This prerogative writ action challenges a resolution of the Zoning Board of Adjustment of East Brunswick declaring that the predecessor in title of defendant Barry M. Rauff had established a valid nonconforming use of the subject premises for the sale of antiques. The challenged resolution also finds that an exterior sign used by Rauff to advertise his antiques business is the same size and dimension as a sign used by his predecessor and hence may continue to be used.
The facts relevant to the establishment of the purported nonconforming use are set forth in the zoning board's resolution and are not subject to serious challenge. The subject property was conveyed in 1955 to Rauff's predecessor in title, Marion Thomas, who used it as her home until her death in 1980. During this time Thomas also used the property for the sale of antiques. This use was not a permitted use under the zoning ordinance then in effect and Thomas never applied for a variance.
A little more than a year after Thomas' death, the property was conveyed to Rauff. He proposed to continue using the property for the sale of antiques. In order to conduct that business, Rauff applied to the project planner for East Brunswick for a sign permit for a business known as "Antique Interior by Barry." The application was granted, which precipitated an "appeal" to the board by a property owner residing near the Rauff property.
The zoning board concluded that the sale of antiques was not a permitted use in the zone and that the use was therefore nonconforming. It also concluded that the use had not been permitted by any ordinance which had been in effect since Thomas acquired the property in 1955.*fn1 Nevertheless, the board concluded that the use of the property became a valid nonconforming use in 1958 when the township adopted a new zoning ordinance. It construed one section of that ordinance as a blanket validation of every use of property then being made in the municipality, regardless of whether the use was then or ever had been a permitted use.
The court must determine whether the board's construction of the 1958 zoning ordinance is correct and whether a blanket validation of all existing uses of property is compatible with state land use legislation.
The section of the 1958 zoning ordinance construed by the board as a blanket validation of all existing uses of property in paragraph C(4) of section XIX, which states:
Upon written request from an owner or tenant, the building inspector shall issue a certificate of occupancy for any building or use of land existing at the time of enactment of this ordinance certifying, after inspection, the extent and kind of use made of the building and whether such use conforms to the provisions of this ordinance. Such a certificate shall be issued without charge within six months of the enactment of this ordinance for any nonconforming use or building.
This section does not on its face purport to validate uses of property which were illegal when the zoning ordinance was adopted. To the contrary, the primary objective seems to be the establishment of a mechanism by which property owners may verify that existing uses of property conform with the zoning ordinance. It does provide that a certificate of occupancy may be issued for a "nonconforming use." However, this term has a well established meaning in the law of zoning; that is, a use which was permitted when commenced but is prohibited by a subsequently adopted zoning ordinance. Belleville v. Parillo's, Inc. 83 N.J. 309, 315 (1980); Universal Holding Co. v. North Bergen Tp., 55 N.J. Super. 103, 110 (App.Div.1959). Therefore, if the governing body of East Brunswick had intended a more expansive scope for the term "nonconforming use," it reasonably may be expected it would have said so in clear and unequivocal language. However, the ordinance contains no definition of the term nor any indication that anything other than its usual meaning was intended.
It is also noteworthy that the thrust of the section authorizing nonconforming uses is, as in most zoning ordinances, to restrict them to the maximum extent possible. Thus, section XVIII not only prohibits any enlargement of a nonconforming use but also provides that the right to continuation will be lost if the building in which it is conducted is "enlarged, extended, reconstructed, structurally altered or removed." Furthermore, section II states that the 1958 ordinance should be construed not to repeal or in any way impair existing zoning ordinances except to the extent it imposes more restrictive ...