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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A


Noncomforming Use,
Termination Decisions
and Public Comment

Deborah M. Kole
League Staff Attorney

Q A small neighborhood grocery store has been operating in our neighborhood for a number of years as a nonconforming use, because years ago the neighborhood was a mixed use zone rather than a residential zone as it is now.  Frankly, it was always an eyesore in our rather upscale neighborhood, and when it closed over a year ago, I was delighted.  For the first few months, it had signs in the window seeking help to run the store.  Soon after, we heard that the owners were trying to negotiate a sale of the grocery business and property.  Now the owners say they have found people to manage the store and wish to renew their license and open for business again.  They have applied to the Board of Adjustment to do so.  Haven’t they abandoned their nonconforming use by ceasing operations for over a year?

A A recent Appellate Division case has confirmed that, unlike some other states where an objective test can be used to determine that a nonconforming use has been abandoned after a stated period of time, New Jersey still uses a subjective test to determine the intent to continue such a use.  In S&S Auto Sales, Inc. v. Borough of Stratford Board of Adjustment, 373 NJ Super 603 (App. Div.2004), the Court overruled an attempt by the trial court to use such an objective test to determine abandonment in a case concerning an auto sales business that had been closed for thirteen month.

The Appellate Division went on to overrule the Board of Adjustment’s determination that the nonconforming use had been abandoned even though it had used the correct subjective intent standard, because its finding was against the weight of the evidence. No structural changes had been made to the property showing any intent to abandon the use, and no efforts were made to start any other usage of the property.  Any attempts to sell the property were made to prospective buyers who would continue the nonconforming use.  Therefore, the Court found that the use had not been abandoned.

Therefore, if the grocery store owners in your neighborhood have not taken any actions to change the property or its use during the time the store was closed, mere cessation of business activities for a year will not by itself constitute the abandonment of the nonconforming use


Q We  have a Mayor-Council form of government under the Faulkner Act. I am a department head. Like many municipalities, we are operating under budgetary constraints.  As a cost-saving measure, the mayor recently terminated the office manager in my department without consulting me.  Frankly, I depended on the office manager quite a bit, and although I believe the mayor terminated her for the reason given, I do not agree with his decision.  Doesn’t the law require that removal of such an employee be made by the mayor and department head together?

A While it is true that N.J.S.A. 40:69A-43 (d) requires that subordinate department officers and employees can be removed by the department head only with the concurrence of the mayor, an Appellate Division case pointed out that this requirement does not work both ways.  In Faber v. Borough of Hawthorne, 365 N.J. Super. 54 (App.Div.2003), the Court found that the mayor does not require the concurrence of the department head to remove such an employee, especially when the reason for the action is budgetary rather than performance-based.  Therefore, such a termination is valid.

Q I am a new member of our municipal Planning Board, and I have noticed that the Board does not provide time for public comment at its meetings like our governing body does.  Isn’t the Planning Board subject to the Open Public Meetings Act just like the governing body is, and therefore, doesn’t time have to be set aside for public comment?

A The Planning Board is certainly subject to the Open Public Meetings Act (OPMA), and therefore its sessions are open to the public and must be properly noticed under the Act so that the public has the opportunity to attend.  However, the particular provision of OPMA, N.J.S.A. 10: 4-12 a., that requires time to be set aside at a meeting for public comment applies only to meetings of municipal governing bodies.  While allowing time for public comment at Planning Board meetings is good public policy, it is not a legal requiremen

This column is for informational purposes only, and is not intended as legal advice.


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