The Wilentz Law Firm extends its sympathy to those who were impacted by Hurricane Sandy.  As our government and communities move into the rebuilding phase, we offer the following summary that provides information with regard to rebuilding homes and businesses along our State’s coastal area.

In response to Hurricane Sandy, and the rebuilding of structures within the coastal area of State, the New Jersey Department of Environmental Protection (“NJDEP”) has issued guidance to assist communities, businesses and municipalities.  NJDEP’s guidance indicates that various types of activities can be implemented in coastal areas without obtaining a permit from NJDEP.  The areas that are regulated by the NJDEP and that would normally require a permit include:

  1. Coastal Area Facility Review Act (CAFRA) areas, which covers beaches, dunes, and areas within 150 feet of the beach or dune or tidal waters from Cheesequake Creek, Middlesex County to Killeohook National Wildlife Refuge, Salem County.
  2. Waterfront Areas – For waterfront areas located outside of the CAFRA area and within 500 feet of a tidal water/no permit is required.
  3. Coastal Wetland Areas
  4. Tidal Waters
  5. Marinas

The NJDEP guidance will be helpful in the rebuilding process, however, we must be cognizant that certain construction activities may require permits from NJDEP.  Further, additional permits and approvals may be required from federal and local agencies.  Another regulatory issue that may need to be addressed pertains to land that was reconfigured so that uplands were lost as a result of the storm.  Many residents and businesses have purchased Tideland instruments from the State for land adjacent to their upland property.  After the storm many properties have lost land and are now under water.  This coastline reconfiguration raises property ownership issues between the owners and the State concerning property rights in this now tidally flowed land.

Municipal and County Regulations:

Repair or reconstruction of damaged property will require permits and in some cases will require land use approvals. Property owners should first meet with their municipal construction official who we expect will be sympathetic and suggest the most efficient path to follow.

Properties abutting county roads or impacting county drainage facilities may require some authorization from the County Planning Board or its staff in order to rebuild, especially if a property has been reconfigured by the storm. We can give more specific information to anyone contacting us for assistance.

Some repairs may require variances from a municipal Zoning Board of Adjustment; multi-family building repairs may require site plan approval from a Planning Board.  Pre-existing nonconforming uses and structures (structures and uses that were legal when built but are no longer permitted by the local zoning ordinance) may be reconstructed in the event of “partial” destruction.  Whether or not a structure is partially destroyed or the destruction is more extensive will be determined by local officials.  Again we hope that local zoning and construction officials will be understanding and cooperative, but property owners have to initiate the discussion.

Structures and uses permitted by variances should be able to be rebuilt in the event of partial or total destruction, but again this must be discussed locally.  A building permit will always be required.

Generally, properties constructed without variances can to be repaired or rebuilt upon issuance of a construction permit if still consistent with current zoning. If not, the rules governing non-conforming uses discussed above will apply.

The nature of the permits and approvals needed for repair or reconstruction will affect the costs and schedule for reconstruction.  These factors should be part of the planning for financing, temporary housing arrangements, and insurance claims.

The Wilentz Law Firm’s Environmental and Land Use Departments have navigated the NJDEP’s complicated regulatory programs and municipalities’ land use rules throughout the state.  We have the ability to address the unique and time sensitive issues which must now be faced not only in our state’s coastal areas but elsewhere as well.

If you need any assistance in addressing your rebuilding efforts, please contact Stephen Barcan at 732.855.6055 or Jeffrey Cappola at 732.726.7464.