On October 29, 2012, Superstorm Sandy devastated many areas of New Jersey, with the coastal areas seeing unprecedented devastation. Residents and business owners from the Jersey Shore, including the bayshore areas, face the daunting task of rebuilding. Many business and property owners, however, cannot simply apply for a building permit to replace damaged structures. For many, it will be an uphill legal battle to rebuild. This is particularly true for property owners who had been operating nonconforming uses.
Many businesses and residences in the shore area were constructed many years ago, before local zoning codes were adopted or subsequently amended. When municipalities subsequently adopted or amended their zoning ordinances, some existing uses were rendered prohibited. Those existing, but subsequently prohibited uses, are known as nonconforming uses.
The Municipal Land Use Law (“MLUL”) defines a nonconforming use as “a use or activity which was lawful prior to the adoption, revision, or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.” N.J.S.A. 40:55D-5. When a person lawfully uses the land, buildings, or premises, and applicable zoning regulations are subsequently amended, he or she “acquire[s] a vested right to continue in such form, irrespective of the restrictive zoning provision.” Belleville v. Parrillo’s, Inc., 83 N.J. 309, 315 (1980).
To protect that right, the MLUL states that “[a]ny nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.” N.J.S.A. 40:55D-68. Thus, the law protects the continued existence of nonconforming uses absent abandonment or more than partial destruction.
However, in the event of more than partial destruction, even if such destruction is due to fire or a natural disaster, the property owner loses vested rights to the structure and/or use. “Partial destruction,” unfortunately, is not clear cut. Most towns have definitions that vary from 30% destruction to up to 50% destruction. Towns also vary on the unit of measurement. Some look to the size of the structure, while others look to its taxable value. Some of those types of ordinances, however, have been overturned by the Court in favor of a fact-based determination in each case. Thus, absent total destruction, whether an owner still has vested rights to continue a nonconforming use can be extremely fact sensitive and will vary from town to town.
If the structure housing the nonconforming use was indeed more than partially destroyed, the owner will need to apply to the local Zoning Board of Adjustment for a use variance pursuant to N.J.S.A. 40:55D-70(d), among other approvals. The standard for obtaining a use variance is difficult to meet, and at least five members of the Zoning Board of Adjustment must vote to approve the variance. Even if successful, the applicant will still incur costs for application fees, escrow deposits, engineering and other design professional costs, and, if a business entity, attorneys fees.
Therefore, although property owners are not absolutely prohibited from reconstructing nonconforming uses, they should be aware that gaining the necessary governmental approvals may be costly and time consuming.
Jennifer P. Smith is an Associate in the Gibbons Real Property & Environmental Department.
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“From Ink to Occupancy, A Game Plan for a Successful Real Estate Project,” the latest installation of the Gibbons Women’s Initiative Seminar Series, was held earlier last week and attracted a great crowd, including real estate professionals and in-house counsel. Ivette P. Alvarado, Nancy A. Lottinville, and Jennifer M. Porter guided attendees through the nuts and bolts of a commercial real estate contract, due diligence and the land use approvals process, with a focus on New Jersey and New York. A portion of the program was also dedicated to the current “Hot Topics” of real estate in New Jersey and New York, including FEMA’s Advisory Base Flood Elevations and cross-access easement issues. Thanks to various requests from attendees for more information, the RPE Law Alert will be posting blogs over the course of the next few weeks expanding on the topics covered during the program. Watch for the next installation: “Properly Identifying the Property in the Contract: Are You Sure You Know What You’re Getting?”
