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Razberry''s Inc. v. Kingwood Township Planning Board

Decided: August 7, 1991.

RAZBERRY'S, INC., PLAINTIFF-APPELLANT,
v.
KINGWOOD TOWNSHIP PLANNING BOARD AND RICH-HIL TRANSPORTATION, INC., DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.

Shebell, Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

The issue presented by this appeal is whether a property owner may subdivide a lot occupied by a nonconforming use, thereby reducing the size of the property devoted to that use, without obtaining a use variance pursuant to N.J.S.A. 40:55D-70d(2).

Defendant Rich-Hil Transportation, Inc. (Rich-Hil) is the contract purchaser of a 5.17 acre part of a U-shaped 8.17 acre parcel of land located in Kingwood Township. The property is located in a commercial district but is occupied by the contract seller's residence, which is a valid nonconforming use.

Rich-Hil submitted an application for minor subdivision approval to defendant Kingwood Township Planning Board, proposing to divide the existing lot into two new lots, one of which would be retained by the contract seller for her residence and

the other of which would be conveyed to Rich-Hil to be used for some form of commercial development. Since the lot to be occupied by the contract seller's residence would consist of only three acres and the minimum lot size in the zone is five acres, Rich-Hil also applied under N.J.S.A. 40:55D-70(c)(1) for a hardship variance to authorize creation of an undersized lot. However, Rich-Hil did not apply for a use variance to authorize the lot to be occupied by a residence.

The Planning Board granted Rich-Hil's applications for the subdivision and hardship variance. Plaintiff Razberry's, Inc., the owner of an adjoining property, then brought an action in lieu of prerogative writs challenging the Planning Board's action. Plaintiff contended among other things that Rich-Hil's development plans would result in an intensification of the nonconforming residential use and consequently that a use variance was required. The trial court rejected this argument as well as plaintiff's other arguments and dismissed its complaint.

We are persuaded by both the language of the Municipal Land Use Law authorizing the continuation of preexisting nonconforming uses and the underlying legislative objective to bring nonconforming uses into conformity as quickly as possible that a use variance is required to continue a nonconforming use when the size of the property containing the use is reduced by a subdivision. Accordingly, we reverse the judgment dismissing the complaint and set aside the resolution of the Planning Board granting Rich-Hil's application for subdivision approval and a hardship variance.

N.J.S.A. 40:55D-68 provides in pertinent part that "[a]ny nonconforming use . . . existing at the time of the passage of an ordinance may be continued upon the lot . . . so occupied " (emphasis added). A subdivision results in the creation of two or more new lots which take the place of the larger lot out of which they are formed. Loechner v. Campoli, 49 N.J. 504, 511, 231 A.2d 553 (1967). Therefore, when a lot occupied by a

nonconforming use is subdivided, a prerequisite of the lawful continuation of the use, its operation upon the same lot, no longer can be satisfied, and the property owner is required by N.J.S.A. 40:55D-70d(2) to obtain a use variance for "an expansion of a nonconforming use."

This interpretation of N.J.S.A. 40:55D-68 is supported by the underlying legislative policy regarding nonconforming uses, which is that "they should be reduced to conformity as quickly as is compatible with justice." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315, 416 A.2d 388 (1980). "The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity." Id. at 316, 416 A.2d 388. Although a property owner may make a negligible or insubstantial change in a nonconforming use without a use variance, "[w]here there is doubt as to whether an enlargement or ...


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