Posted by: Patricia Salkin | June 6, 2019

NJ Appeals Court Holds Owner was Not Required to Seek Approval from City Planning Zoning Board Before Elevating Townhouse Following Hurricane Sandy

This post was authored by Matthew Loeser, Esq.

Defendants Kevin Iannuzzi, the City of Margate, and two city officials, James Galantino and Roger Rubin, appealed from a trial court order and an order denying reconsideration. The trial court overturned Margate’s approval of Iannuzzi’s plan to demolish his beachfront townhome, which was damaged by Superstorm Sandy, and replace it with an elevated and enlarged free-standing residence. The court also rejected Iannuzzi’s alternate plan to rebuild and elevate the townhome using its original footprint. In determining that Iannuzzi could not build a free-standing house and that any replacement structure could not be elevated, the trial court relied on a Declaration of Covenants and Restrictions that took effect in 1978 when the townhome development was built.

At the outset, the court noted that in August 2017, after the trial court decided the case, the Legislature amended N.J.S.A. 58:16A-103, concerning flood-safe construction. The Act, originally adopted in 2013 in response to Superstorm Sandy, prohibited enforcement of development ordinances that would prevent certain flood-safe construction, including the otherwise lawful raising of a Sandy-damaged structure. The court found that Iannuzzi’s statutory right to elevate his townhome did not depend on whether the townhome or the development as a whole suffered “substantial” damage within the meaning of Margate’s flood safety ordinance. Under the statute, structures are to be raised in their “original dimensions” to the “appropriate” elevation and no more. The court determined that this requirement must be read in pari materia with the requirements that the original dimensions of the structure be maintained and the elevation be no more than necessary. Thus, the owner could raise the entire structure several feet off the ground, while maintaining the original dimensions of the structure and the original amount of living space. Accordingly, N.J.S.A. 58:16A-103, as amended, applied to Iannuzzi’s townhome and permitted him to elevate the structure as required by current flood-safety standards.

Lastly, the court rejected plaintiffs’ argument that Iannuzzi was required to seek an amendment to the original site plan for the townhouse development because a site plan did not qualify as a “development regulation” from which Iannuzzi was exempt under N.J.S.A. 58:16A-103. However, N.J.S.A. 58:16A-103(b)(1) set forth that a person is “exempt from any development regulation, including any requirement to apply for a variance therefrom, that otherwise would be violated as a result of raising an existing structure to a new and appropriate elevation.” The court therefore found that since a development regulation necessarily includes a site plan ordinance, the exemption inevitably included an amendment to a site plan.

Gross v. Iannuzzi, 2019 WL 2361994 (NJ App. 6/5/2019)


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