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Problems Rebuilding From Hurricane Sandy: Gutted Seaside Park House Loses Grandfathered Nonconforming Use Status - Motley v. Borough of Seaside Park, No. A-3214-11

Per The New Jersey Law Journal:

"Property owners trying to rebuild after damage caused by Hurricane Sandy or other disasters got what could be a bad-news ruling from a New Jersey appeals court on Monday.

"In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.

"The panel strictly construed a statute, N.J.S.A. 40:55D-68, which says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

"Whether the destruction is partial or total is not so much a matter of percentage but "whether [it] is so substantial in nature — qualitatively if not quantitatively — to surpass the 'partial' threshold that the statute expresses," Judges Jack Sabatino, Douglas Fasciale and Susan Maven held.

"The house at issue was one of two at 213 "O" Street in Seaside Park. The area is now zoned for single-family homes, but the houses were built in 1931, decades before the adoption of the zoning laws in 1972, and thus were prior conforming uses. They violated restrictions on lot width, depth and area, as well as front-, rear- and side-yard setbacks and building coverage."


"Grasso held that Motley did not act unreasonably once he learned of the building's poor condition and that the sounder policy was to allow debilitated nonconforming structures to be renovated as long as there was no increase in nonconformity.

"He relied on Krul v. Bd. of Adjustment, 126 N.J. Super. 150 (App. Div. 1973), which held that a commercial building that was completely destroyed by fire could be replaced even though it was nonconforming.

"The appeals court on Monday distinguished Krul on the ground that it involved destruction of a building that was a part of a complex used as "an integrated whole." In contrast, Motley's house was a stand-alone residence whose use was independent of the other house on the property.

"The appeals court also referred to the "well settled law of our state that disfavors the continuation of nonconforming uses and structures" because they undermine land use planning.

"The judges agreed with the board that removing the walls down to the foundation and footings "exceeds any reasonable notion of a mere partial demolition."

"They said they appreciated Grasso's concern that the limits on reconstruction could have harsh results for innocent homeowners but added that was for the Legislature to address."

Full article after the jump...