The Appellate Division rejected an East Brunswick car wrecking business’s attempts to keep selling used cars without a use variance, holding it was not a preexisting nonconforming use, in Hidden Oak Woods, LLC v. P&F Giancola, d/b/a Giancola Wrecking and Auto Sales, 2021 N.J. Super. Unpub. __ (App. Div. 2021), Docket No. A-2704-19.

Property owners selected for an inclusionary housing development, Hidden Oak Woods in East Brunswick, sued Giancola Wrecking and Auto Sales, the Township, and the Township zoning officer in 2017. Hidden Oak Woods claimed Giancola, which is across the street from them, harmed the marketability of their housing development and violated the 1952, 1963, and current zoning laws by selling used cars on the lot. They also alleged signage, parking, and fencing violations.

Giancola’s previous owners obtained a use variance in 1955 that allowed them to do wrecking, salvage and storage on the site. The variance did not permit them to sell used cars. Giancola argued that they should be allowed to sell used cars because they began selling the cars before it became a prohibited use, so it was a preexisting nonconforming use. However, they never applied for a certificate of nonconformity as required by state law.

Interestingly, even though the Township was named as a defendant, the Township agreed with Hidden Oak Woods in court, saying Giancola violated zoning laws by selling used cars without a permit.

The trial court granted summary judgment to Hidden Oak Woods, and the Appellate Division agreed, holding that selling used cars was not a preexisting nonconforming use and caused harm to the housing development. The appellate court focused on the fact that selling used cars “intensified and expanded” Giancola’s use of the property, creating a negative impact for Hidden Oak Woods’s housing development.

The holding emphasizes the rights of property owners to enjoy their property—and profit from it—without negative impact from neighbors’ activities.