What Can I Do On My Own Property? A Primer on Permitted Uses

Imagine your family has owned a property your great grandfather purchased in 1920. Now imagine that when you try to get a permit from the town, they tell you their records do not indicate that the use on the property was ever approved by the town for its present use. Oh, and by the way, that use of the property is not permitted under current law. Now the town says that in order to continue to use the property, as your family has for decades, you need to either obtain a use variance or prove that the use existed prior to the enactment of the town’s ordinances.
This situation has become all too common. A use variance is the most difficult approval to obtain, especially if the use is not favored by your neighbors or the community at large. That is why we advise clients to first try and prove that the use existed before the enactment of the town’s ordinances. This type of use is referred to as a pre-existing, nonconforming use and is governed by N.J.S.A. 40:55D-68 of the Municipal Land Use Law. However, if you do not seek a zoning certificate from the Zoning Officer within one year of the enactment of an ordinance prohibiting the use on your property, you must make an application to the Zoning Board of Adjustment.

The problem is many town ordinances have been in place since the mid 1900’s. Finding evidence that a use has existed for 60-80 years is no small feat! There are some valuable resources which can help. Below are just a few of them:

1. OPRA Request – An OPRA (Open Public Records Act) request is a written request made to a governmental entity requesting certain information. In this particular case, you file an OPRA request to various municipal departments asking for any information/documentation they have about the Property. These include the Building Department, Zoning Department, Land Use Boards and Tax Assessor/ Collector Office.

2. Title Report – Order a title report on the property. There may be helpful information in the prior deeds or other documents recorded against the Property.

3.Tax Records – Sometimes there are notations in tax records which describe a property’s use. In Bergen County, for example, the County Tax Office has all of the past tax records for each municipality. However, you better know how to use microfilm because that is how they are stored!

4.San Born Maps – These are historical maps of municipalities that were initially created to estimate fire insurance risks. However, occasionally these maps provide critical information that strengthens our case.

5.People and Pictures – The most compelling evidence are people and pictures. People who were alive when the property was purchased and can discuss the history of the property. To have a witness who can speak to them about the history of the property, and the town as a whole, is very valuable. Unfortunately, those witnesses are not always available. The next best thing is pictures. One client provided the Board with dozens of pictures from the 1940’s proving the use predated the ordinances. That was a major reason the application was approved.

It is important to take this information and create a narrative that leads one to conclude that the use predates the ordinance. These applications can get awfully confusing, so it is extremely important to organize your facts as if you are telling the Board a story. If you are confronted with a similar situation, please feel free to contact our office and schedule a time to review the matter in greater detail.

Andrew S. Kohut is an Associate Attorney at WJ&L who actively practices in the Land Use and Real Estate Areas.

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