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Nickels v. City of Wildwood

May 16, 1995

STEVEN NICKELS, INDIVIDUALLY, AND ON BEHALF OF NICKELS MIDWAY PIER, A NEW JERSEY PARTNERSHIP, JOSEPH MACK, MACK'S ENTERPRISES, INC., A NEW JERSEY CORPORATION, AND JOE AND DUKE REALTY, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-RESPONDENTS,
v.
THE CITY OF WILDWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND MARINER'S LANDING, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

The opinion of the court was delivered by: Pollock

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STEVEN NICKELS, ET AL. V. THE CITY OF WILLDWOOD, ET AL. (A-81/82-94)

Argued January 30, 1995 -- Decided May 16, 1995

POLLOCK, J., writing for a unanimous Court.

Mariner's Landing, Inc., owns an amusement pier in Wildwood's resort-commercial zone. Because Wildwood's zoning ordinance does not explicitly permit amusement piers in that zone, Mariner's pier is a nonconforming use.

In 1990, Mariner's Landing developed plans to expand its pier to the east and to the north. It applied to the Wildwood Zoning Board of Adjustment for two use variances. The Board granted both variances. In October 1991, the Law Division declared the variances invalid. The Appellate Division subsequently reversed that determination and remanded the case to the Law Division. Thereafter, the Law Division entered an order that essentially preserved the rights of the parties pending the outcome of this appeal.

While the use-variance appeal was pending, the Wildwood Planning Board determined in April 1992 that the expansion of existing amusement piers was consistent with Wildwood's master plan. The Planning Board recommended that the Wildwood City Council amend the zoning ordinance to permit the expansion of existing piers, subject to certain limitations. Meanwhile, in a separate proceeding, the Board of Adjustment concluded in May 1992 that the zoning ordinance allowed expansion in existing amusement piers as a permitted use.

Following the Planning Board's recommendation, on November 16, 1992, the City Council adopted the ordinance that is the subject of this appeal. That ordinance did not declare amusement piers to be permitted or conditional uses. Wildwood apparently sought to permit the expansion of existing piers without expressly declaring them to be a permitted use.

Shortly after City Council adopted the amendment, the Planning Board approved Mariner's site plan to extend its pier. In the interim, Steven Nickels and the other plaintiffs had begun this action, which challenged the validity of the zoning ordinance amendment. The Law Division found the amendment to be valid. On appeal, the Appellate Division reversed. The Supreme Court granted the petitions for certification of Wildwood and Mariner's Landing, Inc.

HELD: By authorizing the expansion of existing amusement piers, a nonconforming use, without declaring them to be a permitted use, Wildwood's zoning ordinance is invalid under Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205 (1988).

1. Non-conforming uses conflict with the goal of uniform zoning and should be brought into conformity as soon as practicable. Absent partial destruction, a Board of Adjustment may authorize expansion of a nonconforming use only by granting a use variance pursuant to N.J.S.A. 40:55D-70d. Alternatively, the governing body may recognize the use either as a permitted use or a conditional use under the appropriate statutory provisions. (pp. 5-6)

2. Wildwood's zoning ordinance did not recognize amusement piers either as a permitted use or as a conditional use. Thus, both before and after the adoption of the challenged zoning amendment, ...


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