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Rivera v. Zoning Board of Adjustment of the Borough of Collingswood

A-3420-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; PRE-EXISTING USE; INTERPRETATION—A court may look at the logical intent of the drafters in its understanding of how a zoning ordinance defines a “triplex” apartment building.

A zoning board denied an applicant’s request to certify a triplex as a preexisting non-conforming use and denied a use variance. The triplex appeared to be a modification of a single-family colonial-style house, constructed in 1926. The surrounding neighborhood reflected a variety of uses. It was adjacent to some commercial structures, a duplex, and a single-family residence. Directly across from the triplex was another triplex, a parking lot, and two duplexes. The triplex was one block from a train line. The applicant produced uncontroverted evidence that the premises had been used as a triplex for over 35 years and that, for 17 years, both the state and the borough had recognized the property as three-family dwelling. There was no evidence of non-compliance with applicable fire or other safety regulations. At the time that the building was converted to a triplex, the use was permitted in the zone. Later, the area was rezoned to permit only duplex residential units. Then, the ordinance was amended to permit duplex conversions. Later, duplexes were altogether prohibited. Finally, the area was rezoned to permit only single-family detached residences. The board found that the triplex was not a permitted use under the borough’s original zoning ordinance, “and thus the use was illegal from the outset.” Consequently, it denied certification of the triplex as a preexisting nonconforming use. In doing so, it narrowly construed a 1949 ordinance based upon technical details about multiple dwellings having common halls and entrances. The board ruled that because the second floor apartment had no common hallway, the building itself did not qualify as a multiple dwelling. The Court found the definition of a triplex within the ordinance “to be geared toward a traditional apartment house whereby all of the apartments have entrances from a common hallway.” Obviously, this was a single family house that had been converted to a triplex. The Court also noted that the 1949 ordinance “specifically permitted the conversion of existing structures into triplexes. Accordingly, those enacting the ordinance could not logically have contemplated that all multiple dwellings would be configured as box-like apartment buildings,” as the zoning board as hypothesized, “nor could they have intended the requirement of common halls and stairs to have been interpreted in the case of a building conversion in the narrow fashion adopted by the Board.”


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