Villari v. Zoning Bd. of Adjustment of Deptford

• Decision Date: 15 November 1994
• Parties: Joseph VILLARI and SJ Villari Livestock, Plaintiffs-Respondents, v. The ZONING BOARD OF ADJUSTMENT OF DEPTFORD and Deptford Township, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 130

277 N.J.Super. 130

649 A.2d 98

Joseph VILLARI and SJ Villari Livestock, Plaintiffs-Respondents, v. The ZONING BOARD OF ADJUSTMENT OF DEPTFORD and Deptford Township, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 19, 1994.

Decided Nov. 15, 1994.

Wayne C. Streitz, Pitman, for appellants (Ware, Streitz and Thompson, attorneys; Mr. Streitz, on the brief).

Bruce C. Hasbrouck, Woodbury, for respondents (Hasbrouck & Uliase, attorneys; Mr. Hasbrouck, on the brief).

Before Judges SKILLMAN, WALLACE and KLEINER.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiffs are the owners of twenty acres of land in Deptford Township, Gloucester County, in an area presently zoned residential. Although some agricultural uses are permitted conditional uses in this zone, the "keeping of pigs" is only permitted on lots of fifty acres or more. ¹ Thus, the raising of pigs is not a permitted use on plaintiffs' property.

Plaintiffs applied to the Deptford zoning officer for a permit to repair and reconstruct a fence for the purpose of holding pigs. Plaintiff Joseph Villari contended that members of his family had used the property for pig farming since 1929 or 1930, thereby creating a preexisting nonconforming use when the zoning was changed to prohibit this use, ² and that he had not abandoned the use or the structures required for the use including the fence.

After the zoning officer denied plaintiffs' permit application, they filed an appeal with the Township of Deptford Board of Adjustment (the Board). At the hearing, Villari testified that pig farming had been discontinued on the property for a period of from seven to ten years, during which time it had been used for growing corn and alfalfa, and that the fence formerly used to enclose the pigs had deteriorated. However, Villari asserted that plaintiffs had always intended to resume pig farming on the property. He also indicated that plaintiffs had in fact resumed pig farming approximately eighteen months to two years before the hearing. Villari said that there were approximately 400 pigs on the property at the present time and that this number would increase to approximately 750 if pig farming were held to be a valid nonconforming use and plaintiffs were granted a permit to reconstruct the fence. Villari further indicated that there had been as many as 1,000 pigs on the property in the past. A substantial number of residents of adjoining properties testified in opposition to plaintiffs' application, most of whom indicated that there had been no pig farming on the property for at least fifteen years.

Based on this record, the Board found that "there were no pigs or hogs ³ being raised on the premises for a period of at least seven years and probably much longer" and that "the deteriorated fence and enclosed area in question were not maintained in any manner relating to the raising of hogs or pigs during this period of time." The Board further found that "the applicant's failure to act in any way to maintain the area in question carried a significant implication that the applicant abandoned his interest in the raising of pigs and hogs in the area in question." Consequently, the Board concluded that plaintiffs had "abandoned the non-conforming use and structure in question." Accordingly, the Board affirmed the zoning officer's denial of plaintiffs' permit application.

Plaintiffs filed this action in lieu of prerogative writs, contending that the Board's decision was not supported by substantial evidence in the record and was therefore arbitrary and capricious. Plaintiffs also contended that the zoning of his property and the Board's decision violated the "Right to Farm Act," N.J.S.A. 4:1C-1 to 10.

The trial court reversed the Board's decision, finding that plaintiffs "expressed no intention to abandon" pig farming on their property and "neither performed an act or failure to act which carries a sufficient implication" of an intent to abandon. The court also expressed the view that "where property has merely remained idle and there have [been] no significant changes made ... which would be indicative of an intent to abandon the non-conforming use, such suspension of use does not extinguish the non-conforming use." Since the trial court concluded that plaintiffs had a preexisting nonconforming use, it did not address plaintiffs' alternative argument that the Right to Farm Act overrides municipal zoning which prohibits agricultural activities including the raising of livestock. The Board and Deptford Township appeal from the judgment reversing the Board's decision.

