RUTGERS CENTER FOR GOVERNMENT SERVICES. It s not a c. It s not a d. What is it?

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1 RUTGERS CENTER FOR GOVERNMENT SERVICES 17 th Annual Current Issues in Planning and Zoning Education Conference Friday, May 12, 2017 It s not a c. It s not a d. What is it? Presented by: Jameson Van Eck, Esq., Verde, Steinberg & Pontell, LLC Christa Anderson, Zoning Officer, City of Summit Zoning Boards Have Powers Beyond Granting C & D Variances N.J.S.A. 40:55D-68 Certificate of Pre-Existing Non-Conformity N.J.S.A. 40:55D-70 Regular Powers Appeals Interpretations C variances D variances N.J.S.A. 40:55D-70.1 Annual Reports N.J.S.A. 40:55D-76 Other Powers Site Plan Approval when D variance required Subdivision Approval when D variance required Issuance of permits related to the Official Map 1

2 Topics for Today s Seminar 1. Pre-Existing Non-Conforming Uses N.J.S.A 40:55D Merger Doctrine and Subdivisions - N.J.S.A. 40:55D-55 & - 56 Part 1 Pre-Existing Non-Conforming Uses & Structures What is a pre-existing, non-conformity? Non-conforming use (or structure) arises when a use that was once lawfully permitted becomes prohibited by subsequent zoning ordinance or amendment N.J.S.A. 40:55D-68 Non-conforming structures and uses: 1. Any nonconforming use or structure existing at the time of the passage of an ordinance may be... restored or repaired in the event of partial destruction thereof. 2

3 Key takeaways Non-conforming use or structure Lawfully existing at the time of passage of a zoning ordinance May be continued on the lot And may be restored or repaired In the event of partial destruction N.J.S.A. 40:55D-68 Non-conforming structures and uses: 2. [A]ny... person interested in any land upon which a nonconforming use or structure exists may apply in writing for the issuance of a certificate certifying that the use or structure existed before the adoption of the ordinance which rendered the use or structure nonconforming.... 3

4 Key takeaways for certificates Any person with an interest in land owner, prospective purchaser, prospective mortgagee Upon which a non-conforming use or structure exists May apply, in writing, to the zoning officer for a certificate Certifying that the use or structure lawfully existed before the adoption of the ordinance which rendered it non-conforming Other important points - certificates: W/in 1 year of non-conformity apply to zoning officer or zoning board for certificate After 1 year can only apply to zoning board Burden of proof on applicant/owner To establish nature of use at time of adoption of zoning ordinance, along with its character, extent, intensity and incidents include this information in certificate! 4

5 Other important points: MLUL says property owner has right to continue (ie., grandfathered) non-conforming use (or structure) in its original form, which runs with the land, unless: building totally destroyed (really, more than partial destruction ), or use abandoned Right to expand or intensify non-conforming use is strictly limited Remember, goal is to eliminate non-conformities Three main contexts implicating lawful, pre-existing non-conforming uses: 1. Expansion of non-conforming use D(2) variance 2. Repair or restore partially destroyed structure 3. Abandonment of non-conformity 5

6 Applications to expand or intensify nonconforming use D(2) variances Zoning officer has no power to grant permit to expand non-conforming use Zoning officer must deny application and refer to zoning board for d(2) variance Only zoning board can grant d(2) variance 6

7 Examples of expanding or intensifying non-conformity 1. Expand to boundaries of property a. Must obtain d(2) variance to expand operations on entire property (contrast w/ extractive industries) b. Seminal case - Kohl v. Fair Lawn dairy farm c. Without special reasons, a non-conforming use may not be extended and enlarged to the length and breadth of the entire lot d. Variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning e. Special reason, here, that dairy needed in immediate region was not substantiated before the board failed to meet burden of proof 7

