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Roosevelt Avenue Properties, LLC v. Zoning Board of Adjustment of The Township of Ocean

A-5942-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NON-CONFORMING USES — Statutory and case law clearly establish that the burden of proving a pre-existing non-conforming use is on the person asserting such a use and a municipality’s lack of records has no bearing on the allocation of that burden.

A zoning board applicant purchased a four acre property in 1981. Since 1949, the property was in a zone designated as residential. The applicant’s principal was an attorney whose son, also an attorney in the same law firm, lived in an apartment on the adjoining property. “The structures on the subject property include[d] a house and a garage” which the applicant described as a “large four-bay commercial garage ... that was built to accommodate huge vehicles… .” The applicant and his son used the garage to store vehicles being used as exhibits in their court cases as well as to store personal vehicles and those of their employees. Several limousines had been stored at the subject property for years and, at one time, the applicant also did repair work at the property. Lastly, two of the garage bays were used to store the law firm’s files.

The municipality notified the applicant that use of the property for commercial purposes was prohibited. The applicant then filed two applications with the zoning board. The first was to confirm the validity of the premises as a pre-existing, non-conforming use and the other for a use variance. The applications were described as being “for the utilization of the premises as they are currently being utilized, which is [as] an occasional storage space [for] vehicles used ancillary to [the lawyer’s law] practice.” It also stated that the garage was not open to the public for commercial use. Basically, the applicant claimed that the garage was being used “to store vehicles and parts connected to his [law] firm’s cases where ‘mechanical factors were considered an issue on death or substantial injury cases.’”

At a hearing that followed, it was disclosed that the applicant also owned a racing stable and, when asked by a board member if the applicant’s horses had resided at the property, the applicant responded, “They will, perhaps.” Otherwise, no horses had been kept on the property. One of the applicant’s witnesses testified that, in or about 1958, the property had been used for “horse transportation ... between tracks and farms.” The testimony also revealed that the prior owner had kept horse trails on the property, but that the witness “was not aware of any other commercial activity at that location.” A licensed planner testified to his understanding that “vehicles have been parked on the property as tort evidence ... and the use [was] possibly continued on a limited basis.” The planner opined that “the proposed use [was] consistent with the residential use of the neighborhood and the property,” and characterized it as “rather innocuous.” The applicant also submitted a letter from a surveyor who had prepared two surveys in 1973. The surveyor “noted that the property ‘for many years, functioned as a horse transportation truck depot. Also, there was a stable for horses which were to be transported.’” In fact, the same surveyor had served as the Zoning Officer for the municipality and, in that capacity, “issued a mercantile license to ‘the Schwartz horse transportation business.’”

Despite all the testimony involving horse transportation vehicles, at the conclusion of the evidence, the applicant “again explained his proposal for storing vehicles on the property.” He “offered that all stored vehicles would be drained of gasoline, oil and all other fluids so that ‘on the crash vehicles, what you’re dealing with is basically just a piece of wreck metal, a hunk of metal.’”

The zoning board denied the attorney’s “application for certification of a pre-existing nonconforming use,” but “approved his application for a use variance permitting file storage and ‘no more than two vehicles to be stored outside… .’” In the resolution subsequently adopted by the board, “the Board reviewed the evidence and noted that ‘[a]lthough some of the uses on the site in the past may have predated’ the 1949 zoning amendment, ‘those uses have been abandoned and the current use of a storage facility for law office files or for the storage of wrecked vehicles needed to be preserved for use as evidence in civil action law suits [was] not permitted.’”

The applicant appealed, contending “that he wanted to continue to store and repair vehicles as he had been cited by the Township zoning officer.” He argued “that the steel infrastructure ‘of the garage’ [was] so unique that it [lent] itself to the fact that the repair and pulling of engines [was] something that is ancillary to its use and inherent in its use.” It also argued that there had been no abandonment and that storing and repairing commercial vehicles, products liability vehicles as evidence, repair of large trucks, and even temporary storage of horses while in transit were uses that were “historically dedicated to this property.” The Court rejected those arguments. It examined those arguments and concluded that the applicant, at the zoning board hearing, had “attempted to demonstrate the existence of the nonconforming use at the time the zoning ordinance was enacted in 1949.” The Court, however, felt that there was no specific evidence of that use and, at best, the testimony “demonstrated that at some point in time horses were liveried at the location and some kind of commercial garage operated there.” No specific dates were fixed. In addition, the testimony showed that the applicant had not used the premises as a stable for horses nor as a commercial garage since 1981 and, if those “uses preexisted the ordinance, by operating the garage as a storage facility the applicant changed its use.” For those and other reasons, the lower court upheld the zoning board’s ruling.

The attorney appealed further, arguing to the Appellate Division that the burden should have been placed on the municipality to show the historic uses at the property because the municipality could not produce records of those historical uses. Essentially, he argued that the municipality had the burden to prove “that the commercial use of the [p]roperty and [g]arage did not exist prior to the 1949 [z]oning [o]rdinance.” He also argued that the zoning board’s decision was arbitrary, capricious, and unreasonable and that there was no evidence of abandonment.

The Appellate Division dismissed the applicant’s first argument out of hand, holding that “[s]tatutory and case law clearly establish that the burden of proving a pre-existing nonconforming use is upon the person asserting such a use.” A municipality’s lack of records has no bearing on the allocation of the burden of proof. As to the applicant’s claim that the Board’s decision was arbitrary, capricious, and unreasonable, the Court pointed out that review of such claim must be done “under a highly deferential standard. [A] Board’s findings are entitled to assumption of validity and will not be disturbed so long as” the Court believed that “the board could reasonably have reached its decision.” The Court examined the record and believed that the board’s decision was properly reached.

As to the argument that the use had never been abandoned, the Court pointed to the case law standard reading: “[a]bandonment of a nonconforming use terminates the right to its further use. The traditional test of abandonment requires a concurrence of two factors: (1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.” Consequently, just because the applicant demonstrated that various commercial uses existed prior to 1949, did not mean that those uses were always protected. In essence, the applicant lost and the zoning board’s decision stood.


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