Lieber Check Cashing LLC v. Atlantic City Zoning Board of Adjustment

A-3322-97T2 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: June 3, 1999

ZONING; “SECONDHAND STORES”—Even where the sale of used jewelry predominates, it is not unreasonable to classify the selling of new and used jewelry as a jewelry store rather than as a secondhand store, every where there is a separate zoning category for a second hand store.

A neighboring property owner challenged a decision by a municipality’s board of adjustment which affirmed the municipality’s land use administrator’s issuance of a Certificate of Land Use Compliance to an applicant that operated a business involved in “buying, selling, trading, exchanging cash for gold and sell[ing] new jewelry.” The municipality’s land use ordinance specifically sets forth the permitted and conditional uses for retail stores in different zoning districts. That ordinance classified jewelry stores as permitted uses in the subject zone, but did not allow “secondhand items” stores. Although the applicant sold new jewelry, most of its business consisted of buying and selling gold and used or secondhand jewelry. In hearings before the board, the land use administrator testified that he had issued Certificates of Land Use Compliance to ten to twelve stores in that particular zoning district, each of which conducted business operations similar to that of the applicant. He also testified that he considered a “secondhand items” store within the intent of the ordinance to be more akin to a “Salvation Army” type store and that he considered the requirement of the Mercantile Code for the licencing of dealers in “secondhand goods” to be totally separate from the zoning ordinance’s usage of that term. The lower court found that the decision as to whether the applicant’s business was a jewelry store or a secondhand store was a question of law and consequently the judge was not “bound to give any deference to the Board’s decision.” The Appellate Division affirmed the lower court’s conclusion that the land use administrator’s consistent interpretation of the ordinance as permitting such stores was entitled to “some deference,” and found that “it’s not unreasonable to classify the selling of new and used jewelry, even though the used jewelry sales are predominant, as a jewelry store, despite there being a separate category for secondhand stores.”