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Moran v. Weikel

A-2516-03T5 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; ACCESSORY USE — In order to be granted a zoning permit on the basis of an accessory use to a residential property, the property owner must establish that he or she has a proprietary interest in the land where the structure is to be located.

A land owner applied to the municipality’s zoning officer for a zoning permit to construct a tower on his property. The land owner intended to lease the tower to wireless carriers and to use it to communicate with his own construction company. The zoning officer evaluated the application to determine whether the use of the tower qualified as an accessory use that was permissible under the local zoning ordinance. The zoning officer issued a zoning permit to the owner on the basis that the use of tower was an accessory use because it was being built on the same property as the owner’s residence, and the tower was going to be used for personal reasons. At the time, the zoning officer believed that the property consisted of one lot. Shortly thereafter, the officer learned that the property consisted of two lots and that the tower was going to built on the lot owned by the land owner’s children. The land owner used his children’s adjoining lot for his personal use and paid the taxes and insurance on the property. The zoning officer then issued a cease and desist order directing the owner to stop construction of the tower. Despite the order, the land owner continued to build the tower. The zoning officer then advised the land owner that he would reissue the zoning permit for the tower if the two lots were merged into one by deed. The land owner acquired the adjoining property from his children without paying any consideration. The zoning officer then refused to issue a permit on the basis that the tower was being installed for a commercial use and it violated a newly adopted ordinance regulating towers. The land owner filed a complaint in lieu of prerogative writ against the zoning officer, the municipality, and the municipal zoning board of adjustment.

The lower court remanded the matter to the zoning board, but retained jurisdiction. The zoning board denied the land owner’s permit on the basis that the use of the tower did not constitute an accessory use because, at the time of the initial, erroneous approval, the parcel on which the tower was to be constructed was not the parcel on which the owner’s residence was located, and the owner did not have a proprietary interest in the lot on which he planned to build the tower. The matter was then reviewed by the lower court which upheld the zoning board’s decision. The land owner appealed.

The Appellate Division affirmed the lower court’s ruling. In reaching its decision, the Court set forth the burden of proof that the land owner was required to satisfy before the Court could order the municipality to issue a zoning permit. It held that the land owner needed to demonstrate that he had an enforceable proprietary right in the land on which the tower was to be built. It ruled that the land owner failed because, until the second application, the land was owned by his children. By that time, the governing law had changed. It also found that the land owner’s control and regular use of the adjoining property did not grant him a proprietary interest in the property, but merely a license to use the property.

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