Township of Fairfield v. Likanchuk's, Inc.

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtHAVEY
Citation644 A.2d 120,274 N.J.Super. 320
PartiesTOWNSHIP OF FAIRFIELD, Plaintiff-Appellant, v. LIKANCHUK'S, INC., a New Jersey Corporation, Defendant-Respondent.
Decision Date22 June 1994

Page 320

274 N.J.Super. 320
644 A.2d 120
TOWNSHIP OF FAIRFIELD, Plaintiff-Appellant,
v.
LIKANCHUK'S, INC., a New Jersey Corporation, Defendant-Respondent.
Superior Court of New Jersey,
Appellate Division.
Submitted April 20, 1994.
Decided June 22, 1994.

Page 324

[644 A.2d 122] Basile, Testa & Testa, Vineland, for appellant (Harold U. Johnson, Jr., of counsel and on the briefs).

Hasbrouck & Uliase, Woodbury, for respondent (Bruce C. Hasbrouck on the brief).

Before Judges KING, HAVEY and A.M. STEIN.

The opinion of the court was delivered by

HAVEY, J.A.D.

In this zoning case, plaintiff Township of Fairfield filed the present action seeking to enjoin defendant Likanchuk's, Inc., a

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long-standing automobile salvage business, from continuing to engage in two nonconforming uses--sand and gravel mining, and concrete and asphalt recycling. The Chancery Division judge concluded that defendant may expand its mining operation throughout its entire tract because sand was a "diminishing asset." The judge also held that the principles of equitable estoppel and laches precluded the Township from enforcing its ordinances[644 A.2d 123] to prohibit the recycling activity. We disagree as to both points and reverse.

Defendant owns four contiguous lots identified on the Township tax map as Block 5, Lots 40, 43, 44 and 45. Under the Township's zoning ordinance, adopted in June 1969, Lots 40 and 45 are zoned planned business/light industry and Lots 43 and 44 are zoned agricultural. Automobile salvage yards, gravel mining and recycling are not permitted uses in either zone.

Since prior to the effective date of the ordinance, defendant or its principal Alex Likanchuk has owned the lots, operating an automobile salvage yard as a nonconforming use on the south-west portion of Lot 40. It is undisputed that there has also been earth and gravel removal from the site since prior to 1969, but only on Lot 40. It is also undisputed that the gravel was removed in small quantities, less than 500 cubic yards per year.

In the early 1970's a substantial housing development was constructed contiguous to defendant's property. On December 1, 1987, the Township's then zoning officer, Jared Gould, issued a Certificate of Occupancy/Use to defendant, covering all four lots, stating that the lots "[m]ay be used to accept clean fill and demolition debri [sic] for disposal."

Sometime in 1988, Township officials received neighbors' complaints of excavation of sand and gravel. Large amounts of gravel were being removed, sometimes more than 100 truckloads a day. In September 1988, the Township filed the present action seeking to stop defendant's mining operation pending review by the Zoning Board of Adjustment. Interim orders were entered denying the Township's request for temporary restraints, but requiring

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defendant to apply to the Zoning Board for a determination as to the pre-existing use question by that body. On February 6, 1992, in response to the Township's enforcement motion, the Chancery Division judge again directed that defendant apply to the Zoning Board.

During the pendency of the action concerning the mining activity, defendant, purportedly in reliance on the December 1, 1987 Certificate of Occupancy/Use issued by Zoning Officer Gould, applied to the Department of Environmental Protection (DEP) 1 for a permit to operate an asphalt/concrete recycling center on its tract. The DEP issued the permit on February 6, 1991, subject to defendant complying with all local ordinances. Sometime in June 1991, the Township Clerk was served by Cumberland County with a notice of public hearing concerning an amendment to the County's Solid Waste Management Plan, which listed defendant as a recycling facility for concrete and asphalt. It is undisputed that Township officials visually inspected defendant's property in June 1991 when asphalt and concrete was being stockpiled on the tract, for purposes of recycling.

On July 28, 1992, the Township moved to restrain the recycling operations. The Chancery Division judge scheduled a hearing to determine whether the Township's "alleged silence and acquiescence" after the December 1, 1987 zoning certificate was issued and during defendant's DEP permit application process "shall in some way prevent [the Township] from taking action in opposition thereto at this time."

