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Karas v. Foss


April 2, 2008


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4851-06.

Per curiam.


Argued February 5, 2008

Before Judges Fuentes, Grall and Chambers.

Plaintiff, Mary Karas, appeals from a judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of the Borough of Closter. The Board found that defendant, George Foss, had not abandoned his nonconforming use of his property.

In this appeal, plaintiff argues that the trial court erred, because the Board improperly disregarded evidence showing that defendant had allowed two potential purchasers of the property to seek permission to use the property in a manner inconsistent with the nonconforming use. According to plaintiff, such evidence is sufficient to establish defendant's intent to abandon the nonconforming use. We reject this argument and affirm.

These are the facts. In 1955, defendant purchased real property located at 563 Piermont Road in the Borough of Closter (the "Foss property"). The property contains a one-story, 2600 square foot building, located at the southeast corner of the property, set back about forty-four feet from Piermont Road. Plaintiff owns property contiguous and to the south of the Foss property.

On December 19, 1940, the Borough of Closter adopted an ordinance that placed both the Foss property and the plaintiff's property within a Residential Area A-Zone. This zone permits single family dwellings and other non-commercial uses. The Foss property had continuously been operated as an automobile service station since 1930. This use of the property was therefore grandfathered as a valid pre-existing nonconforming use.

Automotive service businesses continued to operate on the Foss property, without interruption, until 1999. Although the property's precise use varied over the years, its core use remained related to automobiles. The property was used to sell gasoline, perform automotive body work and service, and sell automobiles. The building historically contained two tenants. In 1999, the building housed two separate auto repair tenants, Piermont Auto Service and Mobil Car Wash; these businesses ceased operating that same year.

In or before 1999, defendant entered into negotiations to sell the property to Commerce Bank (Commerce). The sale was contingent upon Commerce obtaining a use variance to construct a bank with a drive through facility on the property. On October 27, 1999, Commerce filed its application with the municipality. On October 4, 2000, the municipal zoning officer issued defendant a zoning permit certifying the pre-existing use of the Foss property limited to "sales, service and repairs of autos and trucks, and the sale of all automotive and related products, also rental of auto and trucks." This triggered Commerce's appeal to the Zoning Board of Adjustment. After several public hearings, the Board denied Commerce's application on December 27, 2000.

On August 29, 2001, the zoning officer issued defendant a zoning permit to recommence automotive use. The permit stated that property could be used for the pre-existing nonconforming use of "(sales, service and repairs of autos/trucks) and the sale of all automotive related products, also rental of auto & truck."

In 2002, defendant began negotiations to sell the property to Parkway Toyota (Parkway). Parkway applied for a zoning permit that would allow it to use the property for the storage and service of new automobiles, which would be sold off-site. The zoning officer granted only a limited permit to use "2700 square feet for primary use as automotive repair business for cars and trucks." Parkway appealed the decision to the Zoning Board. After several hearings, the Zoning Board affirmed the zoning officer's decision, finding that Parkway's proposed use was inconsistent with the property's pre-existing nonconforming use.

In its January 22, 2003 resolution the Board concluded that Parkway's proposed use was qualitatively different, because its principal use involved warehousing, and not servicing motor vehicles. The Board also noted that, if approved, the proposed use would increase the number of vehicles on the site from approximately fifty vehicles to 116 vehicles.

The estate of plaintiff's late husband appeared as an objector at these hearings. The estate contended that, by allowing Commerce to apply for a use variance, defendant had abandoned the pre-existing nonconforming use. As the following passage from the Zoning Board's resolution makes clear, the Zoning Board's decision specifically addressed and rejected this argument.

1. Counsel for the Estate of James Karas, Mr. Osmun, contends that there has been an abandonment of the pre-existing, nonconforming motor vehicle service station and related automotive uses. He relies upon Section 200-66 of the Borough Code (Zoning ordinance), which provides that whenever there shall be a discontinuance or cessation of a non-conforming use for a period of one year, such non-conforming use is deemed abandoned.

2. Board counsel advises that, at best, the Ordinance can only create an inference of abandonment. Upon the advice of counsel, no statutory authorization exists for the Ordinance to establish a specific time period constituting an abandonment. It must be decided on a case by case basis.

