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Appellate Division Confirms Accessory Building’s Unused 80-Year-Old Plumbing Fixtures are Preexisting Nonconformity

Rantz v. Planning Board of the Borough of Bay Head, Docket No. A-2847-19 (App. Div. Sept. 8, 2021)

This month, the Appellate Division upheld the Planning Board of the Borough of Bay Head’s decision to grant a certificate of pre-existing non-conformity, declaring that a backyard accessory structure had plumbing in it for years prior to the homeowners’ purchase.

In Rantz v. Planning Board of the Borough of Bay Head, Docket No. A-2847-19 (App. Div. Sept. 8, 2021), the Appellate Division considered an appeal arguing the non-conformity was improper because plumbing fixtures cannot be nonconforming uses under the Municipal Land Use Law, and even if they could be, the evidence before the Board was insufficient to grant the non-conformity. The homeowners argued that the existing toilet and sink in the accessory structure had been installed before 1940, long before Bay Head’s 2003 zoning regulations were amended to exclude plumbing fixtures in accessory buildings in residential zones other than “clothes washers, dryers, and work sinks.”

The application was strongly contested because the homeowners’ public notice stated their intent to use the building as sleeping quarters for guests, when residential uses are not permitted for accessory buildings in the zone. Plaintiffs argued that bathroom facilities could not be certified because they are too closely related to residential uses. However, the applicants stated they would not use the building for residential purposes. The Appellate Division upheld the Board’s conclusion that the plumbing was a pre-existing non-conformity, noting that the Municipal Land Use Law permits both non-conforming uses and structures, and accepting the building as a non-conforming structure.

Intent to abandon the toilet and sink played a significant role in the decision. Although there was evidence from multiple witnesses that a prior owner had stopped actually using the fixtures, implying possible abandonment of the non-conforming use, a finding of abandonment requires intention to abandon. The Appellate Division upheld the Board’s finding that no evidence showed any owners had ever actually intended to abandon the use of the toilet and sink.

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