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O’Bom Pastor, Inc. v. Planning Board of Adjustment of the Borough of Cliffside Park

A-5256-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; NON-CONFORMING USES—It is not the actual use of a facility that determines whether use of a prior nonconforming property has been intensified, but rather the scope and extent of the legally permitted use.

A church bought a property that had previously housed an American Legion assembly hall. “Assembly halls generically and churches specifically [were] permitted uses in the zone in which the property [was] located.” An assembly hall use, however, was “a valid prior nonconforming use, because [] a later adopted on-site parking requirement [had been adopted] for all assembly use, including churches, auditoriums, theaters, and stadiums.” There wasn’t enough parking at the property, but the municipal parking lot across the street could be used. Under New Jersey law, “as long as [its] use is neither changed nor intensified, the status of a property as a legal nonconforming use is retained despite a change in occupancy. That principle has been specifically applied to an off-street parking requirement.” Consequently, a lower court ruling that the church could not fit within a prior nonconforming use was wrong. The Appellate Division pointed out that the test is whether “use of the premises by the church constituted a change in or intensification of the [prior] assembly-hall use.” The municipality argued that attendance at the American Legion assembly hall had been declining rather regularly and that the new church would constitute an intensification of the use. Nonetheless, according to the Appellate Division case law “teaches that it is not the actual use of the facility that determines intensification but rather the scope and extent of the legally permitted use.”

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