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Villari v. Zoning Bd. of Adjustment of Deptford

Decided: November 15, 1994.

JOSEPH VILLARI AND SJ VILLARI LIVESTOCK, PLAINTIFFS-RESPONDENTS,
v.
THE ZONING BOARD OF ADJUSTMENT OF DEPTFORD AND DEPTFORD TOWNSHIP, DEFENDANTS-APPELLANTS.



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

Before Judges Skillman, Wallace and Kleiner.

Skillman

The opinion of the court was delivered by SKILLMAN, J.A.D.

Plaintiffs are the owners of twenty acres of land in Deptford Township, in Gloucester County, in an area presently zoned residential. Although some agricultural uses are permitted conditional uses in this zone, the "keeping of pigs" is only permitted on lots of fifty acres or more.*fn1 Thus, the raising of pigs is not a permitted use on plaintiffs' property.

Plaintiffs applied to the Deptford zoning officer for a permit to repair and reconstruct a fence for the purpose of holding pigs. Plaintiff Joseph Villari contended that members of his family had used the property for pig farming since 1929 or 1930, thereby creating a preexisting nonconforming use when the zoning was changed to prohibit this use,*fn2 and that he had not abandoned the use or the structures required for the use including the fence.

After the zoning officer denied plaintiffs' permit application, they filed an appeal with the Township of Deptford Board of Adjustment (the Board). At the hearing, Villari testified that pig farming had been discontinued on the property for a period of from seven to ten years, during which time it had been used for growing corn and alfalfa, and that the fence formerly used to enclose the pigs had deteriorated. However, Villari asserted that plaintiffs had always intended to resume pig farming on the property. He also indicated that plaintiffs had in fact resumed pig farming approximately eighteen months to two years before the hearing. Villari said that there were approximately 400 pigs on the property at the present time and that this number would increase to approximately 750 if pig farming were held to be a valid nonconforming use and plaintiffs were granted a permit to reconstruct the fence. Villari further indicated that there had been as many as 1,000 pigs on the property in the past. A substantial number of residents of adjoining properties testified in opposition to plaintiffs' application, most of whom indicated that there had been no pig farming on the property for at least fifteen years.

Based on this record, the Board found that "there were no pigs or hogs*fn3 being raised on the premises for a period of at least seven years and probably much longer" and that "the deteriorated fence and enclosed area in question were not maintained in any manner relating to the raising of hogs or pigs during this period of time." The Board further found that "the applicant's failure to act in any way to maintain the area in question carried a significant implication that the applicant abandoned his interest in the raising of pigs and hogs in the area in question." Consequently, the Board concluded that plaintiffs had "abandoned the non-conforming use and structure in question." Accordingly, the Board affirmed the zoning officer's denial of plaintiffs' permit application.

Plaintiffs filed this action in lieu of prerogative writs, contending that the Board's decision was not supported by substantial evidence in the record and was therefore arbitrary and capricious. Plaintiffs also contended that the zoning of his property and the Board's decision violated the "Right to Farm Act," N.J.S.A. 4:1C-1 to 10.

The trial court reversed the Board's decision, finding that plaintiffs "expressed no intention to abandon" pig farming on their property and "neither performed an act or failure to act which carries a sufficient implication" of an intent to abandon. The court also expressed the view that "where property has merely remained idol and there have [been] no significant changes made . . . which would be indicative of an intent to abandon the nonconforming use, such suspension of use does not extinguish the non-conforming use." Since the trial court concluded that plaintiffs had a preexisting nonconforming use, it did not address plaintiffs' alternative argument that the Right to Farm Act overrides municipal zoning which prohibits agricultural activities including the raising of livestock. The Board and Deptford Township appeal from the judgment reversing the Board's decision.

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that plaintiffs abandoned the use of the property for raising pigs. We also conclude that the Right to Farm Act does not override municipal zoning and land use regulation.*fn4 Accordingly, we reverse the judgment of the trial court and reinstate the Board's decision denying plaintiffs' permit application.

I

The continuation of nonconforming uses and structures is authorized by N.J.S.A. 40:55D-68, which provides that "any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of a partial destruction thereof." However, a property owner has the burden of establishing the existence of a nonconforming use or structure, ibid.; Weber v. Pieretti, 72 N.J. Super. 184, 195, 178 A.2d 92 (Ch. Div.), aff'd o.b., 77 N.J. Super. 423 (App. Div. 1962), certif. denied, 39 N.J. 236 (1963), and the statutory authorization for continuing such uses is construed restrictively. See, e.g., Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 209-12, 543 A.2d 950 (1988); Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315-18, 416 A.2d 388 (1980); Grundlehner v. Dangler, 29 N.J. 256, 263-64, 148 A.2d 806 (1959). "Because nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial Justice, they should be reduced to conformity as quickly as is compatible with Justice." Town of Belleville v. Parrillo's, supra, 83 N.J. at 315.

In accordance with this restrictive view, our courts have recognized that the right to continue a nonconforming use may be lost either through abandonment or discontinuance. Ibid.; Camara v. Board of Adjustment of Township of Belleville, 239 N.J. Super. 51, 56, 570 A.2d 1012 (App. Div. 1990). The traditional view is that "abandonment of a nonconforming use or structure requires 'the concurrence of two factors: one, an intention to abandon; and two, some overt act, or some failure to act, which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.'" Ibid. (quoting Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16-17, 259 A.2d 727 (Ch. Div. 1969)). However, we have recently recognized that "a nonconforming use or structure may be terminated based on cessation of use independent of any intent to abandon the nonconforming use or structure." Id. at 57.

Professor Williams has cogently explained the reasons for rejecting the traditional requirement that a nonconforming use or structure may be terminated only by establishing the property owner's ...


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