On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3048-02.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Weissbard and Hoens.
Plaintiff Christopher Simeone is the contract purchaser of an undersized lot. He appeals from an order upholding the denial of his application for bulk and dimensional variances. We affirm.
Christopher Simeone entered into a contract to purchase a vacant lot from plaintiff Eleanor Braun. The lot is 50 feet wide and 150 feet deep. The lot was created in 1965. Prior to that date it had been part of a larger parcel situated on the corner of Ridgedale Avenue and Ward Place in the Township of East Hanover. The lot contained 150 feet of frontage on Ridgedale Avenue and 200 feet of frontage on Ward Place. Until 1956, the property had been owned by Gertrude Schoonover. On October 18, 1956, she sold the property to James Braun, the current owner's deceased husband, and his business partner, Francis Shinn and title was held in the name of the partnership. At this time, the partnership also owned an adjacent parcel of land on Ward Place. This lot, known as Lot 49, contained frontage of 100 feet on Ward Place and depth of 200 feet; a single-family house and detached garage had been constructed on the Ward Place lot. The Brauns lived in this house for thirty-five to forty years until it was sold sometime in the 1990s.
On April 20, 1965, the partnership conveyed a portion of the corner lot to Vitale Ciavetta and Mary Ciavetta. The deed describes a lot with 150 feet of frontage on Ridgedale Avenue and 150 feet along Ward Place. The remainder of the property was conveyed on July 1, 1965, by the partnership to James and Eleanor Braun. This 50 x 150 foot lot with frontage on Ward Place has remained vacant since that time. The lot has been taxed as a separate lot since at least 1970 and shown on township maps as a separate lot since 1986. The Brauns occupied the house on Lot 49 until sometime in the 1990s.
The 50 x 150 foot lot, now owned solely by Eleanor Braun, is situated in the single-family residential R-20 zone. The zoning ordinance requires 20,000 square foot lots with minimum frontage of 100 feet and depth of 200 feet. The zone also requires a combined side yard of 35 feet. The record reveals that most homes in the neighborhood conform to the zoning requirements. Any discrepancies that exist are minor.
Simeone, the contract-purchaser, proposes to build a two-story, single family home on this undersized lot. The proposed house is thirty-two feet wide; the side yards are nine feet. The design requires two variances from the bulk and side yard requirements.
Following a hearing at which the contract purchaser and a professional planner testified, defendant Zoning Board of Adjustment (Board) adopted a resolution denying the requested relief. First, the Board found that the hardship was self-created. Second, it found that the proposed dwelling was excessively large for the lot, and the benefits of deviating from the zoning requirements did not substantially outweigh any detriment to the established zoning in the neighborhood.
Plaintiffs filed a timely complaint in lieu of prerogative writs to review the denial of its application for variances. Following oral argument, Judge Bozonelis held that the undersized lot did not merge with the larger parcel because the subdivision pre-dated the decision in Loechner v. Campoli, 49 N.J. 504 (1967), and the adoption of the Municipal Land Use Law N.J.S.A. 40:55D-1 to -136. He also ruled that the history of the creation of the lot did support a finding of undue hardship. He found, however, that the Board's concerns about the size of the proposed house on a lot significantly smaller than homes allowed by the zoning and found in the neighborhood were well grounded. He held that the Board's determination that plaintiffs had not established the negative criteria was not arbitrary, capricious or unreasonable.
On appeal, plaintiffs argue that the lot is a non-conforming isolated lot; therefore, they were entitled to the bulk and dimensional variances requested pursuant to N.J.S.A. 40:55D-70(c)2. They contend that they established undue hardship and that the evidence submitted met the negative criteria. The Board responds that plaintiffs' hardship is self-created, that the Board is not estopped from considering whether the undersized lot merged with the larger parcel, and that the applicants failed to meet the negative criteria.
The threshold issue in this appeal is the status of the undersized lot owned by Eleanor Braun. The parties have characterized the issue as merger. Our review of the record, however, convinces us that there are two issues concerning this lot: one, illegal subdivision; and two, merger of the newly subdivided lot with Lot 49. Merger is characterized by common ownership of more than one contiguous lot. See Loechner, supra, 49 N.J. at 507; Somol v. Bd. of Adj. of Morris Plains, 277 N.J. Super. 220, 228 (Law Div. 1994). A subdivision, on the other hand, is characterized by "[a]ny reduction in the size of a parcel or tract of land by a division into two or more smaller parcels." Loechner, supra, 49 N.J. at 511. Here, the lot that is the subject of this appeal was created by dividing the original 200 x 150 foot lot acquired by the Braun and Shinn partnership into two lots. One lot was reconfigured as ...