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Speedex Realty v. Franklin Township Land Use Board

October 18, 2007

SPEEDEX REALTY, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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