Posted by: Patricia Salkin | November 14, 2011

NJ Supreme Court Holds Nonconforming Use May Be Enlarged by a Variance

In 2002, the General’s Group (hereinafter General’s) sought to build a hotel in Little Ferry. They proposed merging several existing lots into two new lots, Lots 8.01 and 8.02. The hotel would be on the waterfront of Lot 8.02, but this lot has no highway access. Accordingly, General’s proposed building a driveway on Lot 8.01 that would continue across a corner of an adjacent lot, Lot 11, which is owned by the same Principals that own General’s. The driveway would then provide highway access to the hotel. Lot 11 is nonconforming to Little Ferry’s zoning regulations as it is almost 50,000 square feet below the minimum lot size in the Highway and Regional Business Zone (B-H Zone), and it houses a pre-existing nonconforming auto-body shop. 

The lots are located in the B-H Zone. Only two uses are permitted in this zone: regionally oriented retail shopping centers and theaters and auditoriums. The Little Ferry Code (hereinafter The Code) also provides for four conditionally permitted uses in the B-H Zone: Professional, business and governmental offices, banks and savings-and-loan institutions, post offices, and hotels and motels. The Code does not address driveways in the B-H zone. However, it defines accessory use as “a use which is customarily incidental and subordinate to the principal use of a lot or a building and which is located on the same lot.” 

In 2002, General’s applied for site plan approval and certain variances for Lots 8.01 and 8.02.  Nuckel  objected to approval of the plan, but the Little Ferry Planning Board (hereinafter Board) approved the application in 2003 on the  condition that General’s break ground within one year, which General’s subsequently failed to do. After the Board approved the plan, Nuckel filed an action in lieu of prerogative writs. In 2006, the trial court remanded the matter to the Board to: (1) consider if it would have approved the plan without the one year condition; (2) consider site plan approval of a riverfront walkway on Lot 8.02 as required by the New Jersey Department of Environmental Protection; and (3) allow General’s to file an application for site plan approval on Lot 11. 

In June 2007, General’s filed an application for site plan approval for the riverfront walkway and an application for site plan approval for Lot 11. In May 2008, the Board, which had new and old members, determined that it would have approved the original application even without the one year condition and approved the applications for site plan approval for Lot 11 and the riverfront walkway. The newly-appointed members of the Board did not certify that they had read the transcripts or listened to the tapes from the proceedings on the original application in 2003. Also at this meeting, counsel for the Board stated that the Board’s consideration should be limited to issues of ingress and egress. 

In July 2008, Nuckel again filed suit. In December of that year, the trial court upheld all the Board’s actions with the exception of the site plan approval for Lot 11. In regards to that application, the trial court determined that two use variances were necessary under the Municipal Land Use Law because the driveway would constitute a new principal use on the undersized lot; and it would be an expansion of a nonconforming use. The trial court also determined the Board’s counsel had improperly limited consideration to issues of ingress and egress and remanded the matter to the Board for a broader consideration of the site plan approval. 

Both parties appealed and the Appellate Division reversed and remanded the matter. Again both parties appealed and the Supreme Court of New Jersey granted both petitions. The issues on appeal were: (1) whether the driveway is an accessory use or a primary use; (2) if it is a primary use, will it enhance the effect of the pre-existing nonconforming use; (3) must the new board members certify that they have read the transcripts or listened to recordings of the original proceedings; and (4) should consideration of the site plan be limited to ingress and egress. 

The Supreme Court concluded that since the Code defines an accessory use as being on the same lot, the driveway cannot be considered an accessory to the hotel on Lot 8.02. The Court concluded the driveway is a second principal use and is therefore prohibited by the Code and therefore a variance is required.  With respect to the nonconforming use, the Court noted that, though nonconforming uses are generally limited, they can be enlarged using the variance procedure. The Court stated that nonconforming uses are not to be enlarged unless the change is so negligible or insubstantial that it does not call for judicial or administrative interference. The Court remanded this issue to the Board to determine if the new proximity between the nonconforming auto-body shop and the proposed driveway will enhance the effect of the nonconformity. In addition, in determining if a variance is required, the Court said that the Board should assess whether the proposed driveway will be an insignificant alteration in the status quo. The Supreme Court also held that the newly-appointed board members are required to read the transcripts or listen to the tapes of the original proceeding in accordance with NJSA 40:55D-10.2 which states that a member of a municipal agency, who was not a member at the time in question, is eligible to vote on the matter despite his/her absence so long as he/she certifies in writing that he/she read the transcripts or listened to the recordings of the original proceeding.  Lastly, the Court held that the limitation of consideration of the application for site plan approval to ingress and egress was error as neither the MLUL nor the Code put such limits on the Board’s consideration. The Court remanded the matter to the Board for consideration of the site plan application in accordance with the principals herein. 

Nuckel v. Borough of Little Ferry Planning Bd., 26 A3d 418, 208 NJ 95 (6/16/2011) 

The opinion can be accessed here

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