Archive for the tag 'Land Use Law'

Applicant has burden to prove that it did not abandon a prior non-conforming use

SteveK November 18th, 2009

In Beverly Square Association, Inc. vs. Zoning Board of Adjust of the City of Trenton et al., the New Jersey Appellate Division held that a property owner, applicant for permit to renovate a prior non-conforming use, has the ultimate burden of proof that the prior use had not been abandoned. In the case, the defendant was issued a permit to renovate 20 residential apartments deemed by the Trenton zoning officer to be a preexisting non-conforming use.  Beverly Square Association appealed the decision to the Trenton Zoning Board of Adjustment, arguing that the defendant’s nonconforming use had been abandoned (i) after a tax foreclosure on the property, and (ii) as a result of the 18-month vacancy and state of disrepair. The Board affirmed the decision of the zoning officer, which was appealed to the Superior Court. The Court reversed finding that the property owner failed to prove that the use had not been abandoned.

 The Appellate Court determined that the objector must initially come forward with sufficient evidence of temporal or physical abandonment; however the property owner had the ultimate burden of proof as to the intent to resume the prior non-conforming use of the property within the 18-month period provided in the municipal ordinance. The Court remanded the case to trial court for the matter to be considered in with the clarification on the burden of proof.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in zoning, land use and local government matters. For additional information about the matters in this bulletin or in the firm’s land use, zoning and municipal please contact Jeffrey B. Lehrer, Esq.

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Challenge by Farmers to Highlands Act Rejected by Appellate Division

SteveK September 10th, 2009

         On September 3, 2009, in County of Warren v. State of New Jersey , the Appellate Division upheld the validity of the master plan adopted by the Highlands Water Protection and Planning Council against an argument by farmers that the council lost its authority to adopt the plan by failing to do so within the time set forth in Highlands Preservation Act. The Court also rejected constitutional challenges to the Highlands Act based on equal protection arguments, including a claimed constitutional right to farm and the claim of unequal treatment to property owners with larger tracts of land. 

         The plaintiffs were farmers owning tracts of land ranging in size from 18 to 150 acres in the preservation area created by the Highlands Act. (The County of Warren did not participate in the appeal.)   The Court affirmed the dismissal of the challenge on the pleadings, noting that the New Jersey Supreme Court in OFP, L.L.C. v. State, 395 N.J. Super 571 (App. Div. 2007), aff’d o.b., 197 N.J. 418 (2008), had upheld the general constitutionality of the Act. The Appellate Court held that the failure of the Council to adopt a regional master plan within the time frame provided by the Act, was not fatal since the date provided was a “directory, rather than …a mandatory deadline that would invalidate a subsequent adoption of the plan.”  The Court also rejected the equal protection arguments finding that there is no fundamental right to farming; therefore, the state only needs to demonstrate a rational basis to satisfy equal protection requirements. The Court also reviewed the Right to Farm Act, which was specifically referenced in the Highlands Act, concluding that it did not create a fundamental right to farm, but rather provided protection to farmers from land use control by local and county authorities and nuisance suits by neighbors. The “rational basis test” also precluded the claim of unequal treatment of owners of larger parcels of property. Finally, the Court rejected the claims that there was no scientific basis for the “preservation zone” due to hydrogeologic conditions. The Court deferred to the legislative findings that focused on “other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora” in addition to “sites of historic significance.” The Court concluded that it would not second-guess the determination of Legislature in creating boundaries relating to the overall goals of the Act. Accordingly, the Court dismissed another challenge the Highlands Protection Act, allowing the Highlands Council to proceed to regulate and control development in the environmentally sensitive Highlands region of New Jersey.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental Department. 

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