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Township of Stafford v. Stafford Township Zoning Board of Adjustment

May 18, 1998

TOWNSHIP OF STAFFORD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STAFFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND HUGH SCHULTZ, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

SYLLABUS

(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).

Township of Stafford v. Stafford Township Zoning Board of Adjustment and

Hugh Schultz (A-78-97)

Argued January 21, 1998

Decided May 18, 1998

GARIBALDI, J., writing for a unanimous Court.

The issue in this appeal is whether a municipal governing body has

standing to challenge the certification of a nonconforming use by the

zoning board and, as a threshold inquiry, whether an applicant seeking

certification of a nonconforming use, pursuant to N.J.S.A. 40:55D-68

("Section 68"), must comply with the notice requirements of N.J.S.A.

40:55D-12 ("Section 12") of the Municipal Land Use Law ("MLUL"). In a

companion case, Paruszewski v. Township of Elsinboro, also decided

today, the Court held that, in certain limited circumstances, a

municipal governing body has standing to appear before the zoning board

of adjustment to oppose a nonconforming use certification petition.

Hugh Schultz owns property at Lot 12 in Stafford Township on which

he operates his business, Manahawkin Auto Sales. He also used adjoining

Lot 13 to display and store cars. In January 1995, a Deputy Code

Enforcement Officer served Schultz with a violation notice, informing

him that his car business was being operated on Lot 13 in violation of

the Stafford code. In response to that notice, Schultz filed an

application with the Stafford Township Zoning Board of Adjustment

requesting certification that the sale, purchase and repair of

automobiles on Lot 13 was a pre-existing nonconforming use.

The Zoning Board held a public hearing in July 1995 to consider

Schultz's application. However, Schultz never provided notice of that

hearing to owners of property within 200 feet of Lot 13 and did not

publish a notice in the appropriate newspaper. At the hearing, no one,

with the exception of the township deputy code enforcement officer,

appeared in opposition to Schultz's application. The Township of

Stafford attributes that fact to lack of notice. Based on the testimony

presented, the Zoning Board approved Schultz's application, finding his

use of Lot 13 for storage and display of cars to be a pre-existing

nonconforming use.

In August 1995, the Township filed a complaint in lieu of

prerogative writs in Superior Court, Ocean County. The Zoning Board

subsequently joined in the Township's brief, Concurring that its own

decision should be overturned on appeal. The Law Division found that

the Township had no standing because "the matter before the Board was so

narrow in scope" that there was no actionable risk to the character of

the district.

The Appellate Division reversed and vacated the Zoning Board's

certification, without prejudice to Schultz's right to reapply to the

zoning board on proper notice to the neighboring landowners. The panel

specifically found that the Board had no jurisdiction to hear Schultz's

nonconforming use certification application in the absence of notice to

neighboring landowners within 200 feet of Lot 13. ...


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