On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-1962-01.
Before Judges Skillman, Coburn and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The judgment under review dismissed a complaint in lieu of prerogative writs, thereby rejecting plaintiffs' claim that the board of adjustment erroneously failed to find that two contiguous lots had merged. Plaintiffs contend that merger occurred because equitable or constructive ownership of the two lots were held by the same persons even though legal title was deliberately kept separate. According to plaintiffs, this merger should have required the board of adjustment to conclude that the hardship asserted by defendant Shire Realty, Inc., a later title holder of one of the contiguous lots, was self created. We agree and reverse.
The Supreme Court, in Loechner v. Campoli, 49 N.J. 504, 509 (1967), determined that ownership of contiguous lots as delineated on a map filed under the Old Map Act, L. 1898, c. 232, did not irrevocably vest landowners"with a right in those lots which prevents the exercise of the police power to limit the use of such lots through dimension or area guides." The Court rejected the argument that"individual lots never lose their separate identities regardless of how many contiguous lots remain in or are reassembled into one ownership," and held that undersized, contiguous lots, owned by the same person, would be deemed"merged."*fn1 Id. at 509-10. In this case, we are required to determine whether two lots merged or, stated differently, whether the hardship claimed by defendant Shire Realty, Inc. in seeking variances to develop a vacant, non-conforming lot was self-created either by the actions of its principal, defendant Paul Amato, or by the actions of preceding owners.*fn2
The issue presented requires our examination of the extent of possession or control over the adjacent lots necessary to constitute joint ownership for merger purposes. Defendants contend that the simultaneous ownership of legal title of the contiguous lots is the critical quality, while plaintiffs claim equitable or constructive ownership of adjacent non-conforming lots is sufficient to create a merger. We reject defendants' exaltation of legal title and conclude that the circumstances surrounding ownership of these lots at two different points in time caused the lots to merge or, stated another way, the efforts to avoid merger rendered the isolation of the non conforming lot a self-created hardship.
The matter at hand concerns two adjacent lots -- Lots 26 and 27 -- in Wall Township.*fn3 While the parties dispute the meaning or significance of much of the evidence, an examination of the record reveals no genuine factual dispute. Lots 26 and 27 were originally part of an eighty-five acre tract; their designation as separate lots occurred during the reign of the Old Map Act. In 1939, the sole owner of both lots separately conveyed them to others.
While the lots may have once conformed to existing zoning requirements, they became non-conforming when a 1955 zoning ordinance placed the lots in a zone requiring minimum lot area of one acre and minimum lot width of 200 feet. Lot 26 was already developed, but Lot 27, then owned by Donald and Nancy Sherman, remained vacant. In 1977, the 1955 ordinance was amended, this time placing the property in a zone requiring a minimum lot area of 30,000 square feet.
J. Clarence Allen and Ethel M. Allen purchased Lot 26 in 1957. In 1960, they purchased from the Shermans Lot 27, which adjoined Lot 26 on the east, as well as a twenty-foot strip of Lot 25, which adjoined Lot 26 on the west. The sale of the twenty-foot strip of Lot 25 was preceded by the planning board's approval of its subdivision from Lot 25 and its designation as Lot 26B. The Allens' acquisition of Lot 26B did not, when joined with Lot 26, create a conforming lot. If merged, Lots 26 and 27 would have constituted a conforming lot.
While the Allens supplied the $8,000 purchase price, and Clarence Allen alone negotiated the transaction, the Shermans were directed by the Allens to convey title to their son, Robert. Clarence Allen testified at his deposition that the deeding of Lot 27 to Robert constituted a"gift." Notwithstanding where title was placed, the unrefuted evidence before the board of adjustment demonstrated the complete dominion over Lot 27 thereafter exercised by Clarence and Ethel Allen. This is best demonstrated by the fact that, in 1974, Clarence asked Robert, who readily complied, to give his brother Raymond one-half interest in Lot 27, thus contradicting the claim that fourteen years earlier the property had been irrevocably gifted to Robert.
In fact, the evidence revealed that during the thirty-two years that followed its purchase, Clarence and Ethel exercised complete physical dominion and control over Lot 27 despite the fact that legal title was held by Robert and, later, jointly by Robert and Raymond. For example, Clarence applied for a permit in his own name to build a"tool house" on Lot 27; Clarence testified that this structure was built for his own purposes, and he painted it in the same color scheme as the Allens' home on Lot 26, from which the tool house also received its electrical power. Clarence also installed a flagstone path connecting the tool house with the Allen home on lot 26, and dug a well on Lot 27, for use in watering the lawn on both lots, all at his own expense, and without seeking or obtaining his son's permission.
The Allens' complete dominion over Lot 27, and their deliberate disregard of its boundary line with Lot 26, was further demonstrated by the fact that, in 1964, Clarence authorized installation of a waterline which ran across Lot 27 to the house on Lot 26, where it still remains. Clarence also built a common fence around both Lots 26 and 27 to give his dog"the whole lot to run in, the two lots." Clarence installed, at his own expense, bulkheading and a dock along the riverside of both lots, and kept his cabin cruiser moored to the dock, thus straddling the common riparian boundary of both Lots 26 and 27. The Allens also planted a forty square foot vegetable garden on Lot 27. The tax bills for both Lots 26 and 27 were sent to, and paid by, Clarence and Ethel Allen.
In 1989, desirous of selling both lots, Clarence and Ethel entered into listing agreements with a realtor, indicating they were owners not only of Lot 26 but also of Lot 27. And, while they may have discussed the sale of the property with their sons, Clarence testified he did not need ...