8 Examples of expanding or intensifying non-conformity 2. Aesthetic improvements can sometimes justify expansion of non-conformity a. Owner sought to expand the bounds of his automobile junkyard-storage area, which is one component of his auto salvage, repair, and sale business b. As a trade-off for expansion of the storage area, proposed to move his autorepair and sale activities from the front of his property to the back, out of view from the street c. Special reasons aesthetic enhancements and increased recycling d. NJ Supreme Court Burbridge v Mine Hill - upheld d(2) variance and said: i. when expansion is minor, aesthetic enhancements may satisfy special reasons ii. aesthetic improvement entails more than mere beautification - the phrase refersto the overall visual compatibility of the use; it is inextricably entwined with notions of the general welfare Examples of expanding or intensifying non-conformity 3. Subdividing lot on which non-conforming use exists a. D(2) variance required to subdivide - Razberry s v. Kingwood b. Reduction in the size of property increases the nonconformity c. Here, decreasing the size of the lots (8 acres to 3 acres) results in a proportional expansion and intensification of the nonconformity 8

9 Examples of expanding or intensifying non-conformity 4. Expansion of structure in which non-conforming use occurs a. NJ Appellate Division held that increasing the size of a public dining room on second floor of a dwelling in a residential zone was an expansion of the non-conforming restaurant use, even though no external change to size and footprint of building - Heagen v Allendale b. This is why its important to know exact scope of use and structure at the time they become non-conforming i. court denied request to expand dining room from 20 x30 to 30 x44 ii. court denied request to allow dancing, because not part of original c. MLUL does not protect a non-conforming use unless it is substantially the same kind of use as that to which the premises were devoted at the time of the passage of the zoning ordinance Examples of expanding or intensifying non-conformity 5. Permitted use in pre-existing non-conforming structure a. Important to know distinction between non-conforming use and non-conforming structures b. Expansion of non-conforming structure (not use) only requires C variance, not d(2) variance c. However, if the expansion itself is conforming, no variance needed at all d. E.g., if structure violates front yard set back, but the expansion is sought into the rear yard, within the allowable building envelope, no variance (C or D) is needed and the zoning officer can issue the zoning permit 9

10 Three main contexts implicating lawful, pre-existing non-conforming uses: 1. Expansion of non-conforming use D(2) variance 2. Repair or restore partially destroyed structure 3. Abandonment of non-conformity 10

11 Applications to repair or restore partially destroyed structures Zoning officer has power to make determination in the first instance whether: 1. Structure is pre-existing and non-conforming 2. Whether the destruction was more or less than partial Much controversy, no real standard established by courts partial simply means something less than total; but the cases seem to indicate that total is often not what you think Applications to repair or restore partially destroyed structures Examples 1. Total destruction of one structure that was part of and connected to several other structures Krul v. Bayonne a. Appellate Division - less than partial destruction so rebuild b. Considered partial when compared to overall use and structures 11

Destruction of single, freestanding structure Lacey v.

Property owner was not allowed to rebuild an inn

structure was completely destroyed and an additional

Court found the inn was substantially totally

exceeded partial destruction structures Examples

Removed one of two freestanding dwellings Motley v

Two pre-existing dwellings on single lot zoned for

Home had fallen into disrepair and had not been

Removed one, leaving only the foundation and footings

12 Applications to repair or restore partially destroyed structures Examples continued Destruction of single, freestanding structure Lacey v. Mahr a. Property owner was not allowed to rebuild an inn (permitted use) destroyed by fire where: 69% of the structure was completely destroyed and an additional 14% was badly gutted b. Court found the inn was substantially totally destroyed by fire and therefore its destruction exceeded partial destruction Applications to repair or restore partially destroyed structures Examples continued Removed one of two freestanding dwellings Motley v Seaside Park a. Two pre-existing dwellings on single lot zoned for single family b. Home had fallen into disrepair and had not been occupied for several years c. Removed one, leaving only the foundation and footings d. Court found that destruction must surpass mere partial destruction e. Not allowed to rebuild more than mere partial destruction People often tear down old structure, then seek permit to replace -- no, must get variance now should get permission before 12

13 Applications to repair or restore partially destroyed structures Rule of thumb has arisen for partial destruction: At least the foundation and two walls remain Rule of thumb mentioned in Motley case, but not adopted as a legal standard Three main contexts implicating lawful, pre-existing non-conforming uses: 1. Expansion of non-conforming use D(2) variance 2. Repair or restore partially destroyed structure 3. Abandonment of non-conformity 13

