Non-Conforming Structure That is More Than “Partially” Destroyed Cannot be Rebuilt Without a Variance

Motley v. Seaside Park Bd. of Adj., 430 N.J. Super. 132 (App. Div. 2013).  N.J.S.A. 40:55D-68 allows a non-conforming use or structure to be “restored or repaired in the event of partial destruction thereof.”  This opinion, written by Judge Sabatino, addresses a situation in which a property owner demolished a structure down to its original foundation and footings and then sought to rebuild it.  The panel found that the facts here went beyond “partial destruction,” and reinstated a stop work order that the municipality had issued, but which the Law Division had vacated.

Judge Sabatino recognized that the issue at the heart of the case involved interpretation of the meaning of “partial destruction” in the statute.  The panel thus analyzed that issue de novo, with “no special deference to either the Board or the trial court on the legal question of whether plaintiff’s destruction of the building was ‘total’ or merely ‘partial.'”  Judge Sabatino rightly determined that the resolution of the defendant Board, though not as clear as it could have been, concluded that the destruction had been total.  The question then became whether the record supported that conclusion.  The Appellate Division found that it did.

Neither “partial destruction” nor “total destruction” is defined in the statute, as Judge Sabatino noted.  Thus, he measured the facts against a substantial body of prior caselaw on non-conforming uses and structure that he canvassed in the opinion.  Non-conforming uses and structures are not favored.  Perhaps as a result, the precedents collected by Judge Sabatino state that total destruction means “substantially totally destroyed.”  Judge Sabatino clarified that to mean “whether there has been some quantity of destruction that surpasses mere partial destruction.” 

The panel concluded that the destruction of the building at issue easily fell into that category.  Though the parties offered conflicting evidence as to the percentage of the structure that remained, Judge Sabatino stated that percentages are not controlling.  “Instead, we must consider whether the destruction is so substantial in nature– qualitatively if not quantitatively– to surpass the ‘partial’ threshold that the statute expresses.”  The demolition of all four walls of the structure here, leaving only the foundation and footings intact, qualified as more than “partial.”

The Law Division had granted plaintiff relief because the building turned out to have more damage than plaintiff had anticipated, and the judge believed that public policy favored the renovation of unsafe or dilapidated structures, even non-conforming ones.  The judge also felt that it would be too harsh for property owners who had to demolish such deteriorated structures if they could not rebuild, especially where, as here, the structure was not proposed to be any more expansive when rebuilt.  The Appellate Division did not agree.  Though the panel understood the Law Division’s concern, the response to that concern was one that was reserved for the Legislature or municipal authorities through appropriate ordinances.  Besides, the evidence here showed that plaintiff had not maintained the structure, which was the reason for its poor condition that required its total destruction.  The Law Division’s concern for innocent property owners was not applicable to this plaintiff.

Judge Sabatino also dealt with three other issues.  First, apart from the total destruction of the building, the fact that plaintiff’s demolition exceeded the work that was authorized by the permit he obtained from the municipality also justified the stop work order.  Second, there was no basis to apply equitable estoppel in favor of plaintiff, since plaintiff had gone beyond what the permit authorized and had himself created any hardship that he suffered.  Finally, for similar reasons, the doctrine of relative hardships did not aid plaintiff. 

This opinion contains much useful analysis of the caselaw involving non-conforming uses and structures, as well as authorities on the other issues presented.  It will be a good starting point for any subsequent case that involves any of those issues.