the municipality’s zoning ordinance. The Court pointed out that “expansion of a nonconforming use is not favored.” It rejected the homeowner’s argument that installation of heat did “not constitute an expansion of a nonconforming use” because heat is incidental to and customarily found in a dwelling unit. The Court reviewed a number of cases dealing with the issue of a temporal expansion of a nonconforming use, and concluded that making a summer rental unit usable year round was an expansion of use. Further, the municipal zoning ordinance precluded having two residential buildings on a single lot and held that the homeowner’s planned development “would essentially convert it into a two-story apartment, thereby further contravening the intent and purpose” of the zoning ordinance. Lastly, after reviewing the record, the Appellate Division concluded that the homeowner had not satisfied the negative and positive criteria needed to support its application for a variance.

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