14 Abandonment of Non-Conforming Uses Remember, MLUL says property owner has right to continue non-conforming use (or structure) in its original form, which runs with the land, unless: More than partially destroyed, or Abandoned Zoning officer has power, in the first instance, to determine abandonment if so, don t issue a permit Previously was based on objective criteria stoppage of use for a certain amount of time, typically over 1 year a. This has been overturned by the Courts b. Still in substantial number of zoning ordinances in NJ but these provisions no longer valid Abandonment of Non-Conforming Uses Now subjective standard - S&S Auto v. Stratford Gas station had to close due to financial difficultly and lack of employees However, owner continued to maintain, secure, insure and light the property and intended to open again in the near future About a year later, municipality refused to reissue business and sign licenses, claiming abandoned per their 1-year ordinance 14

Abandonment of Non-Conforming Uses Appellate

zealous time limits in ordinances invalidated

standard: (i) (ii) subjective intent, and

intent must be continuing and definite proof by

intended to restart operations and took steps in

Abandonment of Non-Conforming Uses Other key

Intervening permitted use always abandons

ZBA - pig farmer stopped using land for pigs for

15 Abandonment of Non-Conforming Uses Appellate Court decided: municipality was wrong and over zealous time limits in ordinances invalidated mere non-use for a period of time not enough new standard: (i) (ii) subjective intent, and objective overt conduct in furtherance of intent intent must be continuing and definite proof by competent evidence here, gas station continually intended to restart operations and took steps in furtherance court ruled not abandoned Abandonment of Non-Conforming Uses Other key points: 1. Intervening permitted use always abandons nonconforming use a. Villari v. ZBA - pig farmer stopped using land for pigs for 15 years and during that time grew alfalfa and corn abandoned b. must look to history of property from date it became non-conforming 15

occasionally use of one of his fields for landing

16 Abandonment of Non-Conforming Uses Other key points: 2. Use cannot be sporadic or occasional a. Paruszewski v. Elsinboro - farmer tried to argue that his occasionally use of one of his fields for landing his private plane, without an established runway, was preexisting non-conforming use b. Court held use was abandoned once use became occasional Abandonment of Non-Conforming Uses Other key points: 3. illegal expansion of non-conforming use is not abandonment of original scope of non-conformity Poulathas v. ZBA 16

17 Part 2 The Merger Doctrine & Subdivision of Land Definition of subdivision N.J.S.A. 40:55D-7: The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development. Merger Doctrine & Subdivision of Land No one may seek to sell a parcel of property without obtaining subdivision approval N.J.S.A. 40:55D-55 - subject to $1000 fine for each lot sold - municipality can seek to undo sale w/in 2yrs - municipality can seek injunction against sale 17

18 Merger Doctrine & Subdivision of Land Zoning officers need to be aware of the attempted subdivision of land by deed The owner of one lot sells only a portion of that lot without obtaining subdivision approval from the planning board The owner of two adjacent, undersized lots that are not a part of a subdivision (ie., merged lots, seeks to sell one of the lots (one developed, one not) The lot is divided by deed the metes and bounds in the legal description of the property references less than the whole The new owner makes an application to the zoning officer for some type of relief can you issue the permit or certificate requested? Does the municipality need to undo the sale? Merger Doctrine & Subdivision of Land The following are not considered subdivisions within the meaning of this act, if no new streets are created N.J.S.A. 40:55D-7: 1. divisions of land found by the planning board or subdivision committee thereof appointed by the chairman to be for agricultural purposes where all resulting parcels are 5 acres or larger in size 2. divisions of property by testamentary or intestate provisions 3. divisions of property by court order, including but not limited to judgments of foreclosure 18

19 Merger Doctrine & Subdivision of Land The following are not considered subdivisions within the meaning of this act, if no new streets are created N.J.S.A. 40:55D-7: 4. Consolidation of existing lots by deed or other recorded instrument and 5. The conveyance of one or more adjoining lots, tracts or parcels of land, owned by the same person or persons and all of which are found and certified by the administrative officer to conform to the requirements of the municipal development regulations and are shown and designated as separate lots, tracts or parcels on the tax map or atlas of the municipality Merger Doctrine & Subdivision of Land Certificate of subdivision approval N.J.S.A. 40:55D-56: The prospective purchaser, prospective mortgagee, or any other person interested in any land which forms part of a subdivision... may apply in writing to the administrative officer of the municipality, for the issuance of a certificate certifying whether or not such subdivision has been approved by the planning board. Such application shall contain a diagram showing the location and dimension of the land to be covered by the certificate and the name of the owner thereof. 19

