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Protecting your Property Investment: Local Land Use & Zoning Laws in New Jersey

WEINER LAWInsightsLand Use & Zoning DefenseProtecting your Property Investment: Local Land Use & Zoning Laws in New Jersey

Land Use & Zoning Defense Tuesday, June 18, 2019

Interested in protecting your property rights from your local municipality in New Jersey? The answer is simple: do your due diligence by researching all current land-use laws which effects your property rights. Trust me, you’ll thank me for this unsolicited advice because this information will likely save your property interest(s) from doom.

Protecting your property investment

There are some property owners who are unfamiliar with the local zoning laws that govern their property. For that I respectfully say, shame on you! When your local government enacts policy that affect your property rights, it is prudent to understand these laws – ignorance of the law is not an excuse. And failing to understand the how local zoning laws affect your property rights may have catastrophic – life threatening impact. Well, the term “life threatening” may be a little dramatic. But the consequences can be severe nevertheless, especially for owners that own investment properties. Don’t risk your investment – learn to protect it.

Just recently, the New Jersey Superior Court issued a ruling involving an important zoning law subject – preexisting -nonconforming uses. The Court in Rajandra and Sarita Gupta v The Town of Dover Board of Adjustment set the guide on how to preserve a pre-existing-nonconforming use after the structure has been substantially and totally destroyed by fire.

This case involved owners of a property that contained a rooming house with 18 rooms. The zone district, in which the property was located did not permit rooming houses.  However, the rooming house was allowed to exist as a result of a decision by the Town’s Zoning Board – the use of the property as a rooming house was deemed a valid pre-existing, nonconforming use.

One day a fire occurred at the property which caused extensive damage to the building. The Town hired a fire expert to assess the damages. The expert concluded that the property was substantially destroyed. As a result of this assessment, the Town issued a letter of denial for a zoning permit to repair or rebuild the building. The letter also stated that the use of the rooming house was no longer a permitted use in the zone.  As such, the owner lost its pre-existing, nonconforming status due to the structure being substantial and totally destroyed.

The owners appeal this decision to the Town’s zoning board. During the hearing, the owners presented an expert witness that disagreed with the Town’s initial assessment that the structure was substantially destroyed by fire. The board concluded that the quantity of destruction surpasses mere partial destruction and, therefore the board deemed the Town’s assessment appropriate. This decision was later affirmed by the Superior Court.

While the Court’s ruling was a victory for the Town, the owner was never without any recourse. Rather than seeking the approval after the rooming house was destroyed, the owner should have exercised its right under the town’s local zoning laws and sought variance relief before losing the property. By obtaining a variance prior to the fire, the owner would have insured itself against all substantial and total destruction of the property.

That way, had the owner received variance relief, then the destruction of the structure would have not mattered so much. The variance would have allowed for the continuation of the pre-existing, nonconforming use, despite the fire.

Payton C. Rogers, Esq.Payton C. Rogers, Esq., joined the firm as an associate in 2018. He concentrates his practice in redevelopment, land use, municipal and education law. Payton is experienced with the preparation and negotiating of tax abatement applications, redevelopment, financial, purchase and sale agreements as well as the general representation of municipal government. Prior to joining the firm, Payton worked as an Assistant Corporation Counsel for a local municipality, and he previously served as the judicial law clerk to the Honorable Daniel J. Yablonsky, J.S.C., in Essex County.