October 18, 2007
SPEEDEX REALTY, PLAINTIFF-APPELLANT,
FRANKLIN TOWNSHIP LAND USE BOARD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-451-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Skillman and Yannotti.
Plaintiff Speedex Realty appeals from an order entered by Judge John J. Coyle, Jr. on October 10, 2006, affirming a determination of defendant Franklin Township Land Use Board (Board), which denied plaintiff's application for certification of a pre-existing use. We affirm.
Plaintiff is the owner of property located at 2151 Route 57 in the Township of Franklin. The property is designated as Lots 2 and 2A in Block 17 on the Township's tax maps. In May 2004, plaintiff filed an application with the Board seeking certification of a nonconforming use pursuant to N.J.S.A. 40:55D-68. Plaintiff sought certification of a broad retail use not limited to that of a luncheonette, an accessory apartment, as well as a garage/repair area.
The Board considered the application at hearings held on June 2, 2004, July 7, 2004, and August 4, 2004. In a resolution dated September 1, 2004, the Board denied the application. The Board concluded that plaintiff failed to show that the alleged nonconforming uses had not been abandoned.
The Board observed that the evidence presented by plaintiff showed that from 1960 to some indeterminate time, the property had been used as a luncheonette, garage repair bay, with an apartment accessory to the business uses. These uses apparently had ended some time well before the 1980's. The property had been used into the 1980's as a motorcycle sales shop. However, since the time when plaintiff acquired the property, which was in 1996 or 1997, there was no evidence that the property had been used for the broad retail purposes for which certification was sought.
Plaintiff filed an action in lieu of prerogative writs in the Law Division, seeking review of the Board's decision. Judge Coyle heard the matter on September 29, 2006, and filed a written opinion in which he concluded that the Board's action was not arbitrary, capricious or unreasonable. An order was entered on October 10, 2006 memorializing the judge's decision. This appeal followed.
Plaintiff argues that the judge erred by upholding the Board's decision. Plaintiff contends that he satisfied his burden of proof and established that the nonconforming uses had not been abandoned. In support of this argument, plaintiff points to the evidence he submitted to the Board, which included certain tax records for the property; an inspection report prepared by Schaffer Structural Systems; and testimony of Helen Stangle, a former owner of the property.
"It is well-settled that a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). A decision of a land use board is presumed to be valid and the party challenging the decision has "the burden of proving otherwise." Id. at 81-82 (quoting New York SMSA Ltd. P'ship v. Bd. of Adjustment, 324 N.J. Super. 149, 163 (App. Div. 1999). A decision of a land use board will not be disturbed absent a clear abuse of discretion. Id. at 82 (citing Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988)).
Here, plaintiff sought certification of a nonconforming use pursuant to N.J.S.A. 40:55D-68. To obtain such relief, plaintiff was required to establish the existence of the nonconforming use as of the time the zoning regulation changed as well as continuation of the use thereafter. S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment, 373 N.J. Super. 603, 613 (App. Div. 2004). "Abandonment of a nonconforming use terminates the right to its further use." Ibid. (citing Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16 (Ch. Div. 1969)).
Abandonment of a nonconforming use requires a showing of "(1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment." Id. at 613-14 (citing Bobinski, supra, 108 N.J. Super. at 16-17). "The clear policy of this State is to eliminate nonconforming uses as quickly as is compatible with justice." Id. at 614 (citing Town of Belleville v. Parrillo's Inc., 83 N.J. 309, 315 (1980)). Consequently,
[a]n unsubstantiated assertion of intention cannot carry the day, for that would substantially impair, if not defeat, advancement of the elimination policy. Rather, the owner must demonstrate that the intention to continue the use is a continuing and definite intention, Villari v. Zoning Bd. of Adj. of Deptford, 277 N.J. Super. 130, 137 (App. Div. 1994), which must be substantiated by all of the circumstances surrounding the cessation. The owner bears the burden of proof by a preponderance of the evidence. [Ibid.]
In reviewing the Board's decision, Judge Coyle correctly applied these principles and properly determined that plaintiff had not carried its burden of showing that the nonconforming uses on the subject property had not been abandoned. In his opinion, the judge observed:
In the present case, although [p]laintiff has demonstrated that at the time of the adoption of the ordinance in question, a nonconforming use existed, [plaintiff has] failed to show that his prior nonconforming use was never abandoned. The Board has noted that during the 40 years since the adoption of the ordinance[,] the gas pumps had been sold and removed and the fountain in the luncheonette had been sold and removed. These facts constitute an overt act and demonstrate an intent to abandon the prior nonconforming use. In addition, [p]laintiff has failed to show that the Board had acted in an arbitrary, capricious or unreasonable manner when [it] found [p]laintiff had failed to show there was no abandonment in regards to the garage and the apartment.
Although facts may be present that would suggest there may not have been an abandonment of all uses on the premises, it is the burden of the [p]laintiff to show the Board acted in an arbitrary, capricious or unreasonable manner. The Board issued a formal Resolution outlining the basis for [its] decision and this Court for the reasons previously cited finds the decision of the Board was not an abuse of discretion nor did the Board act in an arbitrary, capricious or unreasonable manner.
We agree. Accordingly, we affirm substantially for the reasons stated by Judge Coyle in his written opinion.
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