20 Key takeaways for certificates: Any person with an interest in land owner, prospective purchaser, prospective mortgagee Which forms part of a subdivision May apply, in writing, to the zoning officer for a certificate Certifying whether or not subdivision was approved by the planning board Allowing them to sell the lot without violating the law! Other key information for certificates Certificate of subdivision approval N.J.S.A. 40:55D-56: Zoning officer must issue certificate within 15 days after receipt of written application and payment of fee Zoning officer must keep a duplicate copy of each certificate, consecutively numbered, including a statement of the fee charged, in a binder as a permanent record of his office 20

21 Other key information for certificates Certificate of subdivision approval N.J.S.A. 40:55D-56: Each such certificate shall be designated a certificate as to approval of subdivision of land, and shall certify: a. Whether there exists in the municipality a duly established planning board and whether there is an ordinance controlling subdivision of land adopted under the authority of this act. b. Whether the subdivision, as it relates to the land shown in said application, has been approved by the planning board, and, if so, the date of such approval and any extensions and terms thereof, showing that subdivision of which the lands are a part is a validly existing subdivision. c. Whether such subdivision, if the same has not been approved, is statutorily exempt from the requirement of approval as provided in this act. The Sale of Adjoining Lots in Common Ownership and the Merger Doctrine Legal question for zoning officer: Have adjoining lots owned by a single person or entity merged into one lot, such that their separate sale would constitute an unlawful subdivision of land? 21

22 The Merger Doctrine Loechner v. Campoli, 49 N.J. 504 (1967) and related case law on merger: The owner of two or more lots shown on an old filed map, filed prior to the time of the adoption of a land subdivision ordinance, may not sell less than the whole number of such lots which he owns without obtaining subdivision approval from the planning board they merge The Merger Doctrine Most common merger scenario today: (1) undersized (2) contiguous lots (3) in common ownership (4) fronting on the same street (5) with at least one being undeveloped (6) not part of an approved subdivision by planning board 22

The Merger Doctrine Merger does not apply

owners of contiguous lots created pursuant

subsequent to the planning act of 1953 b.

equitable or constructive ownership will

have conforming lots, not oddly shaped or

23 The Merger Doctrine Merger does not apply to: a. owners of contiguous lots created pursuant to subdivision approval by a planning board subsequent to the planning act of 1953 b. lots owned by distinct legal entities equitable or constructive ownership will not suffice Jock v. ZBA, 184 N.J. 562 (2005) c. back to back lots fronting on different streets or L shaped lots the purpose is to have conforming lots, not oddly shaped or irregular lots, which are disfavored The goal of merger is to bring lots into conformity 23

24 The Merger Doctrine What to do if lots have merged or someone seeks to sell without subdivision approval? 1. If sale has already occurred, contact municipal attorney and seek to set aside the sale must act within 2 years 2. If sale is imminent, seek injunction 3. If sale is not imminent, direct applicant to seek subdivision approval prior to selling lots 4. Do not grant any zoning permits or certificates 24

25 Example What if someone owned one parcel with five residences, are they entitled to sell each house separately? No, Urban v. Planning Board, 124 N.J. 651 (1991), they must seek subdivision approval before the planning board, who had the discretion to grant variances for the undersized lots. Final Thoughts When faced by merger questions or if you are unsure about issuing a certificate, always consider conferring with municipal attorney or zoning board attorney Issues of merger are nuanced and the law is subject to change Application of merger or denial of certificate often results in significant deprivation of private property rights 25

26 Thank you and have a nice day! Presented by: Jameson Van Eck, Esq. Christa Anderson 26

CHAPTER 21 Nonconforming Lots, Structures and Uses

CHAPTER 21 Nonconforming Lots, Structures and Uses Section 21.1 Description and Purpose The purpose of this chapter is to regulate nonconforming uses, structures, and lots as follows: A. The zoning districts