Dr. Tsoucaris, an endodontist, operated his practice in an office condominium unit. The office was a prior nonconforming use because it predated the zoning requirements for parking and access for offices in residential condominiums. Dr. Reich, a periodontist, leased space in Dr. Tsoucaris’s office, but had only practiced there on days that Dr. Tsoucaris did not practice at the office. Dr Reich sought a certificate of occupancy to practice in the office on days when Dr. Tsoucaris was also practicing, in otherwise unused operatories. The application was denied, and the denial was affirmed by the Zoning Board of Adjustment and the Superior Court on the grounds that Dr. Reich was seeking to expand a prior nonconforming use. The Appellate division reversed. It held that the applicable zoning did not regulate the number of practitioners in a professional office. Thus, because the size of the office and its use would remain the same, Dr. Tsoucaris was not proposing to increase the nonconformity. Furthermore, the Appellate Division found that other medical professionals had been permitted to add practitioners, and that the board’s denial was therefore arbitrary and capricious.
Reich v. Borough of Fort Lee Zoning Bd. Of Adjustment, 414 N.J. Super. 483, 999 A.D. 2d 507 (N.J. Super. Ct. App. Div. 7/29/2010).
The opinion can be accessed at: http://scholar.google.com/scholar_case?case=13643533610509318605&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Hat Tip to Robert Foster of Rackemann, Sawyer and Brewster for including this summary in the 2011 ALI-ABA Land Use Institute in Boston last month.
See his MA land use blog here: http://www.massachusettslandusemonitor.com