Governor Chris Christie has signed the so-called “Automatic Variance” law to make it easier to raise buildings to the new FEMA base elevations.  The law applies to the rebuilding of a structure destroyed or damaged by Superstorm Sandy, as well as to existing structures that survived Sandy.  Effective immediately a structure of the same vertical and horizontal dimensions as existed immediately prior to the storm (October 28, 2012) may be raised to the new FEMA base flood elevations plus an additional three feet, or to any higher elevation that may be required by the DEP’s Flood Hazard Control Act rules, notwithstanding any contrary law limiting such elevation.  No waiver or variance may be required.  The law also authorizes construction of a staircase needed to reach the new elevation.  This new law only addresses the elevation (height) issue.  A building is exempt (and will not need a variance from) any requirement that would be violated by virtue of elevating the building to the designated levels. 

To determine if the law applies in a particular situation, ask this question:  if I were not raising the building elevation would I be violating or require a variance from any development regulation?  If the answer is “no”, then you are covered by the new law.  If the answer is “yes”, then you must still get a waiver or variance from that development regulation.

A house or other building that was not damaged but that the owner wants to elevate, or a house that was damaged and is being repaired, may be elevated even if elevating the house would otherwise violate some development regulation.  For example, if the structure currently does not meet bulk or use standards, you can still elevate the building, and add a stairway that may increase the nonconformance.  Similarly, you can rebuild at a higher elevation a conforming building that was damaged or destroyed.  The law is somewhat ambiguous as applied to reconstruction of a nonconforming building that was destroyed or that is being torn down and rebuilt.

Finally, the law does not apply in any situation where the “exact” pre-Sandy “vertical and horizontal dimensions” of the structure have been or will be altered and where this alteration creates or exacerbates the extent of noncompliance resulting from the new building elevation.  While this is also somewhat ambiguous, it is likely that a bigger footprint would increases the extent of a nonconformance associated with the raised elevation; the same or smaller footprint but with a larger structure above it might expand the nonconformance as well.