Posted by: Patricia Salkin | June 8, 2013

NJ Appeals Court Upholds Zoning Board’s Determination that Nonconforming Use of Body Piercing was Abandoned

This case involved a lessee’s desire to operate a body piercing business along with a tattoo parlor in “Zone A,” the amusement section of the Boardwalk in Wildwood, New Jersey. The property involved in the dispute had been used as a tattoo and piercing parlor since 1991 when it was known as “24th Street Tattoos.” Each activity- the body piercing and tattoo artistry- were required to be licensed separately each year. In 1994, the City passed an ordinance prohibiting tattooing and body piercing in Zone A. In 2004, the lessee of the property applied for a tattooing license but not a body piercing one. Following the 2004 application, no application was filed in 2005 and a new lessee, the plaintiff in this matter, filed for a tattooing license in 2006. For the next 3 years, 2007, 2008, and 2009, the plaintiff filed for licenses for both tattooing and body piercing but was only granted tattooing permits each of those years. The Court stated that in 2010, after applying for both licenses again, the plaintiff was “mistakenly” granted a body piercing license. In 2011, the plaintiff again filed for both licenses but was denied the body piercing license after a zoning officer determined the use was nonconforming and the prior nonconforming use had been abandoned.

At a hearing to review plaintiff’s application, he presented two witnesses to testify that his successor-in-interest, Florence Harris, did not have the intent to abandon the body piercing use, but was having significant staff issues. The two witnesses, the owner of the property and a planning expert, both testified to the staffing issues and told the board that Ms. Harris had intended to continue the piercing operation but was not in a position to do so. Ultimately, the zoning board rejected the plaintiff’s application after finding that Mrs. Harris has indeed abandoned the piercing operation by not applying for renewal of her piercing license while she applied for the renewal of the tattooing license.

The Plaintiff filed suit arguing that the board had acted in an arbitrary, capricious and unreasonable manner in finding the use had been abandoned. His argument was based upon his predecessor in interest’s desire to continue a use consistent with her primary business that makes her property more valuable. The trial court ruled in favor of the City  noting that in New Jersey the “The traditional test of abandonment requires the concurrence of two factors: (1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.” The Trial Court held that the board members acted reasonably in determining the previous leaseholder’s action of effectively walking away from the body piercing portion of the business, while keeping the tattooing running, indicated an intent to abandon and the failure to obtain the appropriate licenses “strongly implie[d] a release of an interest in the matter.”

On appeal, the plaintiff argued that (1) he proved by uncontradicting testimony and exhibits that there was no intent to abandon the body piercing and, (2) there is inadequate evidence to sustain a conclusion that there had been an intent to abandon the nonconforming use. The Court, while rejecting the plaintiff’s argument, held that the applicant must demonstrate that his or her intention to continue the use was continuing and definite by a preponderance of the evidence and that the intention must be substantiated by all of the circumstances surrounding the cessation of the use and must be supported of objective evidence and reasonable inferences from such evidence. The Court upheld the Trial Court’s determination that abandonment occurred before plaintiff began his operation, prior to his tenancy when his successor-in-interest failed to renew the body piercing license. The Court held the failure to renew the license was an “objective manifestation” of the prior lessee’s intent and carried a sufficient implication that the prior lessee neither claimed nor retained any interest in the nonconforming use of body piercing.

Dazar Inc., t/a Love Rock Tattoo v. City of North Wildwood Zoning Board of Adjustment, 2013 WL 1890365 (N.J. Super. A.D. 5/8/2013)

The unpublished opinion can be accessed at http://www.njlawarchive.com/archive/a0206-12.pdf


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