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Rojas v. Township of North Bergen

A-6672-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; PRIOR USE—When an ordinance grants an owner the irrebutable presumption that a non-conforming use existed prior to a given date upon a showing that it existed on that date itself, a municipality can not require the owner to prove that the building also conformed with the building code on that date.

A municipality, recognizing that its records made it almost impossible for a landowner to prove what was the permitted use at any time, particularly as to non-conforming uses, adopted an ordinance which provided: “[a] lawful pre-existing, non-conforming use with regard to the number of units in a residential building shall be irrebutably presumed to exist upon proof that the non-conformance existed on or before January 1, 1969.” Essentially, this ordinance created an “irrebutable presumption” based on the municipality’s 1968 revaluation records. According to those records, in 1968, a property owner’s dwelling was listed as a three-family dwelling. Despite that fact, the municipality argued that the property owner could not rely on the presumption because it did not prove that, in 1968, the building conformed with various code provisions. The lower court held in favor of the property owner because the ordinance, “pursuant to its own terms, granted an irrebutable presumption” that the home in question was a “lawful pre-existing, non-conforming use.” The lower court then considered whether a basement apartment had been abandoned. The property owner presented testimony that the basement apartment was essentially rented continuously and also provided testimony that there had always been a kitchen in the basement apartment. In fact, the apartment was vacant for only approximately one month when it was being redecorated. The lower court was satisfied that the short, temporary, discontinued use of the basement apartment was not an abandonment. The Appellate Division upheld the lower court’s finding and also held that the property owner did not first have to file an appeal to the municipality’s zoning board before asking a court to adjudicate the issue.


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