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Saddle Mountain, L.P. v. Borough of Ringwood

A-4648-00T5 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; MINING; NON-CONFORMING USES—Under the diminishing asset doctrine, although a quarry may expand its area of excavation without being be considered to have violated the prohibition against expanding a prior, non-conforming use, it must first prove that it had an objective manifestation of its intention to mine the expanded area before the use became non-conforming.

A quarry owner challenged a municipality’s attempts to regulate its production. The lower court found that the quarry was a pre-existing, non-conforming use. As such, the quarry could remain in business but was not permitted to increase the volume or intensity of its quarrying above the levels that existed at the time the use became non-conforming. It also held that the municipality had the right to regulate the amount of excavation and quarrying on the site. The quarry owner claimed that the diminishing asset doctrine insulated its operation from a finding that it enlarged and expanded its non-conforming use. Under the diminishing asset doctrine, in cases where the non-conforming use involves the use of a wasting asset and requires continual expansion, the owner’s increased activity may not constitute an impermissible expansion of the non-conforming use. This is because one needs to expand the excavation area as areas dry up. The Appellate Division affirmed the lower court’s decision, and noted that the diminishing asset doctrine is not limitless because a court must take into account the “quality, character, and intensity of the expansion and its impact on the neighborhood.” In addition, an owner must also show that its entire property was dedicated to excavating activity despite the fact that the activity was limited when it became a non-conforming use. Further, an owner must demonstrate an objective manifestation of its intent to operate a quarry on the entire property during the period before quarrying was rendered a non-conforming use. Here, the quarry owner failed to do so.

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