Township of Stafford v. Stafford Tp. Zoning Bd. of Adjustment

• Decision Date: 18 May 1998
• Parties: TOWNSHIP OF STAFFORD, a municipal corporation of the State of New Jersey, Plaintiff-Respondent, v. STAFFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Respondent, and Hugh Schultz, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 62

154 N.J. 62

711 A.2d 282

TOWNSHIP OF STAFFORD, a municipal corporation of the State

of New Jersey, Plaintiff-Respondent, v. STAFFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Respondent, and Hugh Schultz, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 21, 1998.

Decided May 18, 1998.

Nicholas C. Montenegro, Brick Town, for defendant-appellant (Wilbert & Montenegro, attorneys; Glenn R. Stern, Lakewood, on the briefs).

Charles W. Hutchinson, Jersey City, for plaintiff-respondent Township of Stafford (Gilmore & Monahan, Toms River, attorneys).

Michael H. Mathis, Tuckerton, submitted a statement in lieu of brief on behalf of defendant-respondent Stafford Township Zoning Board of Adjustment.

The opinion of the Court was delivered by

GARIBALDI, J.

In Paruszewski v. Township of Elsinboro, 154 N.J. 45, 51, 711 A.2d 273, 276 (1998), also decided today, we held that in certain limited circumstances a municipal governing body has standing to appear before the zoning board of adjustment to oppose a nonconforming use certification petition. In this appeal, we consider whether a municipal governing body has standing to challenge the certification of a nonconforming use by the zoning board. To resolve that question, we first must determine whether an applicant seeking certification of a preexisting nonconforming use, pursuant to N.J.S.A. 40:55D-68 ("Section 68"), must comply with the notice requirements, pursuant to N.J.S.A. 40:55D-12 ("Section 12"), of the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -136.

I

Petitioner Hugh Schultz ("petitioner") owns property at Lot 12, Block 229 in Stafford Township. On that property, petitioner operates his business, Manahawkin Auto Sales. Petitioner also used adjoining Lot 13 to display and store cars. On January 26, 1995, Jeffrey Pharo ("Pharo"), a Deputy Code Enforcement Officer, served petitioner with a violation notice, informing him that his "car business was being operated on [Lot 13] in violation of the Stafford Code." Pursuant to the Stafford Zoning Code, Lot 13 was located in a residential/local business zone that did not allow the display and storage of cars as a permitted use.

In response to that violation notice, petitioner filed an application with the Stafford Township Zoning Board of Adjustment ("Zoning Board" or "Board") on May 1, 1995, requesting certification that the "sale, purchase and repair of automobiles" on Lot 13 was a pre-existing, nonconforming use. The Zoning Board held a public hearing in July 1995 to consider petitioner's application. Petitioner, however, provided no notice of that hearing to owners of property within 200 feet of Lot 13 and did not publish a notice in the appropriate newspaper. See N.J.S.A. 40:55D-12(a). At the hearing, petitioner and five additional witnesses supported his application, stating that petitioner had used Lot 13 to store and display cars since 1963. Pharo was the only witness to testify in opposition to the application, stating that he drove by Lot 13 on a daily basis for three years and he "never" saw a car on Lot 13 until the day he cited petitioner for a violation. No testimony was heard from petitioner's neighboring landowners; the Township of Stafford ("Township") attributes that fact to lack of notice. Based on the testimony presented, the Zoning Board approved petitioner's application, finding that petitioner's storage and display of cars on Lot 13 was a pre-existing, nonconforming use. The Board, however, imposed as a restriction that "the use found to be exempt ... does not include the service or repair of any motor vehicle."

In August 1995, the Township filed a complaint in lieu of prerogative writs in Superior Court, Ocean County. The Zoning Board subsequently joined in the Township's brief, concurring that its own decision should be overturned on appeal. Relying on Township of Dover v. Board of Adjustment, 158 N.J.Super. 401, 386 A.2d 421 (App.Div.1978), the Law Division found that the Township had no standing because "the matter before the Board was so narrow in scope" that there was no actionable risk to the character of the district. Because the court found the issue of the Township's standing dispositive, it did not rule on whether petitioner was required to provide Section 12 notice in his application for a nonconforming use certification.

