JOHN SAPONARA v. ZONING BOARD OF THE BOROUGH OF COLLINGSWOOD

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APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN SAPONARA and ROSEMARY

SAPONARA, h/w,

Plaintiffs-Appellants,

v.

ZONING BOARD OF THE BOROUGH OF

COLLINGSWOOD and THE BOROUGH OF

COLLINGSWOOD,

Defendants-Respondents.

_________________________________

October 28, 2016

 

Argued October 6, 2016 Decided

Before Judges Alvarez, Accurso and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3729-13.

Donald C. Cofsky argued the cause for appellants (Cofsky & Zeidman, LLC, attorneys; Mr. Cofsky, on the brief).

Peter R. Thorndike argued the cause for respondent Zoning Board of the Borough of Collingswood (Ryan and Thorndike, attorneys; Mr. Thorndike, on the brief).

PER CURIAM

Plaintiffs John and Rosemary Saponara appeal from that part of a January 2, 2015 judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of the Borough of Collingswood, which denied them a certificate of non-conformity for front-yard parking as an accessory use to an automotive servicing and repair business plaintiffs conduct on the site and on a neighboring lot and denying them a use variance for such parking.

John Saponara has, since 1963, owned and operated an automotive repair shop, Jafstram, on Haddon Avenue in Collingswood, now a pre-existing non-conforming use under current zoning. The controversy here, however, centers around parking on the adjacent lot,1 formerly a gas station, which Saponara purchased in 1993. Both gas stations and automotive repair shops appear to have been permitted uses until 1979, when the Borough adopted a new zoning ordinance which generally precluded both uses in the district.

The question before the zoning board and the Law Division was whether automotive repair, and the temporary customer parking accessory thereto, were valid prior non-conforming uses on the adjacent lot, or whether either or both were improper expansions of Jafstram's prior non-conforming use. The zoning board determined that the automotive repair use on the adjacent lot had been abandoned, and thus any use of the adjacent lot for automotive repairs, including temporary parking in connection with repairs being performed on Jafstram's premises, was an improper expansion of Jafstram's valid prior non-conforming use. The zoning board further denied Saponara a use variance for automotive repairs and front-yard parking on the adjoining lot.

In a comprehensive thirty-nine-page written opinion tracing the record developed before the zoning board, Judge Silverman Katz concluded that the automotive repair use on the adjacent lot, and the temporary parking accessory thereto, had never been abandoned. She also found, however, there had been no parking in front of the building when the gas station was operating in order to allow access to the pumps. Instead, the judge found that parking in front of the building on the adjacent lot, accessory to the auto repair business conducted on that lot or to Jafstram's valid prior non-conforming use, did not begin until removal of the gas pumps by the prior owner during the 1980s.

The judge concluded that parking on the adjacent lot begun after enactment of the 1979 zoning ordinance was unlawful, never a valid prior non-conforming use and constituted an expansion or intensification of the parking accessory to the auto repair business conducted on that lot or to Jafstram's valid prior non-conforming use. The judge also agreed with the zoning board that plaintiffs failed to meet their burden of proving entitlement to a use variance.

Plaintiffs appeal, contending that the Law Division's finding that parking was not permitted in conjunction with the use of the adjacent lot "is inconsistent with the specific finding of a pre-existing non-conforming use for automobile repair, since parking was always an integral, incidental part of that use." They also contend that even if not deemed inconsistent, because parking is a permitted accessory use to an automotive repair business under current Borough zoning, the Law Division erred in finding they had not established the right to a use variance.

We review a decision of a board of adjustment or planning board using the same standard that governs the Law Division. CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 577 (App. Div. 2010). "A board's decisions are presumptively valid, and a court may not substitute its own judgment for that of the board unless there has been a clear abuse of discretion by the board." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013). The burden of demonstrating the board acted arbitrarily, capriciously, or unreasonably is on the challenger. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81-82 (2002).

Applying those standards here, plaintiffs have given us no reason to disturb the Law Division's decision affirming the board's decision denying them a certificate of non-conformity for front-yard parking as an accessory use to their automotive repair business and denying them a use variance for such parking.

The law governing non-conforming uses is clear, "such uses may be continued as of right, [but] they may not be enlarged as of right." Hantman v. Twp. of Randolph, 58 N.J. Super. 127, 135 (App. Div. 1959), certif. denied, 31 N.J. 550 (1960). Plaintiffs' argument that temporary parking is a permitted accessory use to automobile repair facilities under the Borough's current zoning which cannot be separated from the principal use, ignores that the car repair business they operate on both lots constitutes a prior non-conforming use. See Cox & Koenig, N.J. Zoning & Land Use Administration, 796-97 (2016) (cautioning against treating a normal accessory use to an existing principal use as permitted when it constitutes an obvious expansion of the principal non-conforming use requiring a variance under N.J.S.A. 40:55D-70d). The placement of the gas pumps on the adjacent lot, which the undisputed testimony established were not removed until after enactment of the 1979 zoning ordinance making auto repair facilities non-conforming, makes clear that front-yard parking was an expansion, not a continuation, of the non-conforming use. The judge's finding that plaintiffs failed to affirmatively establish either the positive or negative criteria for the grant of a variance, see Price v. Himeji, LLC, 214 N.J. 263, 285-86 (2013), is well supported by the record. That plaintiffs' non-conforming use has persisted over many years does not entitle them to a use variance for enlargement of the use. See Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 395 (1990).

We affirm the decision of the Law Division for the reasons expressed in Judge Silverman Katz's thorough and thoughtful written opinion of November 17, 2014.

Affirmed.


1 The block's lot identifier for Jafstram is block 38, lot 12.02. The adjacent lot is known as block 38, lot 12.03.


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