Camara v. Board of Adjustment of Tp. of Belleville

• Decision Date: 23 February 1990
• Citation: 570 A.2d 1012,239 N.J.Super. 51
• Parties: Donna CAMARA, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BELLEVILLE, and Building Inspector of the Township of Belleville, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 51

239 N.J.Super. 51

570 A.2d 1012

Donna CAMARA, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BELLEVILLE, and Building Inspector of the Township of Belleville,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 18, 1989.

Decided Feb. 23, 1990.

Michael J. Viola, Nutley, for plaintiff-appellant.

Jon P. Campbell, Jersey City, for defendants-respondents.

Before Judges COLEMAN, MUIR and SKILLMAN.

The opinion of the court was delivered by

COLEMAN, J.H., P.J.A.D.

The broad issue posited in this appeal is how to terminate a nonconforming use or structure. The narrow issue is whether the termination of a business may precipitate the extinguishment of a nonconforming use or structure limited to the manner of suspension of a sign used to advertise the prior business.

In this action in lieu of prerogative writs, plaintiff seeks to overturn a decision of the Board of Adjustment of the Township of Belleville (Board of Adjustment) which denied a variance respecting the hanging of a sign advertising a professional office. Plaintiff also sought a determination that her refurbished sign was a continuation of a nonconforming structure and requested a permit to allow the sign to remain. The Board of Adjustment concluded that the termination of the prior business ended the right to display a sign which projected more than six inches beyond the building facade or one of its side walls. The Board of Adjustment denied plaintiff's application for a variance and refused to issue a permit allowing her new sign to remain. The Law Division agreed and we now affirm.

I

For approximately 30 years prior to 1985, Greylock Liquors was a tenant at 564 Union Avenue, Belleville, New Jersey. A projecting illuminated sign was hung to advertise the business. Although the sign was modified in the early 1970's, the sign remained when the liquor store terminated its business apparently in 1984 or early 1985. The sign contained the words "Pepsi" on the top and "Greylock Liquors" on the bottom. The sign was a nonconforming legal structure in the neighborhood retail district in that it projected more than six inches from the building facade or one of its side walls. After the liquor store terminated its use and occupancy of the premises, plaintiff, a chiropractic physician, moved her professional offices into the premises previously occupied by the liquor store. Plaintiff had the liquor store sign removed, refurbished and changed to read "Greylock Chiropractic Clinic." The refurbished sign was rehung in the identical manner as was the liquor store sign without permission from any zoning or construction code official.

There is conflicting evidence as to whether the new sign is identical to the liquor store sign except for the change in the name of the business on the facade of the sign. Plaintiff testified that it is substantially the same. Objectors from the neighborhood testified that the new sign is different in that it contains a different "angle," the lettering was changed from silver aluminum to bronze aluminum, and that it is bigger, brighter and wider. Although the Board of Adjustment did not articulate findings resolving conflicts in the evidence, a remand is unnecessary because our disposition is based on the manner the sign was rehung rather than the changes made to the sign.

On March 12, 1985, the Township's Construction Code officer, who apparently doubled as the zoning officer, advised plaintiff that her sign violated the local zoning "Ordinance # 2027, Article XVIII 'Signs' " in that her sign projected more than six inches beyond the building facade. Plaintiff was ordered to remove the sign in ten business days. Before the ten days expired, however, plaintiff advised the Construction Code official on March 21, 1985 that her sign was the same one used by the liquor store except for the change "to reflect the change of business." Apparently relying on the information contained in plaintiff's letter, the Construction Code official issued a permit on March 26, 1985 allowing the sign to remain in place.

The permit, however, was rescinded on August 6, 1985 by the Construction Code official because the Planning Board disagreed with his interpretation of the sign ordinance. Plaintiff was again directed to remove the sign within 10 days. On March 18, 1987, the Construction Code official denied plaintiff's request for a permit "to erect a projected wall mounted sign above [her] existing professional office ..." based on the sign ordinance. Plaintiff was advised that any relief from the sign ordinance should be sought from the Board of Adjustment. According to the transcript of the hearing before the Board of Adjustment, plaintiff sought a variance to create a new nonconforming use or structure or to enlarge or extend a preexisting nonconformity "to erect a projected wall mounted sign above existing professional office at 564 Union Avenue." See N.J.S.A. 40:55D-70d; Burbridge v. Governing Body of Tp. of Mine Hill, 117 N.J. 376, 379, 568 A.2d 527 (1990). By a unanimous vote, the Board of Adjustment denied the application for a variance.

