You be the Judge: Abandonment Of Non Conforming Use

YOU BE THE JUDGE

NON-CONFORMING USE: HOW SHOULD ABANDONMENT BE DETERMINED?

If you are involved in the development of real estate, this may be of interest to you.

The law recognizes that a lawful non-conforming use can be continued despite later changes in municipal zoning laws. But it also recognizes that a lawful non-conforming use can be abandoned so that subsequent zoning laws become effective regarding the use of property.

In the recent case of Berkeley Square Association, Inc. v. Zoning Board of Adjustment of the City of Trenton, A-2389-08T1, the Appellate Division dealt with a plan to rehabilitate a 20 unit residential apartment complex. A neighborhood association opposed the plan, arguing that the non-conforming status of the complex had been lost as a result of a tax foreclosure, vacancy for more than 18 months and disrepair.

The zoning board and the trial court ruled for the property owner, finding the plaintiff association had failed to satisfy its burden of persuasion that the non-conforming use was abandoned.

The association appealed, arguing that the property owner had the burden of persuasion to prove that the non-conforming use was continued.

YOU BE THE JUDGE: Who has the burden when a non-conforming use is allegedly abandoned?

The Appellate Division found that under the Municipal Land Use Law (MLUL), the protection of non-conforming uses has constitutional implications. Therefore, a municipality could not lawfully enact an ordinance that non-conforming status was lost after the passage of a particular period of time without an intent to abandon.

The panel also concluded that under the MLUL the property owner ultimately had the burden. However, the issue of whether a non-conforming use has been abandoned cannot arise until the existence of the non-conforming use initially has been established. Therefore, the following protocol should be followed: Initially the property owner must demonstrate the existence of the non-conforming use; thereafter the objector must come forward with sufficient evidence of temporal or physical abandonment to require the property owner to sustain its ultimate burden on the subject.

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