The Appellate Division decision in the matter of Motley v. Seaside Park Zoning Board fleshes out challenges arising from rebuilding homes or other structures. While the decision makes no new laws, the holding contains a cautionary tale to be considered in any attempts to rebuild in the aftermath of Superstorm Sandy or other casualty. Ironically, the damage in this case was caused by a burst hot water heater, not any of the several “100 year” storms, including Sandy, that devastated parts of the State over the last several years.
In this case the house was a nonconforming use – legal when constructed but not consistent with current ordinance requirements. The owner obtained permits to renovate the house, including removing and replacing the roof. During that rehabilitation of the house the owner discovered that the damage was far more extensive than anticipated. As a result, the home was torn down to its foundation and the homeowner commenced rebuilding, without additional permits. A stop work order ensued and appeals and litigation followed. Nonconforming structures partially destroyed — by casualty or construction — may be rebuilt. Conversely, total destruction of a nonconforming structure does not permit rebuilding without approval to rebuild from the Zoning Board of Adjustment or the Planning Board, as may be applicable under the circumstances. In this case, the Board approval was not and likely could not have been obtained. So, the questions were addressed by the Court as follows: 
  1. Was the building substantially totally destroyed? The court concluded, as was evident given historical decisions, that the house was substantially totally destroyed and therefore could not be rebuilt. The concept of total versus partial destruction is a fact-sensitive concept without an objective test. Moreover, the concept of total destruction is not what we might commonly refer to as “total.” While specifically not endorsed by the Courts, one rule of thumb employed by various municipalities is that the unit is not totally destroyed as long as the foundation and two (2) walls remain. Regardless, the determination is fact sensitive and subject to local interpretation as long as that interpretation is not arbitrary, capricious and unreasonable or contrary to law. Given no bright line test of partial versus total destruction this issue can be rather vexing in some instances and particularly challenging when local officials prefer that structures not be rebuilt. 
  2. Did the property owner exceed the authority granted in the construction permit? In short, yes. The permit was for specific renovations and the owner undertook a total rebuild down to the foundation, albeit without exceeding the building footprint and envelope. Accordingly, even if the structure had not been “totally” destroyed, the stop work order was appropriate because the scope of the improvements far exceeded the permit issued.
  3. Did the principles of equitable estoppel or relative hardship apply? While the Court’s decision includes a discussion of the principles, this blog will not focus on these equitable remedies as they are rarely applied and should never been relied upon in properly handling approval to rebuild. Indeed, good practices would be to obtain a zoning permit and construction permit consistent with the construction to occur and not to rely upon these principles. Not unsurprisingly, the Court declined to apply these principles to these facts. 
A full copy of the decision can be found here.