Agenda - Planning Commission - 06/06/2013

Home

April 25, 2013 I Volume 7 I Issue 8 Zoning Bulletin Motley proceeded with the demolition without contacting the ZO. Eventually, the entire structure was removed, except for the foundation and the footings. In February 2010, after discovering the extent of demolition to the Build- ing, the Borough's code enforcement office issued a stop work order. The ZO explained that Motley's demolition went beyond the scope of the zoning permit. Motley contested the issuance of the stop work order and sought to have it vacated by the Board. The Board denied Motley's application to lift the stop work order. The Board based its decision on its determination that Motley's actions amounted to "total destruction" of the Building and exceeded the parameters of Motley's zoning permit. The Board referenced the Borough's zoning ordinance § 25-616(E) (the "Ordinance"). The Ordinance stated that a preexisting nonconforming use may be repaired or maintained, so long as the repair or maintenance did not result in the "total destruction" of the property. New Jersey statutory law (N.J.S.A. 40:55D-68) similarly provides that: "[a]ny nonconforming . . . structure . . . may be restored or repaired in the event of partial destruction thereof." Motley filed a legal action, seeking to overturn the Board's decision. The trial court reversed the Board's decision and lifted the stop work order. The court found that replacement of the Building, without altering the original dimensions, was "not unreasonable . . . upon discovery of the unsafe and di- lapidated condition of the existing walls." The Board appealed. DECISION: Affirmed in part and reversed in part. The Superior Court of New Jersey, Appellate Division, disagreeing with the trial court, held that the "stop work" order was justified by Motley's: effec- tive "total destruction" of the Building —in violation of the Ordinance and N.J.S.A. 40:55D-68; and improper conduct in exceeding the limitations of the zoning permit. In so holding, the court noted that the policy with preexisting nonconform- ing uses is "to restrict them closely." Moreover, noted the court, "given the statutory objective to eradicate nonconforming uses over time, local govern- ing bodies may not adopt ordinances that authorize the restoration or replace- ment of all nonconforming structures, even on the condition that the cubic size of the replacement structure does, not exceed the size of the existing structure." Analyzing N.J.S.A. 40:55D-68, which again provides that: "[a]ny noncon- forming . . . structure . . . may be restored or repaired in the event of partial destruction thereof," the court noted that the statute did not define "partial destruction." The court determined that, in analyzing whether more than "partial destruction has occurred," it must "consider whether the destruction is so substantial in nature qualitatively if not quantitatively —to surpass the `partial' threshold that the statute expresses." Here, the court agreed with the Board's position that Motley's removal of all of the walls of the building down to the foundation and footings exceeds any reasonable notion of a mere partial demolition. The court also held that the stop work order was justified by Motley's 10 ©2013 Thomson Reuters