Sandy-Damaged Property Permitted to Violate Height Restriction

In a matter of first impression due to statutory amendments addressing certain issues relating to the continued re-building after Superstorm Sandy, an owner of a townhome in Margate was permitted to raise their home to meet new flood standards despite a deed restriction limiting the height of the structure.  The townhome development consisted of one row of ten attached two-story oceanfront townhomes, and a second row of ten attached three-story townhomes located directly behind the first row. The expressed purpose of this configuration was to give both rows of townhomes an ocean view.  Although the townhomes shared party walls that extended down into the foundation, each was situated on its own subdivided lot, was owned in fee simple.  After the home in question was destroyed by Superstorm Sandy, the owner sought to elevate the unit thirteen feet in order to meet the new flood-protection standards, negatively affecting the ocean view of the second row of townhomes.  Despite a deed restriction limiting the height of the owners townhome, the Appellate Division found that it could be built at the new height.  Relying on the legislature's amending of N.J.S.A. 58:16A-103, the court held that he was entitled to, "elevate the structure as required by current flood-safety standards, despite Declaration provisions that would otherwise preclude him from doing so. As intended by the Legislature, the amended statute overrides the Declaration and any local development regulations that might otherwise prevent Iannuzzi from elevating the townhome."  Furthermore, the court clarified that the structure could be rebuilt to the same total height, even at its new elevation stating that, "Iannuzzi's right to protect his property from flood hazards outweighs his neighbors' right to preserve their ocean views." (Gross, et. al. v. Iannuzzi, et. al.)