Skip to main content



Wilmark Building Contractors, Inc. v. Township of Readington Planning Board

HNT-L-132-03 (N.J. Super. Law Div. 2006) (Unpublished)

ZONING; SUBDIVISION; NON-CONFORMANCE — There is a distinction between a use permitted by a prior variance and a non-conforming use in that a non-conforming, but legal use, does not require a new variance when subdividing a property.

Land was located in a agricultural-residential (AR) zone, which meant that if the land were to be developed residentially, the municipal zoning ordinance would require clustering the residential lots to have 70% of the land set aside as open space or agricultural use. Its owner applied to the municipal planning board for an agricultural division of the land that would make it exempt from the clustering and open space requirements. The larger lot would have included a riding school and horse stables with two existing apartments. The smaller lot would have been used as a stud farm.

The property owner’s predecessor in title used the property for raising and training horses. Besides the horse facilities, the property contained two separate dwellings, a main house, and a cottage. The predecessor was granted a use variance by the zoning board for the operation of a riding school, together with barn, indoor riding ring, and riding master quarters. The predecessors then built two apartments above the barn.

Under the relevant section of the municipal zoning ordinance, permitted uses in the AR zone included detached single family dwellings and farm and agricultural uses, which in turn included the raising and training of small animals and livestock. Multiple dwelling units, such as apartments, were not permitted.

The planning board denied the application, because the apartments on the property were not a permitted use in the zone. It further concluded that a use variance was required because of the non-conforming apartment use. The property owner filed a complaint in lieu of prerogative writs, but the lower court affirmed the decision of the planning board. The lower court noted that the property owner had not presented evidence of the prior use variance granted to his predecessor. Furthermore, taking the prior use variance into account would have still required a variance review by the zoning board.

The property owner then submitted its application to the zoning board, claiming an entitlement to an agricultural division exempt from other subdivision regulations. This time, the property owner presented evidence of the prior use variance. The zoning board again denied the property owner’s application, this time because the owner failed to satisfy the positive criteria for a variance, the negative criteria presented substantial impairment to the intent and purpose of the zoning ordinance, and the property owner failed to prove absence of impairment to the public good. The property owner amended its prerogative writs complaint to name the board as a defendant, and it renewed its appeal.

The property owner presented two main arguments: (1) its application was not subject to the usual requirements for a subdivision because the property owner’s proposed subdivision did not fall under the MLUL’s definition of subdivision; (2) the prior use variance allowed two apartments, therefore, the property owner’s use of the property was lawful and he did not need to obtain a new variance.

Interpreting the MLUL and the municipality’s zoning ordinance, the Court reasoned that nothing in the relevant statute required that the land be used exclusively for agriculture to be exempt from the definition of subdivision. Thus, agricultural purposes that may be entitled to division under the statute may include permitted uses such as residences, accessory uses, uses permitted by variance, or prior non-conforming uses. Further, if such uses were consistent with a dominant agricultural use of the property, then a division of the land that continues the dominant agricultural use would be exempt from the definition of a subdivision. Accordingly, the Court concluded that the board errantly concluded the statutory exemption inapplicable where the property had another use besides agricultural. The Court also concluded that although the property owner’s intent to build dwellings in the future may have been relevant to whether the division of the land had a true agricultural purpose, it was not a proper basis for rejecting outright the exemption provided by the MLUL. The Court was not persuaded by the board’s argument that the zoning ordinance excluded a single-family detached dwelling from the definitional agricultural use or farm. The Court reasoned that if that were true, a farm with a farmhouse would constitute dual primary uses of the property that would require a variance. Further, many farmers would have been prohibited from taking advantage of the statutory exemption and continuing the agricultural use of their farm after division. On the contrary, under the MLUL, a farmer is able to divide his or her property and continue the farming uses in two or more parcels, each with a residence. Also, the Court concluded that the municipality’s zoning regulations were not a reason to deny an otherwise valid agricultural division under the MLUL. If an applicant’s proposed use of the resulting lots for the foreseeable future is for agricultural purposes, the applicant is entitled to the benefits of the exemption from subdivision regulations. Accordingly, the Court held that this property owner was entitled to an agricultural division so long as each lot would be used for agricultural purposes and all uses were authorized by ordinance, variance or otherwise.

Next, the Court considered whether the inclusion of one or two apartments above the barn required a variance. The Court held that neither the zoning ordinance at the time nor the zoning ordinance applicable when the prior use variance was granted permitted residential uses other than single-family detached dwellings. Further, the Court explained that an agricultural division does not exempt property from all zoning restrictions, only those that apply to subdividing the property. After its review of case law, the Court also explained that a variance for a use of property otherwise not permitted in the zoning district must satisfy the MLUL’s special reasons standard. Thus, the issue was whether the property owner needed a new variance, which in turn depended on whether the prior use variance permitted two apartments or only one. Noting the distinction between a use permitted by a prior variance and a non-conforming use, the Court explained that a non-conforming, but legal use, did not require a new variance. Thus, the Court remanded the issue to the board to determine whether the use of the property was lawful. If the use was lawful, then the board was instructed to approve the division subject to the property owner’s showing that the reduction of the lot size would not a substantial detriment to the public good. If the use was not entirely lawful, the property owner would have needed to obtain approval through a new variance.

Lastly, the Court addressed the issue of interpreting a prior use variance. The board stated that the prior variance only permitted one apartment. The property owner presented evidence showing that the municipality’s inspections and reviews acknowledged and accepted the two apartments without objection. The Court explained that the standard of review from a municipal board’s interpretation of a prior variance depends on whether there is a factual dispute regarding the circumstances of the application and adoption of the variance, and subsequent interpretation of the variance by municipal officials, or whether it is purely a matter of interpreting the legal effect of language contained in the variance. In light of that standard, the Court determined that the issue for the board was whether the prior variance permitted one or two apartments. Rather than making original findings of fact, the Court instructed the board to review the evidence to determine whether, in light of the acceptance of the two apartments by the municipality’s officials, the prior variance permitted one or two apartments.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com