Non-Conforming Uses Involving Commercial Development

Protecting Your Property Rights in New Jersey

A non-conforming use of property is one that was lawful under previous law, but is now prohibited by an amendment to zoning ordinances. In New Jersey, as a general rule, the owner of commercial property may continue a non-conforming use without repercussion until the use is abandoned, terminated or substantially destroyed. If, as a commercial developer, the non-conforming use is advantageous to your project, you must be diligent to actively and continuously maintain the use, or you may lose it.

Here are the ways that a non-conforming use can be lost:

Abandonment of the Use

Many municipalities in New Jersey have ordinances which provide for the abandonment of a nonconforming use with the passage of time. These ordinances may not be lawful without the consideration of other factors. A temporary period where the non-conforming use is not in place will not necessarily result in the permanent loss of the use. The courts tend to look at two factors when seeking to determine whether a non-conforming use has been abandoned:

  • Was there an intent to abandon the use?
  • Was there a specific act or failure to act that implies or indicates that the owner “neither claims nor retains any interest in the subject matter of the abandonment.”

The courts in New Jersey have held that both of the above factors must be present. In addition, replacing a non-conforming use with a conforming use is always considered to be the abandonment of the non-conforming use.

Termination or Cessation of the Use

Once you have started using the property for some other conforming use, you may not return to the non-conforming use. For example, if you had a non-conforming retail use, and converted to apartments (a conforming use), you cannot reestablish a commercial use without a variance.

Substantial or Total Destruction of the Use

The loss of structures or buildings subject to a non-conforming use will terminate that use. For example, non-conforming uses in buildings destroyed by Hurricane Sandy may likely be lost. Most zoning ordinances in New Jersey establish a percentage of destruction that constitutes “total destruction.”

Contact the Law Office of Del Duca Lewis

At Del Duca Lewis, we offer five decades of commercial real estate and business law experience to clients across southern New Jersey and the greater Philadelphia area. As a testament to our knowledge, skill, experience and effectiveness, attorney Damien Del Duca has been named a New Jersey Super Lawyer. To schedule an appointment to discuss your real estate or business law needs, contact us by e-mail or call us at 856-427-4200.