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Beyczi v. Romeo

A-1281-97T1 (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; VARIANCES; NON-CONFORMANCE—Allowing a property owner to demolish a non-conforming structure and replace it with a less non-conforming structure without requiring a variance violates the Municipal Land Use Law.

A property owner acquired two lots containing a single family home and a bungalow. A title search showed the bungalow located on a portion of an adjacent lot. Consequently, the property owner acquired the adjacent lot to eliminate the encroachment. Ten years later, the property owner demolished the bungalow and obtained permits to construct a pole barn on the property. The barn consisted of a first floor garage and a second floor residential apartment. It was larger than the original bungalow and overlapped the footprint of the original bungalow at only one corner. However, the new location of the barn decreased the side yard setback nonconformities. The property owner sought and obtained a certificate of occupancy. After objections were raised about the use of the barn as a residence, the property owner filed an application with the board of adjustment seeking an interpretation of the zoning ordinance to the effect that the barn was a valid structure and that a use variance was not required for residential use of the barn. In the alternative, he requested a use variance to use the barn as a second residence on the property. The board found that although demolition of the bungalow constituted a complete destruction of a nonconforming building, its restoration was not barred or prohibited because the structure was not destroyed “by reason of windstorm, fire, explosion or other similar act… .” It also found that replacement of the bungalow with the pole barn and apartment constituted a permissible enlargement of a nonconforming structure and that the relocated and reconstructed building reduced the degree of setback nonconformity. Thus, the board did not require the property owner to seek a use variance. Following that ruling, neighbors filed a complaint challenging the board’s action. The lower court reversed the action of the board, and said that a use variance was required. It reasoned that the board’s position that the property owner could demolish a structure with a nonconforming use and thereafter continue the use in a new nonconforming building without seeking a variance was clearly inconsistent with the Municipal Land Use Law. Its conclusion was that any preexisting rights that the landowner had allowing it to maintain a second residential use or structure terminated when the bungalow was demolished and thereafter all necessary bulk variances and a use variance were required in order to construct a pole barn. The Appellate Division upheld the lower court’s ruling and found that under the municipal ordinance, a nonconforming use of a structure “may be restored or repaired in the event of partial destruction.” Thus, according to the Court, if this were simply a case of repair to the bungalow without expansion, a variance would not be required. However, expansion of a nonconforming use or structure is not favored. The statutory language in N.J.S. 40:55D-68 was held to mean that a nonconforming structure that is totally destroyed may not be restored except pursuant to a variance.


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