Zoning Protections Lost For Hurricane Sandy Damaged Structures Deemed “Totally” Destroyed
The Appellate Division yesterday made it more difficult for property owners trying to rebuild after Hurricane Sandy. The panel in Motley v. Borough of Seaside Park, No. A-3214-11, upheld the Borough’s determination that a house that had been gutted to a shell to accomplish repairs was deemed “totally destroyed” and so lost its status as a grandfathered nonconforming use under local zoning laws. The Court strictly construed N.J.S.A. 40:55D-68, stating that the statute only allows a nonconforming structure to be rebuilt only if it has been "partially" destroyed. It overturned the trial court’s decision nullifying a stop work order issued by the Borough to prevent Plaintiff from restoring his nonconforming house back to its prior dimensions, which had been torn down to its footings and foundations. The Appellate Division rejected the trial court’s public policy reasoning that it was not unreasonable for Plaintiff to remove and replace the building's walls upon discovery of an unsafe and dilapidated condition of the existing walls because it was better to encourage a property owners' compliance with safety codes and allow the renovation of debilitated non-conforming structures as long as there is no unlawful expansion of the nonconformity. The Court refused to address the disagreement between the Plaintiff and the Board as to the percentage of the structure remaining and upon de novo review upheld the Board’s conclusion that Plaintiff had dismantled the structure to a degree beyond mere “partial” destruction.
The Law Office of Christopher D. Hopkins LLC regularly appears before municipal planning boards, boards of adjustment and governing bodies in connection with planning, zoning and land use matters. Should you wish for a free consultation to discuss the zoning and land use implications of any post Sandy rebuilding efforts, please contact me.
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The Law Office of Christopher D. Hopkins, LLC is a boutique law firm located in Scotch Plains, New Jersey committed to providing the highest quality of legal services in the select areas of real estate, land use and environmental law. The firm is committed to working collaboratively with clients to achieve practical, cost effective results- whether it be in complex litigation, transactions, cleanups and/or development projects. The firm provides transactional and litigation counsel to a broad spectrum of clients including private and public corporations, trade associations, nonprofit institutions, banks, real estate investment trusts and individuals in New Jersey, New York and Pennsylvania.
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