On appeal from Superior Court, Law Division, Monmouth County.
Long, Muir, Jr. and Keefe. The opinion of the court was delivered by Muir, Jr., J.A.D.
[233 NJSuper Page 589] We reverse the judgment of the trial court in this zoning case for a reason fundamental to land use regulation, the lack of jurisdiction of a zoning board of adjustment to consider a variance application under N.J.S.A. 40:55D-70c where a subdivision is also required. The individual parties to this appeal, as did the defendant zoning board of adjustment (defendant board) and the trial court, approached this case solely in the context of an undersized, isolated vacant lot in a residential zone, which, due to the minimum criteria of the local zoning ordinance, required N.J.S.A. 40:55D-70c-type variances to permit construction of a single-family dwelling. The issues originally presented on appeal, and as considered by both the board and the trial court, fell essentially within the spectrum of traditional isolated lot cases. See Harrington Glen, Inc. v. Leonia Bd. of Adj., 52 N.J. 22 (1968); Gougeon v. Stone Harbor, et al., 52 N.J. 212
(1968); Gougeon v. Bd. of Adj. of Stone Harbor, 54 N.J. 138 (1969); Commons v. Westwood Board of Adjustment, 81 N.J. 597 (1980); Nash v. Board of Adjustment of Morris Tp., 96 N.J. 97 (1984); Davis Enterprises v. Karpf, 105 N.J. 476 (1987). The issues as presented, however, overlooked the fact that neither plaintiff nor his predecessor in title secured a required subdivision.*fn1
The facts are essentially without dispute. Ocean Grove is a section of Neptune Township that is laid out in accordance with a map made by the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church, which map is referred to as a "Map of Lots of Camp Ground of the said Camp Meeting Association."*fn2 Two of the lots shown on the map are involved here. One lot is 687, which fronts on Embury Avenue. The other lot is 686, which fronts on Webb Avenue. Both lots share the same rear lot line. They are identical in area and dimension. Both are substandard in area and depth under the Neptune Township zoning ordinance. They are 452 square feet less than the ordinance-required minimum area. They are approximately 15 feet short of the ordinance-required minimum depth.
In May 1986, William and Dorothy Green (Green) owned both lots. At that time, a residential dwelling commonly known as 12 Embury Avenue covered almost all of lot 687 and a portion
of lot 686. The house extended a little more than seven feet onto lot 686. Green contracted to sell the house and lots to plaintiff for $150,000. The contract of sale called for a $35,000 purchase money mortgage on the vacant portion of lot 686. The contract obligated plaintiff to "be responsible for obtaining any certificates of occupancy or similar type municipal requirements." Without securing subdivision approval, Green apparently conveyed the property by two deeds.*fn3 One deed covered the southerly portion of lot 686. The metes and bounds description attached, and a subsequent survey, show that Green conveyed the vacant portion of lot 686 by that deed. The deed attempted to create a separate lot with sidelines of 34 and 36 feet or, respectively, about 10 feet and 9 feet short of the filed map lot (686) dimensions. Thus, it sought to create a lot more substandard under the local zoning ordinance than lot 686 would have been if it were entirely vacant.
In August 1986, before plaintiff took title to the Green property, the township zoning officer wrote a letter to Green indicating that Green, as the owner of lot 686, had the right, under a grandfather clause in the township zoning ordinance, to construct a single-family dwelling. It is not clear from the record what induced the letter. It is clear the zoning ordinance had no grandfather clause. However, the building official later authorized issuance of a building permit to plaintiff to construct a single family dwelling on lot 686. There is nothing in the record to suggest plaintiff advised township officials of the scope of the two deed conveyances Green subsequently made in late August. Thereafter, amid a series of convoluted events irrelevant to this opinion, plaintiff proceeded to construct a single family dwelling on the vacant portion of lot 686.
When the intervenors learned of the construction, they sought and secured a temporary injunction pending resolution
of plaintiff's variance application to defendant Board of Adjustment. Thereafter, plaintiff filed an application for a variance. Annexed to the application or as part of his proof before the defendant board, plaintiff presented a survey of lot 686 which showed the partially constructed dwelling (the one for which variance was sought) covering approximately 31 feet of the depth of the vacant portion of lot 686 and 24 feet of its width. The survey also showed that the house facing Embury Avenue encroached approximately seven feet onto lot 686. The survey further showed five feet of that encroachment as "removed or being removed." In an effort to return lot 686 to a separate distinct lot, plaintiff gave a six-foot written easement on lot 686 enuring to the benefit of himself as owner of the house and lot 687 for that portion of the house from lot 687 that continued to infringe on lot 686. The defendant board considered plaintiff's variance application, taking no notice of the easement or the infringement on lot 686 of the Embury Avenue house reflected in the survey.
The board denied plaintiff's application under both subsections c(1) and c(2) of N.J.S.A. 40:55D-70. The trial judge sustained the denial under c(1), but found the c(2) denial an abuse of ...