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Rybak v. The Zoning Board of Adjustment of the City of Garfield

A-1080-02T5 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; NON-CONFORMING USES; ABANDONMENT—Abandonment of a pre-existing, non-conforming use require a subjective showing of intent, but such uses can also be terminated by reason of discontinuance which can be measured by an objective test.

A proposed tenant sought to operate a meat manufacturing plant at a site where a truck catering business had previously operated. Food preparation was not permitted at that location, but the meat manufacturer sought to rely on a permitted, non-conforming use based upon the existence of the truck catering business. By the time the tenant made its applications, the prior catering business had ceased operating three or four years earlier. The municipal ordinance deems discontinued any non-conforming use that had been “abandoned for a continuous period of two (2) years or more.” Based on that ordinance, the zoning board determined that the applicant’s proposed use was a non-conforming use and the prior use “as a food preparation facility for supply to catering trucks [had] been abandoned.”

The lower court vacated the denial because it felt that the terms of the ordinance were in conflict with case law. Case law holds that “the mere passage of time [is] insufficient to conclude that a use had been abandoned.” The lower court “found no evidence of intention to abandon the food preparation use.”

The Appellate Division reversed. It recognized “that if a use existed prior to an ordinance or amendment that made it non-conforming, such use may continue.” On the other hand, non-conforming uses are not favored and “may be terminated either through abandonment or discontinuance.” It agreed with the lower court that for an abandonment to occur, the must be both “(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.” On the other hand, “a nonconforming use ... may be terminated based on cessation of use independent of any intent to abandon the nonconforming use.” Here, an objective test may be adopted and, according to the Court, the ordinance providing a two year standard for discontinuance, was valid.” Consequently, the board’s decision should not have been set aside by the lower court.

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