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Marlboro Auto Wreckers v. Zoning Board of Adjustment of the Township of Marlboro

A-6137-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; PRIOR NON-CONFORMING USE — Where the owner of a property is unable to show that its historic use of the property included activities that would have been permitted before a change in zoning law, a land use board can properly rule that the proposed activities were not protected as prior non-conforming uses and evidence that such activities would have required a license had those uses been conducted at the property is a sufficient basis for denying a request for grandfathering of the non-permitted uses.

A company owned three properties that were operated as a commercial salvage yard. The properties were located in land use zones that did not permit junkyards without a variance. Also, a municipal ordinance required a license to operate a motor vehicle junkyard and a separate license to operate as a wholesale or retail junk dealer. The company had been in the municipality for approximately thirty years prior to the passing of the licensing ordinance. About twenty five years after the ordinance’s execution, the company received notice from the municipal zoning officer that the use of the properties for the collection and sale of scrap metal unrelated to motor vehicles was prohibited. The company sought a stay of enforcement, pending its presentation of an application to the zoning board for an interpretation that the company’s activities were either a permitted use or a pre-existing non-conforming use. The board held hearings and took testimony.

Although the company asserted that it conducted non-automotive scrap activities prior to the adoption of the municipal ordinance requiring separate licensure, it was unable to provide receipts for non-automotive scrap collected before that time. Additionally, though the company was licensed generally, after the ordinance was passed, neither the company’s applications nor licenses ever specified entitlement as an automotive facility or as a non-automotive facility. The company asserted that it engaged in efforts to segregate metal, yet the photographs it submitted lacked the quality to confirm this assertion. Testimony was taken from residents who disputed the company’s contention that its three properties had remained active through the years.

The board denied the company’s request that the ordinance be interpreted to find that its non-automotive scrap metal junkyard operation was a permitted use or alternatively, a pre-existing non-conforming use. On appeal, the lower court affirmed the board’s decision. The court held that the non-automotive scrapping operations were never licensed under the governing municipal ordinance and therefore would not be permitted to operate as a non-automotive junkyard in the future. The court said the fact that the operation handled mainly automotive scrap was supported by the owner’s own testimony that the business was not “heavily into scrap” and that “non-automotive scrap was not a principal business at any of the three sites.” The owner was also hard pressed to produce more than a few receipts documenting non-automobile scrapping activities.

The matter was further affirmed by the Appellate Division which concluded that the board’s decision was neither arbitrary nor capricious in finding that the evidence showed that the company was never licensed to operate, and could not now seek to operate as, a non-automotive junkyard under the applicable zoning ordinance.

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