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Hoch v. City of Atlantic City

A-2097-97T3 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING—When the issue in question deals with conditions that existed 60 to 70 years ago, it is unreasonable for a board to discredit testimony just because the “time frame is too attenuated.”

A building owner whose building included two apartments, ten rented rooms, and fourteen bathrooms, applied to the zoning board of adjustment for certification that its use constituted a nonconforming use. The building was constructed in 1920. The municipality adopted its first zoning ordinance in 1929 and under the ordinance, as well as under all subsequently adopted ordinances, a rooming house was a prohibited use in the zone in question. At the hearing before the board, the building owner presented testimony in the form of eyewitnesses who testified that the property had been used as a rooming house as far back as the 1940’s, the 1930’s, and the “late 1920’s.” There was no evidence that the building had been used for any other purpose, or that it had ever been converted from a one-family house (its only permitted use under the 1929 ordinance), or that anyone, including municipal officials, had ever claimed that its use violated any zoning ordinances. Nevertheless the board denied the requested certification. The decision was appealed and upheld. The Appellate Division reversed the decision.

The Court found no doubts raised as to the testimony of the building owner’s witnesses that pointed to the conclusion that the building had been used as a rooming house since before the ordinance was passed. It also found that there was no evidence produced to the contrary. In its view, the lower court’s observation that the board could have reasonably found the witness’ testimony less than credible because the “time frame is just too attenuated” was itself unfair and unreasonable. Where the issue turns on conditions that existed 60 to 70 years ago, it is inherent that the time frame is attenuated. The Court found no reason to weigh that factor against the land owner. Even though the Court was reluctant to appear not to grant deference to an administrative board, it was compelled to overrule this decision because the board had no reasonable, lawful basis for reaching its conclusion.


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