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Picardo v. Hoboken Zoning Board of Adjustment

A-3705-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; PRE-EXISTING USE — It is an applicant’s burden to prove the scope of a pre-existing use.

A married couple owned a small apartment building in an area zoned for one and two-family homes. They contended that before the zoning ordinance was amended to reduce the number of allowable units in the zone to a maximum of two, they had five pre-existing units in their building. They further contended that their five-unit apartment building was a pre-existing, non-conforming use. Most of the building was two stories in height, with a small partial third story at the front of the structure. The owners lived in a second floor apartment.

The owners decided to expand their apartment by adding two bedrooms, a laundry room, two bathrooms, and an elevator. Instead of seeking a variance, the owners simply got a construction permit. Soon after construction began, a neighbor filed suit to stop the construction. The lower court directed the neighbor to seek relief from the zoning board. The board issued a stop work order and, following a hearing, concluded the owners needed a variance to expand their prior non-conforming use. Witnesses at the hearing described the building as having three apartments. The husband owner did not testify at the hearing.

The couple filed an application for variance relief. Their application described the existing structure as having five units. They sought a variance to expand a nonconforming use and for a bulk variance to allow a smaller side yard setback. The board questioned the true number of apartments in the building. Again, the husband owner did not testify as to this issue. The couple’s planning expert conceded that enlarging the physical living space could lead to a more intense use of the property, and agreed that the records of the tax assessor listed the building as only having three units. Objectors to the variance presented a planner as an expert witness. He testified that the proposed addition would be inconsistent with the density and scale of the neighborhood. He also opined that expanding the top floor would reduce light and air to adjacent lots. A neighbor testified that the partially constructed addition blocked her light and open space. Several other neighbors also testified to similar blockage.

The board denied the application, finding the owners had failed to demonstrate the appropriateness of the requested variance in light of the existing zoning in the area, and found that a variance would not substantially impair the intent and purpose of the zone plan. The owners sued in the lower court to challenge the board’s decision. The lower court concluded the board had acted reasonably in finding the couple did not meet the criteria for a variance. It noted that the board gave greater weight to the testimony that the addition would not foster compatibility in scale, density, and design pursuant to the master plan than it did to the applicant’s testimony. It noted the property already exceeded the maximum permitted density for the district. The lower court found the board had reasonably held the variance would only serve to benefit the couple and not the community as a whole.

On further appeal, the Appellate Division affirmed, holding that the owner’s expert testimony was insubstantial in making the case for a variance, as their own expert admitted the owners could have eliminated one unit in the building and expanded their apartment within the existing structure. Further, the owners presented no factual rebuttal to the testimony from many neighbors who attested that the partially-built extension was already blocking their light, air, and views. Additionally, the owners failed to prove the scope of their pre-existing use. The owners never presented legally competent evidence that their building had five units. The husband did not testify, nor did any of his tenants testify to authenticate that level of occupancy.

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