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Attorney says court dismissed SRED Properties prerogative writ; applicant may ask board to consider extent of destruction
Summary
Board counsel reported that a trial court dismissed a prerogative writ action filed by SRED Properties over reconstruction rights after a June 2023 fire; the court left open the possibility the applicant could ask the board to determine whether the building was partially or totally destroyed.
Board attorney Thomas Barlow briefed members on litigation involving SRED Properties (2 Herman St.), where a warehouse destroyed by fire in June 2023 had been a pre-existing nonconforming use. Barlow said the borough's zoning determination was challenged in a prerogative writ action alleging improper denial of a permit to rebuild; Judge Bucca dismissed the lawsuit, finding the borough's action consistent with state precedent about nonconforming uses, but permitted the applicant to return to the board to argue whether the structure was partially rather than totally destroyed.
Barlow said the borough prevailed in court and that the applicant had sent a follow-up e-mail requesting the application be heard; Barlow reported he is awaiting the applicant's attorney's response. The board discussion clarified that state case law limits re-establishing nonconforming uses after total destruction, though partial-destruction claims may be evaluated on a factual basis by the board.
Why it matters: the decision affects how the borough interprets reconstruction rights for pre-existing nonconforming uses and could affect future permit decisions for sites damaged by catastrophic events.
