On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-323-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Simonelli.
Plaintiff Craig H. Taylor Holdings, L.L.C. filed an application for bulk variances for construction of a single-family home on its property designated as Lot 9, Block 503 on tax map of defendant Township of Pittsgrove (Lot 9). Defendant Pittsgrove Township Planning Board (Board) denied the application, resulting in plaintiff filing a complaint in lieu of prerogative writs, which included an inverse condemnation claim. Plaintiff appeals from the August 1, 2008 order denying its summary judgment motion and granting summary judgment to defendants on plaintiff's inverse condemnation claim.
On appeal, plaintiff contends that the judge erred by failing to expand the doctrine of equitable estoppel to preclude the Township from asserting a self-created hardship. We affirm.
The following facts are relevant to our review. Homayoon Sadeghian (Sadeghian) owned the former Lot 9, which is located in the R-1 zone. He filed a minor subdivision application for that lot to divide it into two lots: (1) Lot 9, comprised of .434 acres with a lot width of 90 feet and a lot depth of 210 feet; and (2) Lot 9.01, comprised of 7.3409 acres. On or about October 2, 2001, Sadeghian received the subdivision approval. Deeds were recorded for each lot on January 22, 2002. Both lots conformed to the Township's Zoning Ordinance, and remained undeveloped after the subdivision approval.
In July 2002, the Township amended the Pittsgrove Township Land Use Development Ordinance (Zoning Ordinance) for the R-1 zone. For single-family homes, the amendment required a minimum lot size of 2 acres, lot width of 200 feet, and lot depth of 250 feet. As a result of the amendment, Lot 9 became an undersized lot.
On March 26, 2004, Sadeghian conveyed Lot 9.01 to Delex, Inc. (Delex) without subdivision approval. A deed was recorded on or about April 16, 2004.
On September 15, 2005, Sadeghian entered into an agreement to sell Lot 9 to plaintiff, with the closing scheduled for March 15, 2006. Prior to the closing, on or about October 19, 2005, plaintiff filed an application for bulk variances pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, for lot size, lot width, and lot depth. Plaintiff submitted with the application a title report, which included the deed for Lot 9, recorded January 22, 2002, and a 200-foot certified property list issued by the Township's tax collector, which showed Delex as the owner of Lot 9.01. Closing of title to Lot 9 occurred on March 15, 2006, prior to the Board's final disposition of the application.
On August 16, 2006, the Board voted unanimously to deny the application. The Board memorialized its decision by Resolution 06-24, dated October 3, 2006, wherein it found that the lots merged as a single lot for zoning purposes because they remained under Sadeghian's common ownership after the July 2002 amendment to the Zoning Ordinance; that Sadeghian's conveyance of Lot 9.01 to Delex created an unlawful subdivision; and that the hardship that [plaintiff] cites as a basis for variance relief was self-created by the action of [Sadeghian], and also by [plaintiff's] representative's*fn1 own decision to cause [plaintiff] to purchase the property without the development approvals that he himself knew would be required, and subject to the limitations of the existing zoning regulations and the consequences that resulted from Sadeghian's actions.
On November 9, 2006, plaintiff filed a complaint in lieu of prerogative writs, seeking reversal of the Board's denial of the requested variances as arbitrary, capricious and unreasonable. Alternatively, plaintiff claimed inverse condemnation. The parties filed summary judgment motions. The motion judge found that the Board's denial of the variances was not arbitrary, capricious or unreasonable. Accordingly, the judge entered an order on January 15, 2008, granting defendants' motion and denying plaintiff's motion.*fn2
The judge later addressed the inverse condemnation issue, which is the subject of this appeal. She found that:
Essentially, [plaintiff's] argument is that the property has been zoned into idleness and that constitutes a taking. That proposition, if it is found to be so, is an accurate statement of the law. If the property is zoned into idleness and there are no intervening factors, then ...