Skip to main content



Karas v. Foss

A-4660-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; ABANDONMENT — Merely offering to sell a property for a purpose other than for the existing nonconforming use does not constitute abandonment of the nonconforming use.

A property owner purchased a property that had been used as an automobile service station for the previous twenty-five years. This was a valid pre-existing nonconforming use. After the purchase, the property was continually used for a gas station and various automotive services for forty-four years until the most recent tenants ceased operating their businesses there. At that point, the property owner was negotiating with a bank that was interested in purchasing the property for use as a branch with a drive-through facility. The bank sought a variance for its intended use, but the zoning board denied the application and pointed out that the property was only to be used for the pre-existing nonconforming use as a service station.

The property owner then tried to sell the property to a car dealership that wanted to store and service new automobiles. The cars were to be sold off-site at the dealership. The board found that the dealership’s intended use also deviated from the permitted pre-existing nonconforming use. After four years of non-use, the property owner leased one half of the property to a tenant who operated a service station. Two years later, a prospective tenant sought permission to operate a service station for commercial trucks and heavy equipment. At a board hearing on the requested use, an objector who lived on an adjacent property testified that the property owner had abandoned the pre-existing nonconforming use when he attempted to sell the property to the bank. Following the hearing, the board approved of the request to allow one half of the property to be used for servicing commercial trucks.

The objector sued the property owner, the prospective tenant, and the zoning board, arguing that the board failed to consider whether the proposed use was an impermissible intensification of the existing use. She also argued again that the property owner had abandoned the nonconforming use when he attempted to sell the property for a different use and due to years of non-use. The lower court upheld the board’s decision that the existing use of the property had not been abandoned by the property owner, but remanded the matter for a determination by the board as to whether the proposed use was an impermissible intensification of the existing use. The hearing was only to be held if either party chose to argue the matter.

The objector chose not to argue against the proposed use on remand and instead appealed the lower court’s determination that the property owner had not abandoned the pre-existing nonconforming use. On the objector’s appeal, the Appellate Division pointed out that nonconforming uses were allowed to continue indefinitely and that a nonconforming use was only considered abandoned if the landowner showed an intention to abandon the use and took some overt act which indicated abandonment. The Court also pointed out that while the state had an interest in eliminating nonconforming uses, such uses were a valuable property right and that the passage of time in which a property was not used for the nonconforming use, or any other purpose, did not indicate abandonment of the use. It further pointed out that there was no precedent for the objector’s argument that any attempt by a landowner to sell a property to be used for a purpose other than a nonconforming use constituted an abandonment of the nonconforming use. Consequently, the Court upheld the board’s decision and found that it was not arbitrary, capricious or unreasonable.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com