Understanding What is a Non-Conforming Use or Structure
Nonconforming uses or structures are those that were legally permitted and in existence prior to a municipality’s adoption of an ordinance that now prohibits such uses or structures. Generally speaking, New Jersey law protects property owners from losing their rights to use and occupy their property and the value of their property because of unreasonable land use regulation(s) that prohibit or unreasonably impact the value of their land. The owner of a pre-existing non-conforming use or building has the legal right to continue indefinitely their previously lawful use of the land.
When disputed, a Municipal Zoning Board is authorized to determine whether a structure or use qualifies as a pre-existing, non-conforming use or structure. Such a request may come before the board by the owner of the alleged nonconforming use or structure as an application for certification confirming the use or structure as a legally protected pre-existing nonconforming use and/or structure, or when an objector challenges the continued active use of the property and/or structure. When this occurs, the Zoning Board will decide whether the use or structure qualifies as a pre-existing nonconforming use or structure. The Zoning Board must ask what the property’s use was at the time the new zoning ordinance was adopted, which now prohibits it. If the use or structure today is the same or substantially similar to what it was when the ordinance permitted it, it will be deemed a pre-existing nonconforming use. A zoning board review may also be required when a property owner seeks a minor alteration or expansion of a pre-existing nonconforming use. If such a case arises, a D(2) variance must be requested and the Zoning Board must analyze whether the applicant has shown sufficient “special reasons” under the D variance requirements of the municipal land use law (see discussion of a “D” variance).
Obtaining a Variance For a Non-Conforming Use or Structure Part 1
Non-Conforming Variances Part 2
Preexisting, nonconforming uses may not be abandoned and then automatically reactivated by the preexisting or new owner. Once the use or building is deemed abandoned, the property’s legal protection from the present zoning ordinance is gone. Additionally, destruction of the nonconforming use or building, whether by design or by accident (i.e., fire, hurricane, lightning, etc.), also terminates its legal status as a pre-existing, nonconforming use. While a structure or use may be maintained indefinitely if it is considered pre-existing and nonconforming, an owner may not enlarge or materially modify the use.
Fredrick P. Niemann Esq.
Pre-existing nonconforming structures and uses are a complicated area of New Jersey land use law. It is important that you seek an experienced New Jersey attorney to ensure that you are allowed to continue using your property as you always have, despite any recent changes in zoning ordinances.
Please contact Fredrick P. Niemann, Esq. if you have any questions regarding land use ordinances or a pre-existing, nonconforming structure or use.
He can be reached at (732) 863-9900 or by email at fniemann@hnlawfirm.com. He welcomes your inquiries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney