On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication April 2, 1997.
Before Judges Michels and Coburn. The opinion of the court was delivered by Coburn, J.
The opinion of the court was delivered by: Coburn
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
This action in lieu of prerogative writs, R. 4:69, projects two important issues under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129 (MLUL): does a zoning board of adjustment have jurisdiction to certify a nonconforming use as one which existed before adoption of the zoning ordinance which rendered the use nonconforming when the applicant has failed to notify the property owners within 200 feet of the property of the hearing; if not, does the governing body of the municipality have standing to challenge the award of the certificate in those circumstances. The Law Division dealt only with the second issue, holding that under Township of Dover v. Board of Adj. of Tp. of Dover, 158 N.J. Super. 401, 386 A.2d 421 (App. Div. 1978) the governing body lacked standing. Consequently, it dismissed the action. Plaintiff appeals. We reverse the judgment below and vacate the certification issued by the zoning board without prejudice to the applicant's right to reapply to the zoning board on proper notice to the neighboring landowners.
In May 1995 defendant Hugh Schultz filed a document entitled "Development Application" with the Stafford Township Zoning Board of Adjustment. He listed as the purpose of the application "interpretation by [the] zoning board pursuant to N.J.S.A. 40:55D-70b and 68 as to whether [the] subject property and structure is a legal non-conforming business use for the sale, purchase, and repair of cars." The property is Lot 13, Block 229 on the Stafford Tax Map. It is about 160' by 140' and contains a wooden building. It adjoins a smaller lot which Schultz uses for selling and repairing cars under the trade name Manahawkin Auto Sales. He did not provide notice of the hearing to neighboring landowners.
In light of the issues projected and our Disposition of the case, the testimony before the board need not be detailed. The applicant and five supporting witnesses testified that the use of Lot 13 for the display and sale of automobiles existed long prior to the adoption of the Stafford zoning ordinance prohibiting such use and continued to the present. The only witness in opposition, the Township's Deputy Code Enforcement Officer, testified that the lot had not been used for such purposes for approximately three years preceding the application. On August 9, 1995, the zoning board adopted a resolution granting Schultz most of the relief requested, but providing these limitations:
2. That the use found to be exempt is specifically limited to those activities testified to and established before the Board on July 12, 1995, and specifically does not include the service of or repair of any motor vehicle whatsoever, nor does the use in any way extend to any structures located on the subject premises, nor does the use extend to any improvements of the premises whatsoever. This interpretation is further subject to the following conditions:
a. No automobile shall be parked by the applicant within the right-of-way of Bay Avenue or any closer than ten feet from the existing edge of pavement of Bay Avenue, whichever is further from the roadway;
b. No storage of junk cars or parts of junk vehicles of any type of junk or similar items as defined in the ordinances of Stafford Township shall be permitted at any time on the subject premises.
The well-established legal principles governing nonconforming uses are summarized in Belleville v. Parrillo's, Inc., 83 N.J. 309, 315-17, 416 A.2d 388 (1980), where the Court made this observation:
The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity. Under that restrictive view our courts have held that an existing nonconforming use will be permitted to continue only if it is a continuance of substantially the same kind of use as that to which the premises were devoted at the time of the passage of the zoning ordinance. In that regard nonconforming uses may not be enlarged as of right except where the change is so negligible or insubstantial that it does not warrant judicial or administrative interference. Where there is doubt as to whether an ...