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Rodriguez v. The Kearny Zoning Board of Adjustment

A-2562-98T3 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; PRE-EXISTING USE—Equity and fair play should be considered and applied by a zoning board when asked to grant a use variance to continue a use that a municipality knowingly permitted to exist, without objection, for at least 24 years.

A property had been used as a four family dwelling for many years. When the current owner acquired the property in 1974, no certificate of occupancy was required. Later, when it proposed to sell the property, the owner learned that it could not obtain a certificate of occupancy because use as a four family dwelling was not a permitted use in the residential zone where the property was situated. Accordingly, the owner sought a variance from the Zoning Board of Adjustment to continue the four family dwelling use. The property contained four completely separate apartments and had been regularly inspected and approved as a four family dwelling unit by the Department of Community Affairs. The Zoning Board of Adjustment denied the variance, but the Law Division reversed that denial, holding that when the Board denied the request to continue a use that had existed for 24 years, it was “hard to say that action is not arbitrary, capricious and unreasonable.” The lower court noted that had the Board granted the request, “everything would have continued as is and the applicants would be able to sell the premises as a four family house just as they had purchased it as a four family. By denying the request, the Board has imposed a significant hardship on the owner. The owner is going to have to undo what was done years before with no objection from the town.” The Appellate Division agreed and held that the applicants had shown special reasons for the granting of the relief they sought and also had satisfied the negative criteria. The Court believed that the applicants showed that there was undue hardship confronting them and that equitable considerations justified recognition of those hardships as satisfaction of the special needs requirements. The negative criteria were satisfied by the fact that the applicant was not seeking a new use, but applied only to continue a use that had existed for at least 27 years. The use was not out of keeping with the existing neighborhood. In affirming the lower court, the Appellate Division made it clear that it was doing so based upon notions of equity and fair play and not on the view that the municipality’s acquiescence in the improper use or the actions of its construction officials in permitting improvements had given rise to any estoppel.


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