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Recent NJ Appeals Court Ruling May Bring Trouble for Victims of Superstorm Sandy

Property owners affected by Superstorm Sandy may be in for a big surprise as they try to re-build their homes and businesses. In a recent NJ Appellate Division case, Motley v. Borough of Seaside Park, No. A03214-11 the Court strictly construed N.J.S.A.40:55D-68, holding that the statute only allows a nonconforming structure to be rebuilt if it has been “partially” destroyed. If, however, the structure is held to be completely destroyed, than the grandfathered use no longer exists. Thus, according to the Court, a building gutted to a shell in order to make repairs may forfeit its grandfathered nonconforming use under local zoning laws.

The house at issue in the case was built in 1931, decades before the adoption of zoning laws limiting the area to single-family homes. The house violated restrictions on lot width, depth and area, as well as front-, rear- and side-yard setbacks and building coverage. But since it was a prior nonconforming use, it was grandfathered and not a violation of the existing code. However, after Superstorm Sandy, the building was gutted in order to perform what the owner believed to be necessary repairs due to damage sustained as a result of the storm. The Court deemed the property “completely” destroyed and held that it had forfeited its grandfathered, nonconforming use under local zoning laws.

The practical implications of this precedential decision will have a direct impact on Superstorm Sandy victims as they try to substantially repair and rebuild their homes and businesses. The land use attorneys at Lieberman & Blecher, P.C. assist property owners in all aspects of land use law, and have been assisting Sandy victims as they seek to restore their properties and rebuild their businesses and lives.

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