Appeals Court Questions Municipal Ordinances On Abandonment Of Nonconforming Use

April 10, 2015 | No Comments
Posted by Paul H. Schneider

Under New Jersey’s Municipal Land Use Law (MLUL), any nonconforming use or structure lawfully existing at the time of the passage of an ordinance making the use or structure nonconforming − sometimes called a prior nonconforming use − may be continued indefinitely. However, this right is lost if the use or structure is abandoned. Abandonment depends on the owner’s subjective intent. Discontinuing the use for a lengthy period of time may be one factor suggesting an owner’s intent to abandon the building or use, but the passage of time alone is not dispositive.

Nonetheless, some towns have ordinances that automatically deem a use or structure to be abandoned if the use is discontinued for a specified period of time. In the recent decision of Harrison Redevelopment Agency v. FER Boulevard Realty Corp., the Appellate Division of Superior Court emphasized that the passage of time alone is not controlling in determining whether the owner intended to abandon the prior nonconforming use, and such an ordinance may be struck down.

During the Great Recession, many businesses have been forced to close, discontinuing established uses and leaving buildings unoccupied for extended periods of time, yet the property owner intended to resume the use once economic conditions improved. This decision emphasizes that municipalities cannot deny rights to a prior nonconforming use simply because of the passage of time.

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