Motley v. Borough of Seaside Park Zoning Board of Adjustment, A-3214-11T4; Appellate Division; opinion by Sabatino, J.A.D.; decided and approved for publication March 4, 2013. Before Judges Sabatino, Fasciale and Maven. On appeal from the Law Division, Ocean County, L-373-11. [Sat below: Judge Grasso.] DDS No. 26-2-9187 [32 pp.]

Plaintiff Daniel Motley is the owner of property in Seaside Park’s R-3 zone, which is restricted to single-family uses. The property is a pre-existing nonconforming use, as it contains two single-family dwellings, a front building occupied by plaintiff and a rear building occupied by his brother.

Plaintiff applied for a zoning permit to allow repair and renovation of the front building. He included the construction plans with the application.

The borough’s zoning officer, James Mackie, approved the application. However, he noted on the approval form that there was to be "no expansion of [the structure's] dimensions" and "siding, shingles, additional [windows] only — no bumpouts."

As work on the house progressed, it became clear that there was more damage to the structure than was initially known. Eventually, a building inspector determined that the entire structure needed to be removed. Plaintiff proceeded with the demolition without contacting Mackie.

The borough’s code enforcement officer issued a stop-work order after discovering the extent to which the front building had been demolished. By the time plaintiff received the order, only the original foundation and footings remained and new wall frames had been erected.

Plaintiff sought to have the stop-work order vacated by defendant board. He contended that the construction plans sufficiently alerted the borough to the possibility that the walls might need to be removed. In the alternative, he asked the board to grant him a use variance to allow the construction to continue.

One of the factors the board considered was zoning ordinance § 25-616(E), stating that a pre-existing nonconforming use may be repaired or maintained, so long as the repair or maintenance does not result in the "total destruction" of the property.

The board denied plaintiff’s application to lift the stop-work order, finding, inter alia, that the demolition and reconstruction effected by Motley far exceeded the zoning approvals granted.

The Law Division reversed the denial of plaintiff’s request to lift the stop-work order and allowed him to reconstruct the walls and loft, provided that the structure’s dimensions not be expanded. It rejected plaintiff’s invocation of the doctrine of equitable estoppel as an independent basis for relief.

The board appealed.

Held: The trial court’s decision to nullify the stop-work order is reversed because N.J.S.A. 40:55D-68 allows a nonconforming structure to be rebuilt only if it has been "partially" destroyed and the extent of the demolition exceeded this standard, and because plaintiff’s dismantling of all of the interior and exterior walls and his attempt to rebuild the house exceeded the scope of the zoning permit that had been issued to him. The trial court’s rejection of his separate claim that the stop-work order should be invalidated by principles of equity is affirmed.

The panel first notes that it is well-settled that New Jersey law disfavors the continuation of nonconforming uses and structures and municipalities may impose restrictions on nonconforming uses, including prohibiting their expansion.

N.J.S.A. 40:55D-68 provides that a nonconforming use or structure may be restored or repaired in the event of partial destruction. Total destruction, whether by the owner’s design or by accident, terminates a nonconforming use and the owner’s right to continue that use.

Neither "partial destruction" nor "total destruction" is defined by 40:55D-68. Case law has established that what comprises "partial destruction" depends on the facts of each case, and that a specific percentage delineation by ordinance is not authorized.

The panel says the board made no finding as to whether the front building had been totally destroyed. However, the clear implication of its resolution findings is that it found that plaintiff had dismantled the structure to a degree beyond mere "partial" destruction. That clearly implied finding of total destruction is supported by the record as a matter of law. Plaintiff’s removal of all of the walls down to the foundation and footings exceeds any reasonable notion of a mere partial demolition.

The panel says the trial judge was swayed by policy considerations, i.e., that a sounder policy approach was to permit the renovation of debilitated nonconforming structures, as long as there is no unlawful expansion of the nonconformity. The panel says that policy concern is best reserved for a potential legislative response.

Moreover, the trial court’s policy concerns about hardship to innocent property owners are misplaced here where the record suggests that the damage to the structure could have been prevented or abated with proper care. If an owner such as plaintiff allows his nonconforming building to degrade into a poor condition that requires a complete destruction of the building, the municipality should be permitted to terminate that use and require conformity.

The panel says the stop-work order was also justified by plaintiff’s improper conduct in exceeding the limitations of the zoning permit that had been issued to him. Having gone well beyond the permit’s limitations, plaintiff cannot fairly complain about the board’s actions enforcing those limitations.

The panel rejects plaintiff’s contention that the board and municipality should be equitably estopped from complaining about the destruction of the property since the issuance of a zoning permit entitled him to perform the extensive renovations that he ultimately undertook. The panel says the application of estoppel requires proof of, inter alia, proper good-faith reliance on the issuance of the permit. Plaintiff exceeded the scope of the zoning approval and created the very problem from which he now seeks to extract himself. The circumstances do not present a situation where a person has reasonably relied on a zoning official’s express permission to do something.

The panel also rejects plaintiff’s argument that the stop-work order should be overturned based on a notion of relative hardship. That concept can apply when mistakes are made by local officials in issuing permits despite violations of zoning ordinances. Mackie acknowledged that he had overlooked certain aspects of plaintiff’s plan when it was submitted. However, that oversight did not fundamentally cause plaintiff’s financial loss. The root cause of plaintiff’s loss was his ignoring the limitations of Mackie’s approval and in failing to consult with local officials when it appeared that all of the walls needed to be removed.

For appellant — Gregory J. Hock (D’Arcy, Johnson, Day). For respondent — E. Allen MacDuffie Jr. (MacDuffie Law).