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Newmark v. Board of Adjustment of the Township of Mendham

July 19, 2007

KATHERINE NEWMARK, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MENDHAM, DEFENDANT-RESPONDENT/ CROSS-APPELLANT,
AND ROGER HANLEY, ERIN HANLEY, THOMAS HANLEY AND GAYLE HANLEY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2984-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2007

Before Judges Parker, C.S. Fisher and Yannotti.

In this action in lieu of prerogative writs, plaintiff Katherine Newmark appeals from paragraph one of an order entered on April 17, 2006 granting defendants' cross-motion on Count One of the complaint, declaring that the lots at issue have not merged. Defendant Mendham Township Board of Adjustment (Zoning Board) cross-appeals from paragraph two of the same order granting plaintiff's motion to set aside its resolution based upon the fact that the applicant's architect was a member of the Zoning Board, thereby creating an appearance of impropriety.

The facts relevant to this appeal are as follows. Plaintiff owns property in Mendham Township designated as Lot 12, Block 126 on the tax map. Her property adjoins Lot 11, Block 126, owned by Roger, Erin and Thomas Hanley (the Hanleys). Lot 11 adjoins Lot 16, Block 126, also owned by the Hanleys. Plaintiff's and the Hanleys' lots are all located in an R-3 residential zone, requiring a minimum of three acres and all are undersized.

In January 2005, the Hanleys submitted an application for bulk variances to build a 3,554 square foot house on Lot 11, Block 126, which consists of .791 acres. Hanleys' Lot 16 is a corner lot consisting of 1.5 acres on which a 2,674 square foot home currently exists. Plaintiff's property consists of 1.5 acres on which a 2,542 square foot home currently exists. Lot 16 is a corner lot, which fronts on Washington Valley Road and a private right-of-way known as Martins Lane. Lot 11 also fronts on Martins Lane, as does plaintiff's Lot 12. In other words, the three lots sit side-by-side on Martins Lane, with Lot 16 occupying the corner of Martins Lane and Washington Valley Road.

After hearings on the Hanleys' application, the Zoning Board granted the requested variances and approved a 2,986 square foot house, plus a 550 square foot garage.

Plaintiff objected to the Hanleys' application on the ground that the Hanleys' two lots merged by virtue of the chain of title pursuant to Loechner v. Campoli, 49 N.J. 504 (1967).

Plaintiff alleged that title to Lot 16, Block 126 was conveyed from Peter G. and Edwina S. Vosburgh to Richard and Carol Hall by deed dated February 18, 1983. The Halls conveyed title to Lot 16 to Gayle Hanley by deed dated June 7, 2000.

Lot 11, Block 126 was conveyed from Margaret F. Lamb to Carol D. Hall by deed dated December 22, 1992. Hall then conveyed Lot 11 to Gayle Hanley on June 7, 2000. Gayle Hanley conveyed Lot 11 to the Hanleys on July 24, 2000. Nevertheless, plaintiff maintains that when Gayle Hanley acquired title to both Lots 11 and 16 -- for however brief a period of time -- the ownership merged based upon the Loechner doctrine. Plaintiff contends that because the lots had merged, the variances could not be granted by the Zoning Board until the property was subdivided and that subdivisions can only be addressed by planning boards.

When the Hanleys submitted the application to the Zoning Board, it included plans for the proposed house on Lot 11. The architect who prepared the plans was a current member of the Zoning Board. In her complaint in lieu of prerogative writs, plaintiff sought to have the Zoning Board's proceedings and resolution declared null and void on the grounds that (1) the Zoning Board's decision was arbitrary, capricious, and unreasonable; and (2) the submission of plans prepared by the architect/member of the Zoning Board resulted in a conflict of interest.

After hearing the matter, the trial court determined that "there was unity of title, albeit . . . for a very short period of time." The court noted, however, that Gayle Hanley's Lot 16, on which a house is already built, is a corner lot fronting on both Martins Lane and Washington Valley Road. Relying on Chirichello v. Zoning Bd. of Adj., 78 N.J. 544 (1979), the court found that the lots had not merged because they fronted on different streets.

In this appeal, plaintiff argues that (1) the Zoning Board's decision was arbitrary, capricious and unreasonable because a subdivision was required before the Board could consider the variance application; and (2) Lots 11 and 16, owned by the ...


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