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Shire Inn, Inc. v. Borough of Avon-By-The-Sea

321 N.J. Super. 462, 729 A.2d 473 (App. Div. 1999)

MOUNT LAUREL; BUILDER’S REMEDIES—The necessary criteria for a Mount Laurel builder’s remedy are not met when the proposed project would expand a prior non-conforming use.

This was a Mount Laurel action in which a developer was seeking availability of the “builder’s remedy.” A developer had identified a property that consisted of a twenty-four room hotel and a two-bedroom apartment. Those structures were pre-existing, non-conforming uses in a residential zone. The particular “builder’s remedy” sought by the developer was the court’s approval of a plan to convert the hotel use into a Class A rooming house consisting of twenty-six units. The lower court held that the developer had only satisfied two of the three requirements for eligibility for a “builder’s remedy.” There was no question about the first two, i.e., that it had successfully prosecuted a Mount Laurel suit and that its proposed set-aside of five out of twenty-six was, in these circumstances, a substantial amount of low and moderate income housing. The lower court held, however, that the developer had failed to meet the third eligibility requirement, being that “[t]he impact of the proposal on the environment or other substantial planning concerns must not be clearly contrary to sound land use planning.” In fact, the lower court rejected the conclusion of its special master “that the site was suitable for the proposed project and that ... the proposed use would be similar in impact to the impact of existing, nonconforming use.” In contrast, the lower court found “that the proposed use is not suitable for the site and is . ..contrary to sound land use.” The essence of the issue was whether use of the property as a rooming house constituted the same use as that of a hotel. The developer (and the existing property owner) argued that the uses were similar, but different. Therefore, it argued that the rooming house would be a continuation of a non-conforming use, and would not change the impact of the property on the surrounding area.

The Court pointed out that nonconforming uses are inconsistent with the objectives of uniform zoning and, as such, should be reduced to conformity quickly, fairly, and equitably. Non-conforming uses may continue, but not be enlarged or extended. The Court held that a rooming house use where an individual may establish a permanent residence is a different kind of use from that of a transient hotel. To reach that conclusion, the Court looked at N.J.S. 55:13A-3(j) which defines a hotel as “a building which contains ten or more units of dwelling space or has sleeping facilities for 25 or more persons where sleeping or dwelling accommodation are available to transient or permanent guests.” Excluded from the hotel definition, however, are rooming houses or boarding houses, which the Act defines as “a building which contains two or more units of dwelling space arranged or intended for single room occupancy wherein personal or financial services are provided to residents, including any residential hotel or congregate living arrangement.” In essence, transient hotel guests generally use a hotel on a limited basis to sleep and, sometimes to eat, whereas a rooming house becomes the home or domicile of its individual occupants, who tend to reside in the premises for longer periods of time and make more use of the premises, thereby having a greater impact upon surrounding neighbors. Consequently, the Court agreed with the lower court that the third criterion for “builder’s remedy” eligibility rather emphatically sets forth that sound planning and control is as much a benchmark of Mount Laurel compliance as it is in land use administration generally. Here, given the general land use considerations involved, the municipality and the neighboring land owners were entitled to the likely eventual abatement which the pre-existing non-conforming use concept connotes, especially with respect to a property which deviated so far from the presently authorized existing hotel use. Therefore, the third criterion was not met, and the Court denied the “builder’s remedy.”


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