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that plaintiffs abandoned the use of the property for raising pigs. We also conclude that the Right to Farm Act does not override municipal zoning and land use regulation. ⁴ Accordingly, we reverse the judgment of the trial court and reinstate the Board's decision denying plaintiffs' permit application.

I

The continuation of nonconforming uses and structures is authorized by N.J.S.A. 40:55D-68, which 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 and any such structure may be restored or repaired in the event of a partial destruction thereof." However, a property owner has the burden of establishing the existence of a nonconforming use or structure, ibid.; Weber v. Pieretti, 72 N.J.Super. 184, 195, 178 A.2d 92 (Ch.Div.), aff'd o.b., 77 N.J.Super. 423, 186 A.2d 702 (App.Div.1962), certif. denied, 39 N.J. 236, 188 A.2d 177 (1963), and the statutory authorization for continuing such uses is construed restrictively. See, e.g., Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 209-12, 543 A.2d 950 (1988); Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315-18, 416 A.2d 388 (1980); Grundlehner v. Dangler, 29 N.J. 256, 263-64, 148 A.2d 806 (1959). "Because nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice." Town of Belleville v. Parrillo's, supra, 83 N.J. at 315, 416 A.2d 388.

In accordance with this restrictive view, our courts have recognized that the right to continue a nonconforming use may be lost either through abandonment or discontinuance. Ibid.; Camara v. Board of Adjustment of Township of Belleville, 239 N.J.Super. 51, 56, 570 A.2d 1012 (App.Div.1990). The traditional view is that "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.' " Ibid. (quoting Borough of Saddle River v. Bobinski, 108 N.J.Super. 6, 16-17, 259 A.2d 727 (Ch.Div.1969)). However, we have recently recognized that "a nonconforming use or structure may be terminated based on cessation of use independent of any intent to abandon the nonconforming use or structure." Id. 239 N.J.Super. at 57, 570 A.2d 1012.

Professor Williams has cogently explained the reasons for rejecting the traditional requirement that a nonconforming use or structure may be terminated only by establishing the property owner's subjective intent to abandon that use or structure:

By definition, the question [of abandonment] comes up in court only when the owner is trying to resume nonconforming operations. In such a situation, his lawyer will tell him that, if he testifies that he never had any intention of abandoning the nonconforming use, he will win the lawsuit. In such a situation many plaintiffs can persuade themselves to give the correct testimony; ... This subjective test is thus a silly one, putting a premium on quasi-perjury....

....

The public policy on nonconforming uses clearly runs the other way; i.e., favors strong restrictions.

[4A Norman Williams, American Land Planning Law, §§ 115.02, 115.03 at 187, 189 (1986 rev.).]

Consequently, Professor Williams advocates rejection of the subjective test of an intent to abandon a nonconforming use and the adoption of an objective test, "that is, if nonconforming activities are not carried out in connection with a nonconforming use for a stated period of time, there is no legal right to resume." Williams, supra, § 115.14 at 205. The courts in a substantial number of jurisdictions have adopted this approach in determining whether a property owner's right to continue a nonconforming use has terminated. See, e.g., Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo.1988); Essex Leasing, Inc. v. Zoning Bd. of Appeals of Town of Essex, 206 Conn. 595, 539 A.2d 101 (1988); Canada's Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 271 A.2d 664 (Md.1970); see generally, Williams, supra, § 115.14.

We are satisfied that the Board's decision denying plaintiffs' permit application is sustainable under either the traditional subjective abandonment test or the objective discontinuance test advocated by Professor Williams and adopted by this court in Camara. Plaintiffs' suspension of the use of their property for raising pigs for a lengthy period of time together with their failure to maintain the fence enclosure is persuasive evidence that they did not have a continuing, definite intention to resume this use. Cf. State v. Casper, 5 N.J.Super. 150, 153, 68 A.2d 545 (App.Div.1949). Moreover, although Villari referred obliquely to "market conditions" as the reason for the prolonged discontinuance of pig farming, plaintiffs presented no supporting evidence that this commercial activity was unprofitable during the entire period in question. Therefore, the...