On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication April 30, 1997. As Corrected June 3, 1997.
Before Judges Baime and P.g. Levy.
When the board of adjustment granted certain bulk variances to the contract purchasers of an undersized lot within 200 feet of plaintiff's residence, permitting construction of a house on that lot, plaintiff brought an action in lieu of prerogative writs in the Law Division. The Judge ruled for the defendants (the lot owner, the owner's contract purchaser and the board) and plaintiff appeals.
Virginia Cummins is the owner of Lot 8, the property for which the variances were sought. Applicants Nashat and Claire Kalleeny are the prospective purchasers of Lot 8, contingent upon the granting of bulk variances for lot area and lot depth. The property's history is as follows: In 1977, the owner of Lot 6, Kelly, purchased Lot 8 from Davidson, owner of Lot 2. Kelly constructed a tennis court on Lot 8, which slightly extended over the property line separating Lots 8 and 6. In 1979, Kelly decided to sell the tennis court lot (Lot 8) to Cummins, the owner of Lot 9. He was granted a minor subdivision by the planning board, to add a small piece of Lot 6 to Lot 8, so the tennis court would be totally contained on Lot 8. The planning board also granted certain bulk variances regarding side yard and set back requirements for Lot 6. After the 1979 subdivision, Kelly sold the new Lot 8 to Cummins.
Sometime during the next fifteen years, *fn1 the zoning ordinance was amended. In the R-2 Residential District, where the subject lots were located, the new minimum lot size was increased to 15,000 square feet, the new minimum depth was 150 feet and the new minimum front and rear yard setbacks were each forty feet. The amendments added a definition of "lot" as "any parcel, tract or area of land established by a subdivision plat or deed of record, ... except that for the purposes of this Ordinance, contiguous undersized lots under one ownership shall be considered to be one lot...." (emphasis added).
After the enactment of these amendments, Cummins' husband died and she decided to sell her property. Through her attorney, she requested a legal opinion from the Borough of Haddonfield as to whether she could sell the two lots separately. On December 8, 1992, the planning board's attorney responded to Cummins' attorney, advising that "the two adjacent lots now owned by Mrs. Cummins have not merged, even though Lot 8 is now undersized for this zone as a result of the most recent zoning ordinance amendment." In fact, both lots were undersized and therefore came within the coverage of the ordinance. Noting that Lot 8 had been created by a subdivision approved by the planning board in 1979, and treated and taxed as a separate independent lot since then, the board's attorney relied on Cox, New Jersey Zoning and Land Use Administration, ch. 12-2.3, 210 (1992). He cautioned only that any owner of Lot 8 wishing to construct a house would need approval by the board of adjustment for whatever bulk variances were required.
Relying on that opinion, and presumably on her own attorney's concurrence, Cummins sold the smaller Lot 9 to Roy C. Perry in September 1993. *fn2 Shortly thereafter, in mid-1994, Cummins contracted to sell Lot 8 to the Kalleenys, contingent on any required bulk variances. The Kalleenys, as contract purchasers, applied for the bulk variances on June 1, 1994. The application proposed construction of a new residence, replacing the tennis court, on a lot containing 13,849 square feet (only 103 feet deep) and with setbacks of twenty-eight feet in the front yard and twenty-seven feet in the rear. After a series of three hearings,
the board "concluded that denial of the requested variances would cause practical and unusual difficulties and hardship upon the applicants and owner of the property which justify the granting of the requested variances." Further, "the requested variances can be granted without being detrimental to the public good, nor will they violate the spirit and intent of the Zoning Ordinance and the Zone Plan."
At the trial in the Law Division, the Judge expressed the thought that the "doctrine of merger" applied, but the municipality was estopped from denying Cummins the right to sell the lot because she relied on the planning board attorney's letter opinion and sold the lots separately. He also found "the requested ... variances seem to be relatively minor and will go a long way in eliminating the perceived hardship to the owner ... to permit her contracted purchaser to build a home consistent with those homes which are in that particular area." Finally, the Judge concluded the grant of the variances was appropriate because the board "considered the neighborhood, its character, its value, the impact that the variance would have upon the existing neighborhood and they concluded no negative impact." Disregarding the lack of a transcript of the December meeting of the board of adjustment, the Judge stated there were adequate facts in the transcript of the first meeting to support the board's decision.
On appeal, plaintiff challenges the result in the Law Division, contending: (1) the doctrine of equitable estoppel was inapplicable because the planning board attorney lacked authority to issue an opinion interpreting the zoning ordinance; (2) proceeding without a transcript of the final board meeting violated N.J.S.A. 40:55D-10(f) and a remand to the board of adjustment was required; (3) the board's vote was improper because one of its members voting at the third meeting had been absent from the first two meetings; and (4) the grant of the bulk variances was arbitrary, capricious and unreasonable because the record reveals no proof of the need for setback variances.
We agree with plaintiff that the planning board attorney lacked statutory authority to offer his interpretation of the zoning ordinance to a private citizen and thereby bind any municipal agency. The opinion was requested by Cummins' attorney and she, in turn, relied on her attorney's advice. However, the municipality never sought to set aside the subsequent conveyance of Lot 9 to Perry, and it may not do so now as the two-year limit of N.J.S.A. 40:55D-55 has passed. That circumstance evidences the official municipal view that Lots 8 and 9 were separate lots and never merged. Otherwise, having conveyed Lot 9 to a bona fide purchaser, Cummins would be left with a lot either zoned into inutility or saleable only to an adjacent landowner, probably at forced sale rates.
A municipality or any of its agencies may be estopped if the circumstances involve reliance on a good faith act of an administrative official, within the ambit of that official duty, which constitutes an erroneous and debatable interpretation of an ordinance. See Tp. of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 332, 644 A.2d 120 (App. Div. 1994). When the circumstances lead a landowner to be misled by the "reasonable implications" of municipal action, such as the longtime recognition that Lots 8 and 9 were separate lots, and the legal significance of that (non-merger) is verified by an attorney who is part of the official municipal family, a municipality may be estopped from refusing variance relief based on the concept of self-created hardship arising from a merger of the two lots. "There is in [those] ...