Agenda - Planning Commission - 10/03/1995

Home

z.g. September 15, 1995 -- Page 7 easternmost road. The boardwalk bisected the zone and had three amusement piers that extended eastward into the ocean. The zoning ordinance included as permitted uses in that zone "amusements, amusement games, amusement rides and amusement arcades." The ordinance did not list piers as permitted or con- ditional uses, and stated all uses not expressly permitted were prohibited. How- ever, it did state that expansion of existing amusement piers were "subject to the requirements of N.J. State Division of Coastal Resources." Mariner's Landing Inc. owned one of the amusement piers. In January 1990, Mariner's Landing acquired'the ocean-front lot immediately north of its pier. It wanted to expand the amusement pier to the east and north, so it applied to the board of adjustment for two use variances. The board granted both. In April 1992, while an appeal of the variances was pending, the city's planning board decided that expansion of existing amusement piers was con- sistent with the city's master plan. It recommended that the city council amend the zoning ordinance to allow expansion of existing piers, subject to certain bulk limitations and site-plan ~eview. In November 1992, following the planning board's recommendation, the city council adopted an amended ordinance that added certain bulk limitations and mandatory site-plan review of pier expansions. In the amendment's pre- amble, the city recognized that reasonable expansions of existing piers were "necessary to meet future expectations of tourists and keep abreast of develop- ments in the amusement industry." However, the amendment still did not de- clare, amusement piers to be permitted or conditional uses. Soon after the city council adopted the amendment, the planning board approved Mariner's Landing's site plan to extend its pier. In the meantime, Nickels (who operated another pier) and others sued to challenge the amendment's validity. They claimed it violated state law by al- lowing expansion of a nonconforming use. The trial court upheld the amend- ment, but the appeals court reversed. Mariner's Landing appealed to the state supreme court. DECISION: Affirmed. The appeals court properly reversed the trial court's decision to uphold the ordinance. The ordinance was invalid because state law prohibited municipali- ties from adopting ordinances that allowed nonconforming uses to expand. Because the city's ordinanCe did not recognize piers as permitted or condi- tional uses, they were nonconforming uses in the resort commercial Zone. As nonconforming uses, the cify could not authorize their expansion through the new ordinance. However, the city could authorize their expansion if it amended its ordinance to allow piers as permitted or conditional uses. Mariner's Land- ing could also renew its use variance application as required by a state statute that allowed boards of adjustment to permit expansion of nonconforming uses if the origi0al structure was not damaged. (Otherwise, the state statute pro- vided that nonconforming uses or structures could be repaired or restored only if damaged.)