On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by O'Hern, J. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi and Stein join in Justice O'Hern's opinion.
The question in this appeal is whether an existing nonconforming parcel of land occupied by several dwelling structures is divisible as a matter of right into multiple nonconforming lots accommodating each of the structures. We hold that such a division is a subdivision of land within the meaning of the Municipal Land Use Law of 1975 (MLUL), N.J.S.A. 40:55D-1 to -112, and that such a subdivision may be granted only on approval of the necessary variances by the municipal planning board.
The case has a troubling history because it involves an unsettling issue of lack of respect for the law. In a prior unreported opinion that reviewed a separate denial of subdivision application, the Appellate Division of the Superior Court had affirmed a Law Division judgment that directed the Planning Board of the Borough of Manasquan to follow the holding of Beers v. Board of Adjustment, 75 N.J. Super. 305 (App. Div. 1962). Beers held that an owner of a nonconforming lot that contained multiple structures had a right to subdivide the lot along the lines of the structures. In effect, Beers
required planning boards to grant subdivision approvals in circumstances such as those here.
Understandably, then, plaintiffs did not argue before the planning Board for variances under N.J.S.A. 40:55D-70c(2), the so-called "flexible variance." Plaintiffs' case was addressed instead to the meaning and effect of the Beers decision as the Appellate Division had previously ruled the planning Board was bound by that case. Accordingly, the questions that plaintiffs' counsel put to his expert witness dealt more with the witness's understanding of the application of Beers in other communities than with the reasons in favor of variances in the circumstances of this case. The decision by the planning Board thus turned on the applicability of Beers rather than a determination under the standards imposed by the MLUL. The planning Board, however, believed that the Appellate Division had erred as a matter of law in its previous decision directing that Beers be applied and denied plaintiffs' application notwithstanding the earlier mandate.
Plaintiffs' lot is a rectangular corner lot in Manasquan. With frontages of twenty-five feet on Brielle Road and 100 feet on Third Avenue, its 2500 square feet are below the ordinance requirement of 3400 square feet. There are two dwelling houses on the lot (a one-family and a two-family). Neither meets the present setback requirements. Plaintiffs propose to create separate lots for each of the structures, one to be approximately twenty-five by sixty feet, or about 1500 square feet, and the other approximately twenty-five by forty feet, or about 1000 square feet. At the time of plaintiffs' application, there were over 170 lots in Manasquan with multiple structures on them. In addition, one undivided twenty-acre tract of land contained approximately 350 dwellings, mostly small bungalows. The Planning Board members, although expressing various reasons for departing from the Beers ruling, seemed most concerned that Manasquan's history as a summer-bungalow colony left it especially vulnerable to any detrimental effect of Beers.
The Law Division judge, whose ruling in the previous case involving the Manasquan Planning Board had been affirmed, was understandably indignant about the Planning Board's actions in this case, and directed it to approve plaintiffs' subdivision request and those of several other similarly situated property owners. On appeal, a different panel of the Appellate Division reversed the Law Division judgment, disapproving of the reasoning of the Beers case and holding that, regardless of Beers' validity under prior law, the MLUL imposed superseding requirements. Urban v. Planning Bd., 238 N.J. Super. 105 (1990). Accordingly, it reinstated the Planning Board's denial of the subdivisions. Only the Tomassos sought certification of that decision, which we granted. 121 N.J. 664 (1990).
We affirm the Appellate Division decision that Beers should not serve to grant an unrestricted right to subdivide existing nonconforming lots occupied by multiple structures. We believe the proper approach is to balance the rights of owners of existing nonconforming properties with the public interest to achieve better zoning for the community. Because the hearings below focused on plaintiffs' right to subdivide under the authority of Beers, that balance, mandated by the MLUL, has not been adequately addressed. We therefore remand the matter to the Planning Board for further proceedings in accordance with this opinion.
Several principles of land-use law intersect here but none points unerringly to an answer. Of course, that the expansion of a nonconforming use or structure is not favored is a settled principle of law. Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205 (1988). At the same time, the nonconforming rights run with the land irrespective of changes in ...