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Yeatman v. Morristown Board of Adjustment

A-3682-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—After a prior nonconforming use has been abandoned, the same use cannot not be resumed without a variance and if the neighborhood has changed away from the prior use, it is not arbitrary, capricious or unreasonable for a zoning board to deny the variance.

An individual purchased a lot located partly in an R-3 residential zone, and partially in an ORC zone. The portion in the ORC zone contained a one-story garage and service station. The portion located in the R-3 zone was unimproved, but contained a gravel parking lot. An automobile repair and service station business had been operated in the garage for about thirty years by the previous owner. That use ended in 1977. After the sale, the new owner used the garage for his fencing business to store motor vehicles and construction materials and to build and assemble fences. When the municipality changed its zoning, the garage became a nonconforming use. At that time, the previous owner tried to get a use variance for its dormant garage business, but the zoning board denied his request. It permitted parking for up to six vehicles. So, the new owner applied for a use variance, pursuant to N.J.S.A. 40:55D-70d, to utilize the existing garage structure for the commercial assembly of fences and to store related vehicles and materials. He argued that these uses were no more than a continuation of the preexisting, nonconforming commercial use.

The planning board rejected the applicant’s argument, holding that the prior use had been abandoned for ten years before to the new owner’s purchase of the property. Consequently, the proposed usage could not be a continuation of a preexisting, nonconforming commercial use. The board ruled that the only protected use was for automobile repair and service. The lower court affirmed the board’s decision. It held that the decision was not unreasonable because the proposed use was incompatible with the neighborhood which had changed substantially since the discontinuance of the prior use. The lower court also believed that operating a fencing business could be noisy and dirty.

The Appellate Division affirmed the zoning board’s decision. Since the service station had been abandoned for ten years, the new owner could not be conducting a preexisting, nonconforming use. Further, the proposed use would have entailed painting, hammering, sawing, and the removal of commercial waste products – all within a stable residential zone. For these reasons, the Court held that the board’s decision to deny the variance request was not arbitrary, capricious or unreasonable.

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