On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2995-06-PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
In this action in lieu of prerogative writs, plaintiff William Hnatt appeals from an order of the Law Division upholding the Brick Township Board of Adjustment's (Board) grant of variances to defendants Patricia Gant and Karen Pyhel (defendants) to construct a single-family residence on an undersized lot (lot 15). Defendants cross-appeal from that portion of the order conditioning grant of the variances on removal of a third-floor "bonus" room from defendants' proposed development plans. We affirm.
Plaintiff owns neighboring lot 14 on Nejecho Drive in Brick Township. Waterfront lots 14, 15 and 16 are located in the Township's R-7.5 zone and are contiguous, all created under the Old Map Filing Act or by conveyance with reference to an old metes and bounds description. Historically, lot 15 shared common ownership with lot 14 twice, once "for a two-year period from 1946 to 1948, and [then for] a one-year period from 1970 to 1971." For a period of five years, from 1978 to 1983, lot 15 was owned by the owners of lot 16, William Gross and his wife, Dolores. In 1983, the Grosses conveyed lot 15 to their son, William Gross, Jr. Thereafter, in a series of conveyances, the son transferred to his three siblings, defendants Patricia Gant and Karen Pyhel, and John Gross, each a twenty-five percent interest in lot 15.*fn1
This history is relevant because under the doctrine of merger, contiguous, undersized or substandard lots that come into common legal title theoretically merge and therefore cannot be individually sold or developed without subdivision approval. Jock v. Zoning Bd. of Adj. Of Wall, 184 N.J. 562, 578, 581 (2005). A variance is precluded because the individual lot owner cannot demonstrate undue hardship that was not self-created. Ibid.
Despite this well-recognized land use principle, the Township never took action to set aside any of the transfers of lots 14, 15 or 16 as improper subdivisions. On the contrary, in response to an inquiry about potential development of lot 15, Brick Township Zoning Officer Sean Kinnevy advised a local realtor, in a letter dated November 21, 1995, that lot 15 could be developed without a variance: "After further clarification, it has been determined that the referenced property, located in the R-7.5 zone, is a buildable lot under Section 190-158.B of the Township Code. No zoning variance is required." The letter was copied to the Township's Business Administrator and Municipal Planner. Eight years later, on March 21, 2003, Kinnevy wrote another realtor about the potential development of lot 15, repudiating his earlier advice and informing that a variance would be required:
The referenced property is located in the R-7.5, Single-family residential zone, in which the minimum lot width required is 75 feet and the minimum lot area required is 7,500 square feet, as per Section 290-11 of the Township Code.
The letter dated November 21, 1995 is no longer valid. Section 190-158.B of the Township Code was repealed on May 14, 1996 by Ordinance No.354-2C-96.
In order to build on the lot, a variance must first be approved by the Zoning Board of Adjustment.
In 2005, after receiving CAFRA permits to develop lot 15, defendants applied to the Board for variances under N.J.S.A. 40:55D-70c(1) and (2) to construct a single-family residence on the undersized lot. Specifically, defendants applied for variances in minimum lot area (7500 sq. ft. required, 6292 sq. ft. provided); lot width (75 ft. required, 51 ft. provided); front setback (25 ft. required, 17 ft. provided); combined yard setback (15 ft. required, 12.1 ft. provided); and maximum building coverage (30 percent required, 35 percent provided). Before applying for the variances, however, defendants had submitted certified letters to the adjoining property owners soliciting offers to purchase lot 15 at its fair market value as if variances had been granted, but the owners of lots 14 and 16 were not interested.
The Board held public hearings on defendants' application. Plaintiff, represented by counsel, appeared and objected, citing the preclusive doctrine of merger and challenging the Board's jurisdiction. Prior to the hearings, defendants submitted revised dimensions of their single-family dwelling, which reduced the total building coverage to 31.15 percent, conformed the combined yard setback, and increased the front setback to 18 ft. in accordance with off-street parking standards.
At the start of the hearing, the Board ruled that defendants were "not barred or prohibited from going forward based on the doctrine of merger" because "[t]his unique circumstance, where [lot] 15 was owned by both the owners to either side[,] might act to stop the owner at either 14 or 16, as the case may be, from advancing the doctrine of self-created hardship against the other neighbor." It was noted, in this regard, that lot 15 was created under the Old Map Filing Act, and that the Township zoning officer had represented that lot 15 was a valid building lot.
At the hearing, Charles Lindstrom, a project engineer and planner, testified to the dimensions of the property and defendants' revised proposal. According to Lindstrom, the revised total lot coverage, at 31.15 percent, was calculated by using the 125-foot lot depth stated in the Brick Township tax map for lot 15. Based on a new calculation using the mean high waterline of 1.44 provided by New Jersey's Bureau of Coastal Engineering, and used in the application of the Coastal Permit Program, the actual lot depth was greater than 125 feet, making the total lot coverage less than the required 30 percent. It was also Lindstrom's opinion that defendants' proposed dwelling, while technically requiring a variance, conformed to existing ...