3. Non-use does not, in and of itself, establish an abandonment. Rather, abandonment of a non-conforming use requires the concurrence of two factors: (1) an overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in continuing the use, and (2) an intention to abandon.

4. Counsel has given the example of a building in Saddle River previously used for a stable, but not so used for 27 years. The owner had, however, maintained the premises in the form of a stable and had not used the property for any other purpose. The stable use was held not to have been abandoned in a 1996 Appellate Division case.

5. The subject property has a long history of automotive service-related uses. While in the ownership of the current owner, George Foss, since 1955, the property has been used as a gasoline service station, for sales of automobiles and trucks on a limited basis, for automobile rentals (again on a limited basis) and for automobile body work. The Zoning permits of October 4, 2000 and August 29, 2001 (Exhibits L and M appended to Exhibit A-3) evince the property owner's intention to continue rather than abandon the non-conforming use. The balance of the documentation submitted with Exhibit A-3 relates to the single building (now closed up) and paved area located on that part of the Property designated as Lot 4 at the southwest corner of the intersection of Piermont Road and Homans Avenue. This documentation is consistent with the property's prior use as a gasoline station and small auto body shop; i.e., permits issued for alteration of a "garage building", installation of gasoline tanks, repaving of a driveway area, painting of the building, replacement of overhead doors, $80,000 alteration to the building, certificate of continued occupancy for use as a service station, certificate of continued occupancy for use as an auto body repair shop, Bergen County Planning Board site plan approval for a "service garage", and Closter Planning Board site plan approval for "site work and building refurbishment to an existing structure."

6. There were no proofs to the contrary, with one exception. Counsel for the objector offered the application of Commerce Bank/North to acquire the site for a branch bank, and the resulting memorialization resolution of the Board denying that application (Exhibit O-3). The objector argued that the Foss's consent to that application evinced an intention by Foss to abandon the nonconforming automotive use.

The owner's sale to the Bank was contingent however, upon Board approval and cannot be probative of abandonment with that contingency. Further, language in the Resolution at paragraph 10 that automotive services uses had been "discontinued" begs the question of whether abandonment was intended. As first stated, non-use or discontinued use does not, in and of itself, establish an abandonment. On the basis of the foregoing the Board concludes that the prior nonconforming use of the subject property was not abandoned.

In 2003, after approximately four years of non-use, Closter Friendly Service became a tenant of one-half of the building located on the Foss property. The other half of the building remained vacant and unused.

In October 2005, Richard Schmidt, on behalf of defendant, applied to the Borough of Closter for a zoning permit to use the vacant portion of the property as a service station for commercial trucks and heavy equipment. On October 21, 2005, the municipal zoning officer denied the application, stating that the issue needed to be presented to the Zoning Board. The letter stated, in pertinent part, as follows:

The applicant's description and content in the application along with the supporting documentation is too ambiguous to ascertain if this is protected by any prior approvals of the nonconforming use; the details of the project and the multiple uses approved for the site must be presented to the Zoning Board with testimony under oath.

On December 15, 2005, defendant and Schmidt appealed the zoning officer's decision to the Board. At the appeal hearing, Schmidt claimed the zoning officer should have granted the permit, because the proposed use was a continuation of the valid nonconforming use of the property as an automobile service station and repair business.

Plaintiff appeared at this meeting as an objector. Through counsel, plaintiff again argued that Foss's right to continue the nonconforming use had been relinquished through abandonment. According to plaintiff, by allowing Commerce and Parkway to seek permission to use the land in a manner inconsistent with the nonconforming use, Foss had manifested his intention to abandon his nonconforming use.

The Board again rejected this argument, adopting a resolution directing the issuance of a zoning permit allowing defendant to continue to use half of the property as a gasoline service station and lease the remaining one-half for use as a service station for trucks and heavy equipment. The resolution concluded as follows:

There was no abandonment of the potential of multiple tenancies, despite the two failed applications to develop the site for single users- Commerce Bank/North in 2000 and H. Dennis Lauzon t/a Parkway Toyota in 2003.

