There was one published decision on land use in the New Jersey appellate courts this week. Motley v. Borough of Seaside Park Z.B.A. addressed the question of destruction, as used in N.J.S.A. 40:55D-68, and upon which the continued toleration of a nonconforming use turns. In this case, the plaintiff-respondent submitted a plan to the Seaside Park Z.B.A. for certain renovations to his property, which contained two residential structures — a nonconforming use in what has been a single-family zone since the 1970s. The Board approved his plan, but upon getting to work the plaintiff’s contractor apparently discovered significant structural issues that required taking the structure down to its foundation and footings. After a building inspector observed the extent of the demolition, a code-enforcement officer issued a stop-work order. Plaintiff lost an appeal to the Z.B.A. to lift the order. The lawsuit followed.
At issue was whether the plaintiff’s extensive dismantling and re-mantling had merely constituted a partial destruction of the non-conforming use, which would have required that use to continue to be tolerated under the borough’s zoning ordinance; or whether his actions had constituted a total destruction, after which any new construction on the parcel would have to conform to the present specifications of the ordinance. The trial court found, among other things, that the plaintiff’s actions had only constituted a partial destruction, and that policy reasons (viz., the importance of encouraging the proper maintenance of non-conforming structures) also supported allowing the plaintiff to rebuild. Accordingly, the Law Division vacated the stop-work order. But in an opinion published this week, an Appellate Division panel reached different conclusions and reversed the trial court’s order. The A.D. noted that New Jersey case law is generally opposed to extending the lives of non-conforming uses. Comparing the facts with those of the Lacey case, and others, the court concluded that a total destruction had taken place. Thus, a variance would have to be obtained in order to build something on the parcel that contravened the land use ordinance. In addition, the court found that the plaintiff had flouted the limits that the Board had initially set on his actions. Finally, the panel was unpersuaded by the policy reasons given by the trial court. Accordingly, it reversed the lower court’s decision vacating the stop-work order.
There was one unreported land use decision in the A.D. last week. I missed it at the time, because I was tied up with an event at one of the research centers, so here’s the belated squib: In Sharbell Building Company LLC v. Planning Board of the Twp. of Robbinsville, a three-judge panel affirmed a final judgment of the Law Division that had reversed the Board’s denial of an application to convert an approved, age-restricted housing complex into a development for residents of all ages. The court held that state legislation facilitating the approval of such conversions (in response to the changing housing marketplace) superseded the township’s zoning ordinance; and that prior to rejecting the proposal, the Board had focused on the wrong issues when it considered the impact of possible additional children on the local tax base, rather than considering the land use implications of the proposal. (You’ve gotta love it.) As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.