Whenever a municipality adopts or amends a zoning ordinance, uses or structures that were previously conforming are no longer so. For instance, a municipality may adopt a zoning ordinance that prohibits a gasoline station that had originally been allowed in the zone district. Other times, a new zoning ordinance is adopted that changes the bulk requirements which results in a previously conforming structures suddenly being non-conforming.
When this occurs, the existing use or structure may continue. The New Jersey Municipal Land Use Law (MLUL) defines such a use or structure as being a lawful, pre-existing, non-conforming use or structure. In layman's terms, this means the use or the structure is grandfathered. However, a property owner so affected should take steps to protect himself from challenges to the lawfulness of the use or structure in the future. He can do so by seeking a Certificate of Non-Conformity as allowed under Section 68 of the MLUL.
An affected property owner can apply for a certificate within one year of the adoption of the ordinance that renders the use or structure unlawful. If the property owner fails to do so within one year, he would be forced to file a land use application with the Board of Adjustment.
The Certificate of Non-Conformity will be issued if the applicant can demonstrate that the use or structure lawfully existed prior to the adoption of the zoning ordinance and has not been discontinued or abandoned since that time. Obviously, the sooner the application is made following the new zoning ordinance, the easier it is to demonstrate one's entitlement to the Certificate of Non-Conformity.
Often, an applicant is challenged by allegations that the use has been abandoned. Under New Jersey law, the abandonment of a prior pre-existing non-conforming use or structure could result in the forfeiture of the use or the structure. Importantly, abandonment is not simply the non-use of the building or property. Abandonment can only be established if there is an intent to abandon and some overt act demonstrating the decision to not use the property or building. If abandonment is proven, the property owner would have to seek variance relief to resume use of the property.
To avoid such an outcome, a property owner must promptly seek a certificate of non-conformity once he is made aware that the municipality has adopted an ordinance which prohibits the use of his land or the structures on it. Moving expeditiously enhances the property owner's likelihood of proving his entitlement to the certificate and avoids any arguments that the use of the property or structures were abandoned.