Daily Development for Friday, March 18, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND LAND USE; PREEXISTING; NONCONFORMING USE; ABANDONMENT:  The test determining whether an owner has abandoned a prior nonconforming use is a subjective one, not an objective one, and the mere passage of time must be considered in conjunction with all circumstances.

S&S Auto Sales, Inc. v. Zoning Board of Adjustment for the Borough of Stratford, 373 N.J. Super. 604, 862 A.2d 1204 (App. Div. 2004); December 22, 2004:

A used-car dealership opened for business in 1993.  It leased property in a C-Commercial Zone.  When the dealership opened, this was a permitted use.  Later, however, the zoning laws changed and would have prohibited the use had it not been preexisting.

 In 1995, the dealership entered into a fifteen year lease-purchase agreement for the property.  The dealership continuously and actively sold cars from the site until the summer of 2001.  In August 2001, lacking adequate staffing, the dealership ceased operations.  It removed two metal ramps used to display featured vehicles, and several cement bumpers were positioned to block the driveways.  No other exterior changes were made.  When the dealership decided to sublease or sell the property, all marketing efforts were directed at car dealers and the property was marketed only as an auto dealership facility.  During this time, the dealership kept its lease-purchase agreement current and maintained electricity and water service.  Although its telephone service was discontinued and it didn't renew its yellow pages advertisement, it removed nothing from the building.  The dealership notified the municipality that it had no intention to abandon its right to utilize the property for use

d car sales and that it intended to resume operations in the very near future.

In July 2002, the dealership did not receive annual renewal forms from the municipality for its business and sign licenses.  It made written inquiry requesting the forms and reminded the municipality that it still intended to operate the location for car sales.  After receiving no response, the dealership followed up on its request and was told by the zoning board secretary that the municipality deemed the nonconforming use abandoned and that the dealership would have to appear before the board for a determination of the issue.  The municipality refused to process any license renewal applications.  The dealership promptly applied to the board, seeking a determination that it had not abandoned its nonconforming use.

At the hearing, the dealership explained that after the site had closed, it continued to advertise for help.  People were interviewed, but no hiring was done.  The dealership claimed that the work stoppage was only temporary and that it could be operational within two days.  No equipment was brought onto the premise to render it usable for another purpose; no efforts were made to sell or lease it for any other purpose; and no physical changes were made to the property.  The board denied the dealership's application, concluding that the actions of the dealership showed a clear intention to abandon the pre-existing nonconforming use of the property for automotive sales.

The lower court upheld the board's decision, applying an objective test.  It held that the objective test authorized termination of a nonconforming use without regard to the owner's intent.  The Appellate Division disagreed, holding that no such test exists in New Jersey and that the lower court should have applied a subjective test.  It pointed out that glaringly missing from the board's findings was any mention of the dealership's ongoing efforts to cause a resumption of auto sales.  Mere passage of time during a cessation of active use does not constitute abandonment.  Although length of time is a factor to be considered, it is not the sole factor.  Some discontinued uses are more readily revivable than others, and the passage of time must be considered in conjunction with all circumstances, including those that caused the cessation, the nature and quality of efforts being made to resume the use, and any other objective manifestations supporting or negating the owner's expresse

d intent to continue the use.  For that reason, the Appellate Division reversed the lower court's decision and held that the dealership had not abandoned its nonconforming use.

Comment: Some jurisdictions look primarily to zoning code provisions regarding preexisting use and don’t base their findings on constitutional principles.  The court here seems to have done that.  For an abandonment case invoking Constitutional principles, see   Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154 (Ala.2000) (the DIRT DD for 1/16//02) (Ordinance provision terminating nonconforming use status upon change in ownership of property is invalid on its face, as is provision prohibiting any alteration of the property, since holders of nonconforming use rights are permitted to make reasonable alterations to repair their facility and render it practicable for their purposes.)

For an interesting twist where intent was not so much an issue, see City of Glendale v. Aldabbagh, 939 P.2d 418 (Ariz. 1997) (the DIRT DD for 12/23/97) (A nonconforming use may be lost through abandonment where landowner has not used the property for the identified use for a year, even where the landowner was required to discontinue the use by public order, if the order compelling the  nonuse is attributable, at least in part, to misconduct by landowner. )

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