The Appellate Division reversed and vacated the Zoning Board's certification, "without prejudice to the applicant's right to reapply to the zoning board on proper notice to the neighboring landowners." Township of Stafford v. Stafford Township Zoning Bd. of Adjustment, 299 N.J.Super. 188, 190, 690 A.2d 1043 (App.Div.1997). The panel found that the Board had no jurisdiction to hear petitioner's nonconforming use certification application in the absence of notice to neighboring landowners "within 200 feet" of Lot 13. N.J.S.A. 40:55D-12. In addition, the court held that if the Zoning Board lacked jurisdiction, the Township had standing to challenge the Board's certification based on the "arrogation of authority" requirement enunciated in Dover, supra. The court equated injury to the Township's citizens with interference with the Township's statutory authority. 299 N.J.Super. at 198, 690 A.2d 1043. We granted certification, 151 N.J. 71, 697 A.2d 544 (1997), and now affirm.

II

When the governing body enacts or amends a zoning ordinance, "there will [inevitably] be uses which are newly prohibited ...--these are known as nonconforming uses." William M. Cox, New Jersey Zoning and Land Use Administration, § 11-1.1 (1997) [hereinafter New Jersey Zoning ]. Because it is considered "inequitable to strip away a person's lawfully asserted property rights retroactively," ibid., the MLUL attempts "to balance the municipality's interest in being able to amend its zoning ordinances with the property owner's interest in maintaining the use and value of his or her property." Palatine I v. Planning Bd., 133 N.J. 546, 565, 628 A.2d 321 (1993). Therefore, although Section 68 permits pre-existing, nonconforming uses "to co-exist with the ordinance that, on its face, prohibits them," New Jersey Zoning, supra, § 11-1.1, there is a corresponding tendency by courts to strictly limit the scope of the use and to "reduce[ ][it] to conformity as quickly as is compatible with justice." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315, 416 A.2d 388 (1980). Section 68 outlines the applicable procedure and provides in pertinent part:

The prospective purchaser, prospective mortgagee, or any other person interested in any land upon which a nonconforming use ... exists may apply in writing for the issuance of a certificate certifying that the use ... existed before the adoption of the ordinance which rendered the use ... nonconforming. The applicant shall have the burden of proof. Application pursuant hereto may be made to the administrative officer within one year of the adoption of the ordinance which rendered the use or structure nonconforming or at any time to the board of adjustment.... Denial by the administrative officer shall be appealable to the board of adjustment.

[ N.J.S.A. 40:55D-68.]

Before asking a court for relief, any person whose application to certify a nonconforming use is denied by the administrative officer or who applies more than one year after the adoption of the pertinent ordinance must first file an appeal or application with the zoning board. R. 4:69-5 (requiring exhaustion of administrative remedies before action in lieu of prerogative writs may be maintained); see also Bell v. Township of Bass River, 196 N.J.Super. 304, 314, 482 A.2d 208 (Law Div.1984) (explaining that exhaustion of remedies requirement is appropriate because zoning board "is particularly well equipped to address non-conforming use disputes"); Borough of Bay Head v. MacFarlan, 209 N.J.Super. 134, 137 n. 1, 506 A.2d 1299 (App.Div.1986) (noting court is not "the most appropriate forum for determining zoning questions, such as the existence of prior nonconforming uses").

The zoning board's power to certify nonconforming uses is exclusive and may not be exercised by any other municipal agency, N.J.S.A. 40:55D-68; N.J.S.A. 40:55D-20. The governing body, therefore, is without power to certify nonconforming uses. See Cronin v. Township Comm., 239 N.J.Super. 611, 618, 571 A.2d 1354 (App.Div.1990). A zoning board's decision with respect to certification of a pre-existing nonconforming use pursuant to Section 68 is not appealable to the governing body. Any appeal of the board's decision must be brought by an action in lieu of prerogative writs that " 'bring[s] before the superior court for inspection the record of the proceedings of the inferior tribunal, to determine whether the latter had jurisdiction and had proceeded according to law.' " Wyzykowski v. Rizas, 132 N.J. 509, 522, 626 A.2d 406 (1993) (quoting State v. Court of Common Pleas, 1 N.J. 14, 19, 61 A.2d 503 (1948)).

III

Our initial inquiry is whether an applicant submitting a Section 68 application for a nonconforming use certification must provide notice pursuant to Section 12 of the MLUL. That is an issue of first impression.

With respect to most zoning and land use applications, the MLUL "requires public hearings[ ][and] an opportunity for the public to be heard." Township of Berkeley Heights v. Board of Adjustment, 144 N.J.Super. 291, 300, 365 A.2d 237 (Law Div.1976)(citing N.J.S.A. 40:55D-10(d)). The MLUL ensures that the public has a chance to be heard, either in support of or in opposition to such applications, by imposing notice requirements. N.J.S.A. 40:55D-12. Section 12 requires "[p]ublic notice of a hearing" to be given "on an application for development." N.J.S.A. 40:55D-12(a). Specifically, "[p]ublic notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality." Ibid. In addition,...