NJ App. Div. Reinforces Standard for Abandonment of Nonconforming Use

In 2006, Plaintiff leased a piece of commercial property located in the Amusement Zone (Zone A) of the Wildwood Boardwalk. The prior owner of the property operated a business that provided body piercing and tattooing services on the subject property. In order to engage in the business of tattooing and body piercing, the prior owner was required to obtain a separate mercantile license for each activity. In 1994, the City passed Ordinance §276-26 prohibiting tattooing and body piercing in Zone A of the Boardwalk; however, both practices were grandfathered in as nonconforming uses on the property under N.J.S.A. 40:55D-5. The prior owner of the subject property applied for a renewal of her tattooing license but not her body piercing license, thereby limiting her operation to tattooing. In 2006, the plaintiff began leasing the property and took over the prior owner’s tattoo business. In conformance with the prior owner’s required practice, the plaintiff filed a renewal application for tattooing only. From 2007-2010, the plaintiff applied for a tattooing license as well as a body piercing license. Each year, plaintiff’s renewal applicaion was granted for his tattooing practice but denied for his body piercing license because the zoning officer determined the use was nonconforming in Zone A. In June 2011, plaintiff brought two applications before the Board seeking 1) to expand body piercing into the adjacent building; and 2) to seek review that the activity of body piercing had been abandoned on the property. The Board found that the prior owner of the subject property had abandoned her body piercing operation by failing to renew her body piercing renewal license while successfully renewing her tattooing license. Thereafter, plaintiff filed a complaint in lieu of a prerogative writ arguing that the Board acted in an arbitrary, capricious and unreasonable manner in finding that the use had been abandoned. The trial court concluded that the Board’s determination was amply supported by the record and was not arbitrary, capricious or unreasonable. Plaintiff appealed, arguing that there was no intent to abandon body piercing by the prior owner. The Appellate Court found this argument to be without merit and applied the test for abandonment articulated in S&S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford,, 373 N.J. Super. 603, 613 (App. Div. 2004). Relying on S&S, the Appellate Court stated that the test for abandonment requires the concurrence of two factors: 1) an intention to abandon, and 2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. Id. Applying the facts to the legal standard for abandonment, the Appellate Court found that the record demonstrated that abandonment occurred prior to plaintiff’s tenancy when the prior owner failed to renew her body piercing license. This failure to renew was what the Appellate Court referred to as an “objective manifestation” of the prior owner’s intent and thus the use was abandoned before the plaintiff began his operation. DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in zoning, land use and local government matters. For additional information about the matters in this bulletin or in the firm’s land use, zoning and municipal please contact Jeffrey B. Lehrer, Esq. The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.


DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.