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Dalton v. Ocean Township Zoning Board of Adjustment

Decided: January 22, 1991.

MICHAEL DALTON, MAHVASH DALTON, YAGHOUB RABBANI AND TALAT RABBANI, PLAINTIFFS-APPELLANTS,
v.
OCEAN TOWNSHIP ZONING BOARD OF ADJUSTMENT AND THE MUNICIPAL CORPORATION OF OCEAN TOWNSHIP, A NEW JERSEY MUNICIPALITY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Monmouth County.

Long, R.s. Cohen and Stern. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

Plaintiffs Rabbani*fn1 bought a lot in 1987 for the purpose of building a home. They knew it was 50 X 100 feet, or 5,000 square feet, located in an R-3 zone which required a minimum of 18,750 square feet, a minimum lot width of 125 feet, and a minimum depth of 125 feet. The zoning ordinance also contained lot coverage, minimum front and rear setback and sideyard limits which an ordinary house could not satisfy on plaintiffs' lot, identified as number 19.*fn2 Plaintiffs bought the lot for $32,000, or a little less than half of its value as a buildable lot.

Plaintiffs applied to the Board of Adjustment for hardship variances from a wide range of bulk and dimensional requirements of the zoning ordinance. They were turned down on the ground that the lot-size hardships were self-created. They then filed suit against the Township and the Board of Adjustment, taking now the position that their non-conforming lot was "grandfathered" by a zoning ordinance provision. If not, plaintiffs alternatively contended, the Board erroneously denied the variances they sought.

The Law Division ruled that the grandfather clause of the ordinance did not pertain to plaintiffs' lot 19, and that plaintiffs were not entitled to the variances. Plaintiffs then appealed to this court, and we now affirm.

Lot 19 was created in 1926 in a subdivision, largely of 50 X 100 foot lots, called Hollywood Manor, in the Elberon section of

Ocean Township. The lot met the minimum size requirements of the then effective zoning ordinance. The subdivision was filed in the Office of the Monmouth County Clerk's office under the old Map Act. R.S. 46:23-1 et seq. (repealed).

Lots 17 and 18, which adjoin lot 19 on the same street, were purchased by Peter Arnold and his wife in 1945. Lot 19 was bought by one Lasher in 1956. In 1974, Lasher contracted to sell lot 19 to a builder for $3,500, conditioned on obtaining a variance to build on the by-then-undersized lot. Arnold, who lived in a house on lots 17 and 18, offered $3,500 to buy lot 19 in order to prevent anyone from building there. After the variance application was denied, Arnold's offer was accepted and Arnold became the owner in 1974. He did no building and made no improvements. The municipality assessed lot 19 separately to Arnold, and assessed lots 17 and 18 to him as a unit.

In 1978, Arnold, now widowed, conveyed lots 17 and 18 to his daughter, retaining lot 19. She conveyed to the present owner, a few months later. Together, lots 17 and 18 were 100 by 100 feet, then and now undersized as to area, width and depth.

In 1987, Arnold sold lot 19 to plaintiffs for $32,000. The sale was without buildability conditions. Plaintiffs knew the lot was undersized and required variances to permit erection of the single-family house they planned. Before the variance hearing, they offered unsuccessfully to sell to both adjoining landowners. They never got to talk price with them, but had in mind at least $60,000. Their appraiser testified at the Board hearing that, with the variances needed to build, the lot was worth $65,000.*fn3

Plaintiffs' first argument is that the "grandfather" provision of the Ocean Township Zoning Ordinance requires that they be given permission to build on lot 19 without a variance:

Additionally, nothing contained in this chapter shall prevent a single-family residence from being erected on a lot within a recorded subdivision approved by the planning board of the Township of Ocean prior to the effective date of this chapter or affect the placement of the structure on said lot providing said lot meets the lot area requirements of the ordinance in effect at the time of said subdivision approval and further, providing that the structure itself does not encroach on any front, rear or side yard setback requirements of the ordinance in effect at the time of said subdivision approval, and further providing that the subdivision approval has not lapsed either by way of statute, ordinance, or action of the township.

The problem with plaintiffs' argument is that the ordinance protects against zoning upgrades only those lots "within a recorded subdivision approved by the planning board . . . prior to the effective date of this chapter." At the time this 1926 subdivision was filed, there was no ...


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