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Karas v. Foss

April 2, 2008

MARY KARAS, PLAINTIFF-APPELLANT,
v.
GEORGE FOSS, RICHARD SCHMIDT, ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER, LEONARD SINOWITZ, IN HIS CAPACITY AS ZONING OFFICER FOR THE BOROUGH OF CLOSTER, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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