This matter comes before the court by way of complaint in lieu of prerogative writ to review the actions of the Estell Manor Board of Adjustment in determining that a prior use variance had been abandoned and in thereafter denying the plaintiff's application for a new use variance.
The role of the court in such a case is strictly circumscribed. The court may not substitute its independent judgment for that of the board of adjustment. Confidence is reposed in the local officials who are more conversant with local conditions and interests. Their actions are not to be set aside unless shown to be arbitrary, capricious or unreasonable. A clear abuse of
discretion by the board of adjustment must exist before the court will overturn. Kramer v. Seagirt Bd. of Adj., 45 N.J. 268 (1965).
In reviewing the record below I find the underlying facts to be essentially undisputed. Plaintiffs are the owners of a 42-acre parcel of land in Estell Manor on which is situated a large georgian style mansion generally known as Manor Woods School. The property is zoned "highway commercial R-1." In 1972 plaintiffs' predecessor in title, Exceptional Children, Inc., sought and obtained a special use variance which allowed it to use the premises as an "administrative and business office for the intake and evaluation of children." The zoning board of adjustment conditioned its approval by limiting to twelve the number of "children located on the premises for evaluation." The premises was thereafter predominently used for the ensuing seven years as a residential evaluation and treatment center. For all or a major portion of this time plaintiff operated the facility under contract with the New Jersey Department of Human Services, Division of Youth and Family Service.
In November 1979 when the last class "was graduated" the New Jersey Department of Human Services had not renewed its contract with plaintiffs. Plaintiffs listed the property for sale with at least one broker, generally disseminated information with respect to the availability of the property and entered into negotiations with the New Jersey Department of Corrections, intervenor herein, to lease or sell the premises to it. After approximately 15 months of negotiations plaintiffs did in fact lease the premises to intervenor for use as a residential treatment facility for teenage boys. During the negotiation period the facility was used only sparingly by a former staff member for psychological evaluations and outpatient treatment. The court is satisfied from the evidence that the mayor of Estelle Manor at the very least had been apprised of the plans intervenor had for the use of the property. A building permit was obtained and certain improvements were undertaken and completed to ready the premises for intervenors' use.
At about this time the zoning enforcement officer of Estelle Manor notified plaintiff that the use did not conform to the zoning ordinance and that the prior use variance had been abandoned. It should be noted that a neighbor was, at this time, the source of repeated complaints respecting the operation by intervenor and the conduct of the residents. Plaintiff brought this matter before the zoning board for an "interpretive hearing" pursuant to N.J.S.A. 40:55d-70 b with respect to the issue of abandonment.
A plenary hearing was held and the board of adjustment determined as a matter of fact that the use variance had been abandoned. It concluded that plaintiffs' failure to use the property as a school consistent with the previously granted use variance for a period in excess of a year coupled with plaintiffs' efforts to market the property during that time constituted an abandonment of the variance previously granted. In so concluding, the board erred.
Absent an expressed provision in the zoning ordinance or a time limitation established in the variance itself, a use variance does not expire and is not lost merely because the property is vacant, placed on the market for sale or used in a more restrictive fashion. A variance granted is not personal to the owner to whom granted but is available to the grantees' successors. Unless limited by its terms, a use variance is permanent under the law and is not lost through nonexercise. Dimitrov v. Carlson, 138 N.J. Super. 52 (App.Div.1975); Fort Lee Bd. of Ed. v. Mayor, etc. of Fort Lee, 31 N.J. Super. 22 (App.Div.1954), which cited with approval the following rule stated in 2 Rathkopf, Zoning & Planning (3 ed. 1966) § 46-1 et seq.:
When a variance or special exception is granted the use permitted thereby becomes a conforming use and such use is not lost through nonexercise, in the absence of a time limitation set forth ...