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Pugh v. Zoning Board of Adjustment of the City of Asbury Park

A-5590-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NON-CONFORMING USES — The burden of proving the existence of a non-conforming use is by a preponderance of evidence not by the harsher clear and convincing evidence standard.

A property owner discovered that the seven-foot wide driveway between his property and his neighbor’s property encroached on his property by about three feet. According to surveys, the driveway and the detached garage to which it led had been there since about 1907. The owner erected a fence along his property bordering the driveway. This prevented its neighbor from accessing the driveway. The neighbor sued, seeking title to the contested portion of the driveway by adverse possession. She claimed that the driveway and garage had been utilized continuously, openly, notoriously, adversely, and exclusively since her parents acquired the property in 1955 and therefore she was entitled to title to the contested portion of the driveway. In the alternative, she argued that she was entitled to an easement by prescription or by necessity. The property owner argued that his neighbor’s possession was not hostile, exclusive or uninterrupted and therefore she could not claim title by adverse possession. He also argued that the driveway was not a legal driveway by municipal zoning standards since the standard width for driveways since 1945 was ten feet.

At trial, the lower court found that the driveway had been used by the neighbor and her family for more than fifty years, that the driveway and garage were in existence since at least 1907 for ingress and egress to the detached garage, and that the use was open, continuous, exclusive, adverse and hostile, and notorious. Therefore, the lower court granted the neighbor and her successors in title a permanent prescriptive easement and a right to utilize the driveway for ingress and egress only. The lower court also enjoined the neighboring property owner from interfering with the use of the driveway and ordered him to remove the fence and restore the driveway. In its decision, the lower court stated that it was not making any findings as to whether the driveway complied with the zoning ordinance.

The neighboring property owner then asked the municipal zoning officer to enforce the zoning code requirement that driveway be ten feet wide. When the zoning officer refused, the property owner filed an appeal with the zoning board claiming that the driveway was not wide enough and did not qualify as a pre-existing non-conforming use. The zoning board granted non-conforming use status to the driveway, finding that although the neighbor had not proven the pre-existing non-conforming use in the zoning board hearings, it was bound by deciding the lower court decision to grant prior non-conforming status anyway.

The property owner appealed and the lower court found that the prior decision with respect to the easement did not preclude the zoning board from deciding whether or not the neighbor’s use of the driveway was a pre-existing non-conforming use. However, the lower court went on to find that there was overwhelming evidence of a pre-existing non-conforming use and that if the zoning board’s determination was otherwise, it would be arbitrary, capricious, and unreasonable.

The property owner appealed to the Appellate Division, but the Court affirmed, finding that the zoning board had used an improper standard of proof. It noted that the burden of proving the existence of a non-conforming use is by a preponderance of the evidence. However, throughout the zoning boar hearings, the zoning board applied the harsher “clear and convincing evidence” standard in weighing whether or not the neighbor had proven a non-conforming use. The Court found that, using the correct standard of evidence, it was clear that the neighbor had proven a pre-existing non-conforming use and that the zoning board’s determination to the contrary was arbitrary, capricious, and unreasonable.


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