Razberry's, Inc. v. Kingwood Township Planning Board
Court: New Jersey Superior Court Appellate Division; August 7, 1991; New Jersey; State Appellate Court
The court addressed whether a property owner can subdivide a lot with a nonconforming use, reducing the area of that use, without obtaining a use variance as mandated by N.J.S.A. 40:55D-70d(2). Rich-Hil Transportation, Inc. sought to subdivide a 5.17-acre portion of an 8.17-acre parcel in Kingwood Township, where a residence (a valid nonconforming use) was located. The subdivision would create one lot for the existing residence, which would be undersized at three acres, while the other lot was intended for commercial development by Rich-Hil. Although Rich-Hil applied for a hardship variance for the undersized lot, it did not seek a use variance for the residential lot.
The Planning Board approved the subdivision and hardship variance, leading to a challenge from Razberry’s, Inc., an adjoining property owner, who argued that the subdivision would intensify the nonconforming residential use, necessitating a use variance. The trial court dismissed Razberry’s complaint, but the appellate court found that a use variance is indeed required when a nonconforming use's property size is reduced through subdivision. The court referenced N.J.S.A. 40:55D-68, which allows nonconforming uses to continue only on the original lot, indicating that subdividing creates new lots that no longer maintain this prerequisite. The court emphasized the legislative intent to limit nonconforming uses and prevent their expansion, ultimately reversing the trial court's dismissal and nullifying the Planning Board's approval of Rich-Hil's applications.
Courts have typically identified prohibited changes to nonconforming uses through either facility expansion or use intensification. A reduction in the size of property occupied by a nonconforming use can similarly escalate conflicts with surrounding conforming uses, potentially increasing the nonconformity. For example, a nonconforming factory on a large parcel in a residential zone benefits from a buffer that mitigates its impact. If the parcel were subdivided into smaller residential lots surrounding the factory, the buffer would diminish, worsening the negative effects on the neighborhood. If the property owner were allowed to make such changes without a use variance, this would contradict the Supreme Court's emphasis on evaluating the overall impact of the use on the neighborhood's character and zoning plan.
While the specific subdivision in question may have less of an impact than the hypothetical example, the reduction from over eight acres to three acres is deemed significant enough to necessitate a use variance. Consequently, the judgment of the Law Division dismissing the complaint is reversed, and the Planning Board’s resolution granting subdivision approval and a hardship variance is set aside. The court does not address whether a minimal reduction in lot size would require a use variance.
