On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1023-07.
The opinion of the court was delivered by: Waugh, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Newman.
This appeal raises the issue of whether a division of real property by testamentary devise is a "self-created hardship" for the purposes of an application for an undue hardship variance pursuant to N.J.S.A. 40:55D-70(c). The overall appeal is moot because of the withdrawal of the entity that had intended to purchase the property and build the specific home for which the variances at issue were sought. Nevertheless, we conclude that the question of whether there was a "self-created hardship" is a justiciable issue because the trial court's determination on that issue would be binding as between the property owner and the defendant zoning board in the event of a future variance application. We affirm that portion of the decision on appeal that held that the hardship was self-created and dismiss the remainder of the appeal as moot.
Plaintiff Janice A. Egeland is the record owner of a 1.65 acre tract of vacant land in the Township of Colts Neck (Township), which is officially designated as Block 38, Lot 15.01 on the Township's tax map. The lot was part of a larger property, Block 38, Lot 15, originally purchased by Egeland's parents in 1971 and owned solely by her mother following her father's death. The lot at issue was created by a testamentary devise from Egeland's mother, whose will was written in 1994 and admitted to probate in March 2004. At the same time, the remainder of the original lot was left jointly to Egeland and her sister. They subsequently sold that lot to a third party for construction of a single family residence.
The original lot met the zoning requirements for construction of a single family residence in the Township's A-1 Agricultural Residential Zone District. However, at the time the governing will was written, it was not large enough to subdivide into two buildable lots in the A-1 zone. The division effectuated by the mother's will created one buildable lot and the lot at issue here, which would require variances for construction of a residence.
In 2006, Egeland entered into a contract to sell the property to Forefront Homes at Colts Neck (Forefront). The contract of sale was conditioned upon Forefront's ability to obtain the necessary approvals for the construction of a single family dwelling on the lot. In August 2006, Forefront filed an application with defendant Zoning Board of Adjustment of the Township of Colts Neck (Board), seeking to construct a single family dwelling with: (1) a lot area of 68,161 square feet, although 88,000 square feet are required; (2) a lot frontage of zero feet, although 300 feet are required; (3) a lot width of 159 feet, although 300 feet are required; and (4) no frontage on an improved street.
After holding hearings in late 2006, the Board denied the application by resolution dated January 17, 2007, largely on the basis of its conclusion that there was a self-created hardship. Forefront chose not to pursue the matter further and terminated its interest in the lot.
On February 26, 2007, Egeland filed an action in lieu of prerogative writs to challenge the Board's determination. The matter was tried on November 14, 2007. Judge Lawrence M. Lawson issued a written opinion on February 25, 2008, affirming the Board's determination, including its decision to view the testamentary division as a self-created hardship. He entered an order dismissing the complaint on March 11, 2008. This appeal followed.
We start with the standard of review. Our role in reviewing zoning decisions is ordinarily limited because "a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable." Wilson v. Brick Twp. Zoning Bd. of Adjustment, ___ N.J. Super. ___, ___ (App. Div. 2009) (slip op. at 8) (citing Wyzykowski v. Rizas, 132 N.J. 509, 518-520 (1993)). ...