By resolution dated September 23, 1992, the Board of Adjustment, after public hearings, determined that removal of sand and gravel could be continued as a prior nonconforming use but limited to less than 500 cubic yards a year from only Lot 40. 2

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On the return date of the Township's order to show cause, the Chancery Division judge first determined that sand and gravel mining was permitted on the entire property as a prior nonconforming use, because the activity involved a "diminishing asset." The judge also concluded that the December 1, [644 A.2d 124] 1987 certificate issued by Zoning Officer Gould was voidable, but not void in the primary sense, since it was issued within the ambit of his duties as a zoning officer. Accordingly, the judge applied equitable estoppel and laches and held that the Township could not prohibit recycling activity because defendant had reasonably relied upon Gould's certificate as well as the Township's "silence and acquiescence" during defendant's application process before the DEP and County.

I

We agree with the Township that, as a matter of law, defendant's mining activity must be limited to mining 500 cubic yards a year and confined only to Lot 40. It is settled that use of land lawfully existing prior to the enactment of a zoning ordinance may be continued even though it does not comply with the use requirements of the new enactment. See N.J.S.A. 40:55D-68; Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315, 416 A.2d 388 (1980). However, because nonconforming uses are inconsistent with the objectives of uniform zoning, the policy of the law is to restrict, rather than to expand, such uses. Palatine I v. Planning Board of Tp. of Montville, 133 N.J. 546, 565, 628 A.2d 321 (1993); Avalon Home & Land Owners Ass'n. v. Borough of Avalon, 111 N.J. 205, 210, 543 A.2d 950 (1988). Accordingly, courts have generally required that nonconforming uses "should be reduced to conformity as quickly as is compatible with justice." Town of Belleville, 83 N.J. at 315, 416 A.2d 388. See also, Grundlehner v. Dangler, 29 N.J. 256, 263, 148 A.2d 806 (1959) (courts have

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uniformly held that, because nonconforming uses "were generally discordant to their surroundings it was the fervent hope that they would in time wither and die and be replaced by conforming uses").

It follows that expansion of nonconforming uses is not favored. Urban v. Planning Board of Manasquan, 124 N.J. 651, 656, 592 A.2d 240 (1991). Nonconforming uses "may not be enlarged as of right except where the change is so negligible or insubstantial that it does not warrant judicial or administrative interference." Belleville, 83 N.J. at 316, 416 A.2d 388. Any doubt as to whether an enlargement or change of the use is substantial rather than insubstantial is to be resolved against the property owner. Ibid; Lehen v. Atlantic Highlands Zoning Board of Adjust., 252 N.J.Super. 392, 399, 599 A.2d 1283 (App.Div.1991). The power to allow expansion of the nonconforming use when the change is not negligible or substantial is reposed exclusively with the board of adjustment pursuant to the "special reasons" provision under N.J.S.A. 40:55D-70d(2). See Avalon Home & Land Owners Ass'n., 111 N.J. at 211-12, 543 A.2d 950.

Despite this restrictive view expressed by our decisions, we have recognized and applied special criteria to "diminishing asset" cases, when the nature of the nonconforming use, such as excavation or soil removal, involves the utilization of a wasting asset and requires continual expansion over an area. Cronin v. Township Committee of Chesterfield, 239 N.J.Super. 611, 614, 571 A.2d 1354 (App.Div.1990); Moore v. Bridgewater Tp., 69 N.J.Super. 1, 15, 173 A.2d 430 (App.Div.1961); Lamb v. A.D. McKee, Inc., 10 N.J.Misc. 649, 650, 160 A. 563 (Sup.Ct.1932); Arden H. Rathkopf and Daren A. Rathkopf, The Law of Zoning and Planning, § 51.07 at 110 (1984). In Moore, we stated the rationale for the "diminishing asset" theory as follows:

It is quite obvious that an owner intending to carry on a quarrying operation acquires more land than he thinks he will need so that he will not be a source of nuisance to his neighbors. For practical and economical reasons he must begin operations at one given point and continue from there to a point on his lands where

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his natural resource ends or at his boundary line. For the same reasons, it is not feasible for him to quarry at different locations at the same time.

