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Nuckel v. Borough of Little Ferry Planning Board

A-2699-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NON-CONFORMING USES — The use of a narrow corner of a property for another property’s access to a highway is a de minimis expansion of the non-conforming use and does not constitute an expansion of the business activity of the non-conforming use resulting in intensification of that property’s use.

A developer sought to construct a hotel. The property was located within a B-H zone which permitted hotels as a conditional use. However, there was no direct access from the developer’s property to the highway. In order to resolve this, the developer proposed building a long driveway starting from the hotel property and traversing another of the developer’s properties, with access to and from the highway through a narrow corner of an adjacent property owned by the developer’s principals. The adjacent property was being used as an auto body shop, which was considered a pre-existing, non-conforming use.

After the planning board approved the proposal, a neighboring property owner objected to the proposal and sued. The lower court affirmed, but the Appellate Division remanded the matter to the planning board. The board approved the application and the neighbor again appealed. This time, the lower court reversed, finding that the use of the narrow corner of the adjacent property for access to the hotel constituted an expansion of that property’s non-conforming use. As a result, the lower court found that the developer needed a use variance for the hotel and a variance to expand the non-conforming use on the adjacent auto body shop property. The developer appealed.

According to the lower court, permitting the hotel to use a portion of the adjacent property would decrease the buffer zone between the non-conforming auto body shop building and the adjacent property. It concluded that the decrease in the buffer zone constituted an expansion of the non-conforming use, and therefore required a variance. The lower court decision was based on its interpretation of Razberry’s Inc.v. Kingwood Township Planning Bd., 250 N.J. Super. 324 (App. Div. 1991) which held that when a non-conforming lot is subdivided, the owner of the non-conforming lot must obtain a use variance to continue to use it.

The developer appealed and the Appellate Division disagreed with the lower court’s reliance on the Razberry case. Instead, it agreed with the developer’s argument that the proposed use of a narrow corner of the property for hotel access to the highway was a de minimis expansion of the non-conforming use. The developer essentially argued that the auto body shop lot’s use remained unchanged. The Court rejected the neighbor’s claim that intensification of traffic from the hotel would result in a significant expansion of the non-conforming use. Rather, the Court noted that the business activity of the auto body shop would not be expanded as a result of the access agreement and there would be no intensification of that property’s use as an auto body shop.

According to the lower court, the driveway access would take on the character of the use for which it was associated, namely the hotel. The lower court did not view the driveway as an accessory use to the adjacent property because it did not service the auto body shop present on that property. Therefore, the lower court concluded that there were two primary uses on the adjacent property, a hotel and an auto body shop. The Court also rejected this holding that the developer needed to apply for a use variance because the use of the adjacent property for access would place two primary uses on one lot in an area zoned for single uses. It found that only a small portion of the driveway was to be placed on that adjacent property, that it only took up a small portion of the adjacent property, and that the fundamental use of the property as an auto body shop remained unchanged by the placement of a curb cut to access the highway. It found the access point to be essentially “neutral” and did not result in two primary uses on the property.


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