Under Point I of plaintiff's appellate brief, she describes her application for the variance as "a limited extension of a non-conforming use." In support of her position, plaintiff argues that the sign provides a benefit for the neighborhood by its illumination thereby increasing safety in the neighborhood. She also argues "[t]he property is unique and an exceptional situation certainly does exist since [a] sign [that is] the same or similar to the one plaintiff has currently at the property has been in use for some eleven (11) years, uninterrupted" and that she only changed the name on the facade of the sign. Further, plaintiff contends that the denial of a variance was arbitrary, capricious and unreasonable because the benefits from the illumination substantially outweigh any detriments to the zoning plan. Finally, under Point III, plaintiff appears to argue that a variance was not required because the sign was a lawful nonconforming use or structure which predated the present sign ordinance and as such the nonconforming use or structure was continued by virtue of N.J.S.A. 40:55D-68. We have combined these points for disposition because they are interrelated.

II

We agree that if the nonconforming use or structure--the extent to which the sign projected from the building--continued following the termination of the liquor store business, there would be no need for a variance. We must therefore first review the controlling law before deciding whether the nonconformity abated when the liquor store business was terminated.

Our analysis begins with the well stated proposition that nonconforming uses and structures are disfavored in that they are inconsistent with the objective of uniform zoning. "[T]hey should be reduced to conformity as quickly as is compatible with justice." Belleville v. Parrillo's, Inc., 83 N.J. 309, 315, 416 A.2d 388 (1980); Hantman v. Randolph Tp., 58 N.J.Super. 127, 137, 155 A.2d 554 (App.Div.1959), certif. den. 31 N.J. 550, 158 A.2d 451 (1960); Heagen v. Allendale, 42 N.J.Super. 472, 478, 127 A.2d 181 (App.Div.1956). Municipalities are permitted to enact zoning ordinances which impose limitations upon nonconforming uses and structures. Parrillo's, Inc., 83 N.J. at 315, 416 A.2d 388 N.J.S.A. 40:55D-68, which was previously N.J.S.A. 40:55-48, provides that "[a]ny nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied...." But the Legislature did not intend to continue every nonconforming use or structure forever. Indeed, the statute directs that a nonconforming structure may be restored or repaired only "in the event of partial destruction thereof." Ibid. This statutory language has led our courts to conclude that a totally destroyed nonconforming structure may not be restored. See Avalon Home & Land Owners v. Bor. of Avalon, 111 N.J. 205, 211-212, 543 A.2d 950 (1988); Hay v. Bd. of Adj. of Bor. of Ft. Lee, 37 N.J.Super. 461, 465, 117 A.2d 650 (App.Div.1955). Total destruction has been judicially defined to mean "substantially totally destroyed." Lacey Tp. v. Mahr, 119 N.J.Super. 135, 138, 290 A.2d 450 (App.Div.1972). See also Krul v. Bayonne Bd. of Adj., 122 N.J.Super. 18, 25-29, 298 A.2d 308 (Law Div.1972), aff'd 126 N.J.Super. 150, 313 A.2d 220 (App.Div.1973).

Although the present case does not involve destruction of the building to which the sign is attached, it does involve another form of termination of the nonconforming structure or use, namely the demise of the liquor store business to which the nonconformity related. Our Supreme Court has acknowledged that the duration of nonconforming uses or structures may be limited by abandonment or discontinuance. Belleville v. Parrillo's Inc., 83 N.J. at 315, 416 A.2d 388. Ordinarily, abandonment of a nonconforming use or structure requires "the concurrence of two factors: one, an intention to abandon; and two, some overt act, or some failure to act, which carries a sufficient implication 'that the owner neither claims nor retains any interest in the subject matter of the abandonment.' " Saddle River v. Bobinski, 108 N.J.Super. 6, 16-17, 259 A.2d 727 (Ch.Div.1969).

Further, in zoning law discontinuance is synonymous with abandonment. "It connotes a voluntary, affirmative, completed act." State ex rel. Schaetz v. Manders, 206 Wis. 121, 124, 238 N.W. 835, 837 (Sup.Ct.1931). See also Navin v. Early, 56 N.Y.S.2d 346, 347 (Sup.Ct.1945). Webster's Third New International Dictionary, p. 646, defines discontinuance to include termination, breaking off, giving up and abandoning. But as the Connecticut Supreme Court recognized recently, a nonconforming use or structure may be terminated based on cessation of use independent of any intent to abandon the nonconforming use or structure. ...