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Ketcherick v. Borough of Mountain Lakes Board of Adjustment

Decided: June 1, 1992.


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

Michels, O'Brien and Havey. The opinion of the Court was delivered by Havey, J.A.D.



In this zoning case defendant Board of Adjustment of the Borough of Mountain Lakes (Board) appeals from a judgment ordering it to grant a hardship variance to plaintiff. In 1963 plaintiff's predecessor in title subdivided and sold a tract of land leaving the subject lot isolated and substandard. The Board denied plaintiff's application for a variance on the basis that any hardship was self-imposed. The trial court reversed, concluding that plaintiff was not "significantly related to the original wrongdoer" and, because of the passage of 28 years, "it's time to put this land back in the bank of normal lands in our society[.]" We reverse. Where a predecessor in title created the nonconforming use knowing of the zoning restrictions, plaintiff, as successor in title, is not entitled to a variance based on hardship, despite the passage of time and the fact that he is not "significantly related to the original wrongdoer."

The essential facts are not in dispute. Plaintiff owns a vacant lot, designated as Lot 58A in Block 56 on the tax map of the Borough of Mountain Lakes. The lot has frontage on North Briarcliff Road of 101.07 feet and a total area of 17,717 square feet. The borough's zoning ordinance requires minimum lot area of 22,500 square feet and frontage of 150 feet.

In 1954, a party named Jones owned the lot, as well as a contiguous lot known as "the Hungerford Property." At the time, the zoning ordinance required 22,000 square feet in lot area and 150 feet frontage.*fn1 Together, Lot 58A and the contiguous

"Hungerford Property" exceeded the minimum bulk requirements of the then existing zoning ordinance.

In 1963, Jones sold the "Hungerford Property." Plaintiff acknowledges that the subject lot and the "Hungerford Property" had merged, and therefore this conveyance constituted an illegal subdivision of the property.*fn2 Jones made the conveyance despite the fact her attorney had advised her that the remaining lot would not be buildable without lot area and frontage variances.

In 1976, John and Kate Lee acquired the property for $1 plus back taxes in the amount of $463.66. In 1979 plaintiff, as president of J & J Woodworking Company, Inc. (J & J) which presumably had some interest in the property, applied to the Board pursuant to N.J.S.A. 40:55D-70c(1), seeking hardship variances from the lot area, frontage and side-yard requirements of the ordinance. The application was denied by amended resolution dated August 14, 1980 because J & J failed to demonstrate hardship, and further because "any difficulties or hardships were self-imposed."

In January 1981, plaintiff acquired title to the land for $1. He filed a second application in 1987 for hardship variances or alternatively for relief under the newly-enacted c(2) subsection of N.J.S.A. 40:55D-70. The Board denied the application, concluding that the doctrine of res judicata barred consideration of the matter. However, after plaintiff filed an action seeking a reversal of the Board's determination, the Law Division remanded the matter for a full hearing as to the merits of plaintiff's application.*fn3

On remand, plaintiff proposed the construction of a 2,652 square-foot residential dwelling on the subject lot. He sought relief from the lot area and frontage provisions of the ordinance, as well as from the steep slope ordinance which reduced the available net lot area to 8,330 square feet based upon steep slope calculations. Alternatively, plaintiff sought relief under N.J.S.A. 40:55D-70c(2). Plaintiff's "hardship" was predicated on the fact that the lot was isolated, and his offers to sell the lot to the adjoining property owners for $140,000 (based on its value with the variances) were rejected. He also established the fact that no property was available to purchase in order to make the lot conform with the provisions of the ordinance. Plaintiff also presented proof that the proposed house was compatible with other homes in the neighborhood, and that his proposal was consistent with the zoning scheme of the municipality.

In denying the application, the Board found that any hardship, if it did exist, "was self-imposed based upon the actions of the applicant's ...

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