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Heywang v. Zoning Board of Adjustment of the Borough of New Milford

A-5146-96T2 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING—A zoning ordinance prohibition against “used car lots” was found to logically apply only to outdoor sale of cars. An application seeking to sell cars solely from inside a building is not in violation of the ordinance.

Commercial property owners sought to start a business selling restored antique cars. The sales would take place exclusively from facilities inside a building on the premises. The application for a use variance was denied by the municipality’s board of adjustment. The Law Division reversed the board’s determination, and the board appealed.

The Appellate Division found that the relevant zoning ordinance permitted the “conduct of commerce and the sale of commodities” unless specifically prohibited, and that “used car lots” were specifically prohibited. Although the board focused on the simple fact that the commodity to be sold was used cars, the Appellate Division found that the prohibition of the zoning ordinance does not address, “the commodity being sold, but rather the manner in which the business of selling used cars is conducted.” The Court found the outdoor character of a typical used car lot was what justified its exclusion from general business zones. The Court stated that the proposed use in this case was contrary to the common understanding of what a used car lot is, and did not appear to be a use encompassed by the prohibition. The board claimed that its real concern was that the business had the potential to spill over into the open space on the property. In response, the Court ruled that owners of property cannot be deprived of a permitted use because of speculation that an ordinance will be violated in the future. Since the property owners were going to conduct their business entirely within the building, the Court held that they were not going to operate a used car lot in violation of any ordinance, and that they could proceed to operate their business as proposed.


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