Upgrading an existing, non-compliant usage in New Jersey involves countless problems, and its solution is a bit like navigating between Skylla and Charybdis. The appeal, on the one hand, is the common law principle that such uses (colloquially “grandfathered uses”) do not necessarily have to be maintained with age, but must be aligned with current zoning as soon as possible. Belleville v. Perrillo`s Inc., 83 N.J. 309 (1980). Conversely, the basic principle that the owner of a legally acquired use has the right to sue it despite a subsequent amendment to the ordinance prohibiting such use in the area concerned – a principle codified in N.J.S.A. 40:55D-68, but of constitutional dimension, since it is recognized as a valuable property right that cannot be taken by a municipality without conviction. Belmar vs. 201 16th Ave., 309 N.J. Super. 663 (L.
Div., 1997) The tension between these opposing principles is still strained when there is hostility to use, whether by the municipality itself or by neighbours, in particular by a commercial competitor, with the will and means to fight. If you want to continue a grandfather and non-compliant use on a property you want to buy, what should you do? Do your homework and don`t waste time. Non-compliant use, better known as grandfathered use, is a concept found in zoning and land use law. Understanding this requires an understanding of how area and land use codes work. State and local governments use municipal “area codes” to govern how buildings are constructed and how land is used. In addition, codes govern not only what people can build, but also how they can build it. For example, one section of the municipal code would limit ownership to a single-family home, but another section could dictate the size of the home for the property. The difficulty with code is that it changes and evolves over time. In a way, it is as if the regulatory target positions could change. Grandfathered uses therefore occur when a new regulation or rule on land use does not apply to an existing property because it does not comply with the new land use control. Although powerful, grandfather`s rights of use are not unlimited.
The use of a grandfather can expire if the owner does not use it over time. It cannot be “revoked” immediately, but non-compliant use could potentially be strictly regulated and intentionally terminated within a reasonable legal period of time. This is where the constitutional prohibition on taking property without fair compensation comes into play. If a use occurs before the zoning plan, it may persist because the government does not have the power to simply close a business in an area that becomes a residential area or to require the demolition of a house in an industrial zone, unless it is willing to compensate the owner for the loss. These exceptions are called non-compliant uses. In general, the part of the area statue that allows for non-conforming prior uses is called the grandfather clause, and such use is called grandfather protection. As you can imagine, local governments don`t like non-compliant use protections. Laws are interpreted to encourage non-compliant uses. Courts can restrict these uses, but not abolish them. What protects the owner is not the right to use the land, but the constitutional right.
According to our Federal Constitution, you cannot be deprived of your property rights without due process. This includes the fact that you can`t suddenly stop what a person has legitimately done to their country in the past. This means that a grandfathered use can never be revoked. The Municipal Land Use Act (MLU) provides a mechanism for a landowner to obtain confirmation of grandfathering status. If within one year of the change of zone N.J.S.A. 40:55D-68 provides that “a potential buyer, a potential mortgagee, or any other person interested in the land. may apply to the “administrative officer” of the municipality for a grandfathering certificate. An adverse decision may then be appealed to the Zoning Adjustment Board (“OBA”). Subsequently, this confirmation can only be obtained from the ZBA, either by appeal against the appointment of a zone commissioner in accordance with N.J.S.A.
40:55D-70a (discussed below), or by direct request from N.J.S.A. 40:55D-72b, which provides that “a developer may submit a development application to the [ZBA] in order to act within its powers without prior request to an administrative officer”. This includes the power “to hear and rule on applications for interpretation of the area map or ordinance, or on decisions on other specific matters on which this council has the power to publish a zoning or official map or ordinance in accordance with this Act.” N.J.S.A. 40:55D-70b Thus, if the zoning order gives the municipality of its ZBA full authority sanctioned by the MLUL, a “developer” (defined as “the legal or beneficial owner or owner of any land or land to be included in a development project, including the holder of a purchase option or purchase agreement or any other person who has an enforceable ownership right in that land” N.J.S.A. 40:55D-4) an application to the ZBA for grandfathering certification. A grandfather clause allows the current state of something that already exists to remain unchanged, despite a policy change that will apply in the future. For example, the 22nd Amendment to the Constitution set term limits for future presidents, but did not apply to the president (Truman) who was in office when Congress passed it. In another example, zoning bylaws may prohibit the use of a property for specific purposes, but include a grandfather clause that allows pre-existing properties with such uses to continue legally. Whether an existing use is included in a new zoning ordinance that does not allow such uses depends on a variety of political factors and influences, so there is no final regulation on whether a particular use will be included in the new bylaw. .