The Board incorporates by reference its findings of fact and conclusions of law on the subject of abandonment generally in Exhibit A-4, the Resolution of the Zoning Board of Adjustment, dated January 22, 2003, relating to H. Dennis Lauzon t/a Parkway Toyota. Since 2003, one-half of the building has been used by Closter Friendly Service, under a Certificate of Continued Occupancy issued November 9, 2005. The other half is unused.

Plaintiff appealed the Board's decision to the Law Division by way of an action in lieu of prerogative writs. Plaintiff argued that the Board failed to consider whether the proposed use of the property was an impermissible intensification of the pre-existing use as an automobile service station. Plaintiff conceded that multiple uses were permitted on the property for many years, but nevertheless argued that the nonconforming use had been abandoned through years of non-use and attempts by Foss to change the character of the property.

Finding that the record was insufficient to determine whether the proposed use was an impermissible intensification of the pre-existing use, the trial court vacated the Board's decision on this limited issue, and remanded the matter to the Board for such further hearings as may be required. New hearings would only be necessary, however, if Foss or Schmidt chose to again appeal the zoning officer's decision to the Board within sixty days.

On the question of abandonment, the court upheld the Board's findings and conclusions of law.

This whole issue of abandonment revolves around whether or not a prior nonconforming use was abandoned. And it remains unclear to me whether or not the plaintiff, the objector here, has conceded some level of nonconforming use status. It may be that I'm over-reading the positions here, and it may very well be that the plaintiff in fact agrees that automotive repairs is a nonconforming use protected. That would be then the benchmark.

But that's not even clear to me because why else would there be all the arguments of the plaintiff's position of prove your case by demonstrating that which was there before the 1940 ordinance.

But the plaintiff says that even if it was an automotive use, it was abandoned by the time the instant applicant got there and probably was abandoned even before [Closter] Friendly Service got there. And if it's not the entire abandonment, at least it's the multiple use abandonment.

The idea being that the property owner has both overtly not used the property, at least in one-half of it, for what arguably is a protected use, but has manifested its intention to abandon by dint of facilitating and encouraging a change of use through at least one and maybe two applications to the Board of Adjustment for variances; the first application relating to a clearly defined change in use from automotive repair, service station facility, to a bank. The other two [sic], what arguably was a -- an affiliated, but not identical use, that having to do with the Toyota storage and fit-up of cars for a remote location for the sale of those vehicles.

The board concluded on that issue, this abandonment issue, that there was no abandonment of the potential multiple tenancies, and addressed the question in terms of the right of a property owner to expose the property to both the marketplace and the opportunity for others to do something else with the land, with the contingent right and the provisional right to take the property back and continue the use if it fails.

And although the board was working with documents and/or stipulated fact, I think that the board cannot be said to have been arbitrary and capricious and unreasonable on the question of abandonment.

Abandonment is always a mixed question of fact and law. And by the way, I find the out of state cases unpersuasive in terms of New Jersey's jurisprudence of nonconforming uses. That is, a strong protection, yet a strong policy to, where appropriate, eliminate them. And New Jersey's public policy of encouraging marketability and alienability, allowing the exposure to the marketplace of property, seems to me to trump the idea that simply by doing that, that is, in combination with everything else here, indicative of an envincement of an intent to abandon.

Whether the decision is wise or unwise is not for me to determine, but I think that the board had sufficient data and information upon which to conclude that, at least as to multiple tenancies, there was no abandonment.

Defendant did not seek any further relief from the Board pursuant to the Court's remand order. Thus, the sole issue before us is whether there has been an abandonment of the pre-existing nonconforming use of the subject property or the vacant portion of the property.

The Municipal Land Use Law specifically recognizes the concept of a pre-existing nonconforming use. Under N.J.S.A. 40:55D-5, a nonconforming use "means a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." "Nonconforming uses 'may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.'" S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford, 373 N.J. Super. 603, 613 (App. Div. 2004) (quoting N.J.S.A. 40:55D-68). N.J.S.A. 40:55D-68 allows a property owner to continue a nonconforming use indefinitely. Id. at 622 (citing United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152-53 (1952); State v. Accera, 36 N.J. Super. 420, 423 (App. Div. 1955)).

