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Scotti v. Westfield Zoning Board of Adjustment

A-4304-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; PRIOR NON-CONFORMING USES — Where a property owner seeks to limit its zoning application to whether its use was a pre-existing, non-conforming use, its application may invite inquiry into whether a use has expanded into a non-conforming use.

A property had a large block building at the rear of its lot. It was utilized as a storage facility. Its owner operated a construction business and used the property to store his construction equipment both inside and outside the building. This use went unchallenged until the municipality’s zoning officer filed a complaint in municipal court alleging that the owner was in violation of a municipal zoning ordinance. Before the proceedings began, the property owner applied to the zoning board for confirmation that the property’s use as a storage facility was a pre-existing nonconforming use. At a board hearing, testimony was given that the owner’s business had expanded over the years and that, as a result, traffic had increased and the roads were being damaged. The board ruled that the property’s use had intensified over time, including by the parking of vehicles on the site, and denied the owner’s application. The property owner sued the board.

The Law Division upheld the board’s determination, finding that the board was not arbitrary, capricious or unreasonable in denying the owner’s application. It held that the owner’s own testimony supported the proposition that there had been a substantial intensification of the property’s use. The owner appealed.

The Appellate Division affirmed, holding that, although the property owner sought to limit his application to whether his use was a pre-existing non-conforming use, the board properly considered and acted on the proofs and materials before it. It ruled that the owner’s application had “invited such inquiry.” The Court stated that the board’s finding was that the use was not the pre-existing nonconforming use, but a use that had “morphed” into an expanded nonconforming use. Thus, the board addressed the very issue presented by the application. On the other hand, the Court found the board’s resolution to be technically deficient because it failed to list the votes of the members as well as to list who appeared and testified at the hearing. The Court, however, held that it would not remand to correct this deficiency because doing so would not change the Court’s ultimate determination on the matter.

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