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Township of Stafford v. Stafford Township Zoning Board of Adjustment

299 N.J. Super. 188, 690 A.2d 1043 (App. Div. 1997)

ZONING; NOTICES; STANDING—Zoning board applicants seeking a certification of prior, non-conforming use must give notice to neighbors within 200 feet of the property even though the statute doesn’t expressly require such notice. A township has standing to challenge an action of its zoning board that threatens the integrity of its zoning ordinance.

A property owner appeared before the township Zoning Board of Adjustment seeking a certification that his property, to be used for the nonconforming business use of the sale, purchase and repair of cars, qualified as a pre-existing use. The applicant did not give notice of the hearing to neighbors within 200 feet in all directions of the property. Nonetheless, the Zoning Board adopted a resolution certifying the pre-existing nonconforming use, subject to two irrelevant conditions.

The governing body of the municipality challenged the certification on the basis that the applicant failed to notify its neighboring property owners. Resolution of this dispute turns upon an interpretation of the Municipal Land Use Law, N.J.S.A. 40:55d-12, which requires public notice of a hearing on an “application for development.” A subsidiary question was whether the municipality itself had standing to challenge the action of its own zoning board.

Although an application for development includes a request for approval of conditional use or for zoning variances, it does not expressly include an application to a zoning board for a certification recognizing the legality of a pre-existing nonconforming use. Thus, read literally, the defining statute does not require that neighbors be notified of a “certification” hearing. However, the Court recognized that if the application is for an expansion of a nonconforming use, it does fit within the definition of an application for development, and consequently, would require that notice be given.

The Court understood that the problem with excepting certifications of nonconforming use from the notice provisions is that, without notice, no member of the public would be in a position to know whether the applicant’s request would in fact be limited to the approval of an existing use or would instead result in an expansion of an existing use. In the Court’s words, “the applicant may be claiming as pre-existing what is in reality an expansion of a use.” Therefore, to hold a hearing without notice to the neighboring land owners would deprive the public of the opportunity to testify as to whether the applicant is seeking an expansion of its pre-existing use or whether the certification is limited merely to those already in effect. Using this analysis, the Court felt confronted with “a situation which apparently escaped the attention of the draftsman . . . .” As such, the Court rejected literal interpretation of the notice requirements of the Municipal Land Use Law as being contrary to legislative design, and held that all zoning board applications relating to nonconforming uses are in fact “applications for development” and require the giving of notice to neighboring land owners.

The Court agreed that the municipality had standing to request the Court to rescind the granting of the certification. The township has substantial public interest in preserving the integrity of its own zoning ordinance. Therefore, failure of a zoning board to act properly would be considered a substantial impairment of the municipality’s zoning plan. This is not a case where a governing body was challenging the wisdom of the zoning board’s action, but rather a case where the municipality was challenging the zoning board’s arrogation of authority. [Certification was granted on June 30, 1997.]


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