The right to continue a nonconforming use terminates if the property owner abandons the use. Id. at 613 (citing Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16 (Ch. Div. 1969)). The test to determine if a property owner abandoned a nonconforming use is a two pronged subjective test. Id. at 613-14 (citing Bobinski, supra, 108 N.J. Super. at 16-17). There must be "(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." Ibid. The owner has the burden of proof by a preponderance of evidence to show "the use is a continuing and definite intention." Id. at 614 (citing Villari v. Zoning Bd. of Adj. of Deptford, 277 N.J. Super. 130, 137 (App. Div. 1994)).

In determining whether a property owner has abandoned a nonconforming use, the courts have to balance the fact that "[a] nonconforming use is a valuable property right" with the fact that "[t]he clear policy of this State is to eliminate nonconforming uses as quickly as is compatible with justice." Ibid. (citing Scavone v. Mayor and Council of Totowa, 49 N.J. Super. 423, 428 (App. Div. 1958); Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980)).

"Mere passage of time during a cessation of active use does not constitute abandonment"; but the length of cessation is a relevant factor in the overall determination. Id. at 617. "Failure to conduct any activity other than that embodied in the nonconforming use supports [the property owner's] asserted intent not to abandon." Ibid. The courts have found there was no abandonment when there has been a cessation of active use for years. See e.g. Children's Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super. 350, 357 (App. Div. 1996) (non-use of office building for four years did not constitute abandonment); Bobinski, supra, 108 N.J. Super. at 6, 18 (cessation in use of barnstable for twenty-seven years did not constitute abandonment when there had been some active maintenance of the structure).

The courts have held there was an abandonment when there existed "objective manifestations of the owner's intent to abandon the nonconforming use." S & S Auto Sales, supra, 373 N.J. Super. at 615 (citing Tp. of Fairfield v. Likanchuk's Inc., 274 N.J. Super. 320,329.) In S & S Auto Sales, the court cited several cases, where courts have found overt actions evidenced abandonment, despite the contrary testimony of the property owner:

[C]courts have found circumstances that negate an expressed intent to continue a nonconforming use. See, e.g., Parrillo's Inc., supra, 83 N.J. at 316 (change in use from restaurant to discotheque terminated nonconforming use); Villari, supra, 277 N.J. Super. at 136-37 (change in use for at least seven years from raising pigs to growing crops, during which fence needed for raising pigs was not maintained, terminated nonconforming use); See also Beyer v. Mayor and Council of Baltimore City, 182 Md. 444 (1943) (disposal by slaughter house operator of all necessary machinery, removal of smokestack, and use of building for storage terminated nonconforming use); Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931, 937 (1948) (lease of premises for a use different from the nonconforming use constitutes abandonment). [Id. at 614-15.]

Here, plaintiff acknowledges that no New Jersey court has held that a request by a third party potential purchaser to alter the approved nonconforming use of property constitutes an abandonment. Plaintiff cites three cases from other jurisdictions in support of her argument that allowing potential purchasers of the property to apply for a variance or permit constituted abandonment.*fn1 We decline to apply these foreign, non-binding precedents, because our own case law does not suggest any support for plaintiff's contention.

Our case law is clear on one point. In reviewing the actions of local land use boards, we are bound to give substantial deference to their decisions. Id. at 615 (citing Medical Ctr. v. Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001)). Their actions are presumed valid, and the court will only interfere if the challenger shows that a board's decision was arbitrary, capricious or unreasonable. Ibid. (citing New York SMSA Ltd. P'ship v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)). As long as "the board's decision is supported by substantial evidence, a court may not interfere." Id. at 616 (citing Kramer, supra, 45 N.J. at 296).

Here, the Board found "[t]here was no abandonment of the potential multiple tenancies, despite the two failed applications to develop the site for single users - Commerce Bank/North in 2000 and H. Dennis Lauzon t/a Parkway Toyota in 2003." This conclusion is well-supported by the competent evidence. As such, we find no legal basis to conclude that the action taken by the Board was arbitrary, capricious, or unreasonable.


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