It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).
Sometimes, though, a well-intended law has unintended consequences.
In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws. The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.
Contaminating this seeming miscarriage of justice, though [emphasis added],
In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit. The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.
Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable. Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.
This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.
New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written. The failure is in the law itself, not in the ruling.
Now it’s on the New Jersey legislature to correct this evident injustice.