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Poulathas v. Atlantic City Zoning Bd. of Adjustment

June 28, 1995

NICHOLAS AND HAROULA POULATHAS, PLAINTIFFS-RESPONDENTS,
v.
ATLANTIC CITY ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Atlantic County.

Approved for Publication June 28, 1995.

Before Judges King, Muir, Jr., and Eichen. The opinion of the court was delivered by Muir, Jr., J.A.D.

The opinion of the court was delivered by: Muir

MUIR, JR., J.A.D.

This is a zoning case which entails review of defendant's denial of plaintiffs' application for a certificate of nonconformance under N.J.S.A. 40:55D-68. Defendant ruled plaintiffs had a nonconforminguse protected by the provisions of the statute but deemed the use abandoned by plaintiffs' subsequent modifications to their building on Ventnor Avenue *fn1 in Atlantic City. The trial court reversed, concluding plaintiffs had a protected nonconforming use as to the three apartments and two stores contained in plaintiffs' building at the time of plaintiffs' application for the certificate. Defendant appeals. We affirm.

After a hearing on plaintiffs' application for a certificate of nonconformance under N.J.S.A. 40:55D-68, defendant adopted a resolution of denial. The resolution contained the following findings and Conclusions:

(1) The applicant is the owner of the subject property;

(2) Notice requirements were not required; and

(3) From 1979 to 1993 the property was Zoned R-2 by the Atlantic City Zoning Ordinance which did not permit two stores and three apartments.

(4) From 1929 to 1979 the property was Zoned Business District #2 by the Atlantic City Zoning Ordinance which permitted two stores and three apartments.

(5) The 1961 Property Record Card of the City of Atlantic City indicates two stores and three apartments.

(6) The 1981 Property Record Card of the City of Atlantic City indicates two stores and three apartments.

(7) The testimony of Keith Mills of the Atlantic City Planning Department indicated that the owner had been charged with and found guilty of illegally expanding a nonconforming use in Atlantic City Municipal Court in 1991.

(8) Based upon the applicable Case Law in the State of New Jersey, particularly Marino v. Mayor and Council of Norwood, 77 N.J. Super. 587, 187 A.2d 217 and Barbarisi v. The Bd. of Adjustment, etc. of The City of Paterson, 30 N.J.S.A. 11, 17 (App. Div. 1954), this illegal expansion causes this property to lose its former legal character ...


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