Posted by: Patricia Salkin | August 6, 2012

NJ Superior Court Finds that Barn Apartments are Impermissible in Agricultural Zone and that No Nonconforming Use Existed

Defendant purchased a horse farm with a single residence and a separate horse barn with two residential apartments above. The Defendant was issued summonses charging him with violating the Zoning code as a result of the apartments. The defendant was found guilty by a municipal court judge and the defendant appealed, claiming that the barn was a protected non-conforming use.

A Non-conforming use is defined as a use or activity which was lawful prior to the adoption, revision or amendment of a zoning district in which it is located by reasons of such adoption, revision or amendment. The trial court determined that the defendant could not show that the apartments existed prior to the adoption of the 1952 ordinance that banned them. Under the 1952 ordinance, the apartments were not permitted.

The superior court reviewed the trial court’s decision de novo because determining the meaning of language in an ordinance is a question of law. The court sought to determine the governing body’s intent, finding that apartments above a barn are simply not buildings for purposes of farming. While housing for migrant labor may be allowed, the defendant acknowledges that this does not apply to the apartments. Other types of dwellings are simply not allowed and are expressly prohibited by later ordinances passed in 1979 and 1988. The court found that “defendant’s claim is flatly contradicted by the plain terms of the ordinance.”

State v. Schina, 2012 WL 1886599 (N.J. Super. Ct. App. Div. 5/25/2012)

The opinion can be accessed at: http://lawlibrary.rutgers.edu/collections/courts/appellate/a3780-10.opn.html


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