[69 N.J.Super. at 15, 173 A.2d 430.]

However, simply because the nature of the use involves a diminishing asset does not necessarily justify its expansion. Because of the expressed aversion toward expansion of nonconforming uses, the "diminishing asset" theory must be applied with caution. Public concern toward wholesale [644 A.2d 125] excavation and its attendant dangers are well founded. See Bernardsville Quarry, Inc. v. Borough of Bernardsville, 129 N.J. 221, 236-38, 608 A.2d 1377 (1992); Dock Watch Hollow Quarry Pit, Inc. v. Township of Warren, 142...

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  • County of Morris v. Fauver
    • United States
    • United States State Supreme Court (New Jersey)
    • March 9, 1998
    ...manifest injustice." 109 N.J. 309, 316, 537 A.2d 647 (1987) (citations omitted); see also Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 331, 644 A.2d 120 (App.Div.1994) (explaining that equitable estoppel is applied against governmental entities " 'only in very compelling ......
  • County of Morris v. Fauver
    • United States
    • New Jersey Superior Court – Appellate Division
    • December 17, 1996
    ...public entities. O'Malley v. Dep't of Energy, 109 N.J. 309, 316, 537 A.2d 647 (1987); Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 331, 644 A.2d 120 (App.Div.1994). The Act and the [685 A.2d 1351] contract 6 contemplate that the State will use the County facility construc......
  • AIM Dev. (USA), LLC v. City of Sartell, A18-0443
    • United States
    • Supreme Court of Minnesota (US)
    • July 15, 2020
    ...Rd. Coal. v. Cty. of Marin , 33 Cal.App.5th 1074, 245 Cal. Rptr. 3d 580, 584 (2019) ; but see Twp. of Fairfield v. Likanchuk's, Inc. , 274 N.J.Super. 320, 644 A.2d 120, 124 (App. Div. 1994) (explaining that "simply because the nature of the use involves a diminishing asset does not necessar......
  • Romero v. Rio Arriba County Commissioners, No. 24,147.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • August 29, 2006
    ...excavated falls on the party claiming an exemption under the Page 952 grandfather clause"); Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 644 A.2d 120, 125 (Ct.App.Div.1994) (holding that, in order to benefit from the diminishing assets doctrine, "the owner must show that ......
  • Request a trial to view additional results
15 cases
  • County of Morris v. Fauver
    • United States
    • United States State Supreme Court (New Jersey)
    • March 9, 1998
    ...manifest injustice." 109 N.J. 309, 316, 537 A.2d 647 (1987) (citations omitted); see also Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 331, 644 A.2d 120 (App.Div.1994) (explaining that equitable estoppel is applied against governmental entities " 'only in very compelling ......
  • County of Morris v. Fauver
    • United States
    • New Jersey Superior Court – Appellate Division
    • December 17, 1996
    ...public entities. O'Malley v. Dep't of Energy, 109 N.J. 309, 316, 537 A.2d 647 (1987); Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 331, 644 A.2d 120 (App.Div.1994). The Act and the [685 A.2d 1351] contract 6 contemplate that the State will use the County facility construc......
  • AIM Dev. (USA), LLC v. City of Sartell, A18-0443
    • United States
    • Supreme Court of Minnesota (US)
    • July 15, 2020
    ...Rd. Coal. v. Cty. of Marin , 33 Cal.App.5th 1074, 245 Cal. Rptr. 3d 580, 584 (2019) ; but see Twp. of Fairfield v. Likanchuk's, Inc. , 274 N.J.Super. 320, 644 A.2d 120, 124 (App. Div. 1994) (explaining that "simply because the nature of the use involves a diminishing asset does not necessar......
  • Romero v. Rio Arriba County Commissioners, No. 24,147.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • August 29, 2006
    ...excavated falls on the party claiming an exemption under the Page 952 grandfather clause"); Township of Fairfield v. Likanchuk's, Inc., 274 N.J.Super. 320, 644 A.2d 120, 125 (Ct.App.Div.1994) (holding that, in order to benefit from the diminishing assets doctrine, "the owner must show that ......
  • Request a trial to view additional results

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