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Katherine Newmark v. Board of Adjustment of the Township of Mendham

August 25, 2011

KATHERINE NEWMARK, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MENDHAM, AND ROGER HANLEY, DEFENDANTS-RESPONDENTS, AND THE TOWNSHIP OF MENDHAM, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 16, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

In this appeal, plaintiff Katherine Newmark appeals from the Law Division order denying her motion for relief in aid of litigant's rights pursuant to Rule 1:10-3 in connection with defendant Roger Hanley's (Hanley) illegal subdivision of a parcel of land owned by him without first securing subdivision approval from defendant, the Board of Adjustment of the Township of Mendham (Board). We affirm.

The relevant facts in this appeal were previously set forth in our unpublished opinion, Newmark v. Board of Adjustment, No. A-4857-05 (App. Div. July 19, 2007) (slip op. at 1-4):

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.. . . .

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.

The trial court nonetheless vacated the Board's approval, concluding that the decision was tainted by the apparent conflict of interest resulting from the Hanleys' architect also serving as a member of the Board, notwithstanding his recusal from voting on the Hanley application. Both parties appealed.

Citing Loechner v. Campoli, 49 N.J. 504 (1967), and the Court's more recent decision in Jock v. Zoning Board of Adjustment, 184 N.J. 562 (2005), we concluded that since both Lots 11 and 16 have a contiguous side yard border without intervening properties and because the lots were substandard, they merged when they came under common legal title, irrespective of how brief the common legal title may have been. Newmark v. Bd. of Adj., supra, slip op. at 8. We determined the "Hanleys, therefore, are required to obtain subdivision approval before the variance application can be considered." Id. at 8-9.

Our decision was filed on July 19, 2007, and on August 31, 2007, Hanley sold Lot 16 to John S. and Elise G. Paquette. Plaintiff learned of the conveyance sometime in 2008 and attempted to resolve the issue, to no avail. Plaintiff subsequently filed a motion to enforce litigant's rights pursuant to Rule 1:10-3.

The court conducted oral argument on the motion October 23, 2009. Plaintiff argued that because we had ruled on July 19, 2007, that Lot 11 and Lot 16 had merged, reversing the trial court on that issue, the Hanleys, in subsequently conveying one of their lots the following month, were in direct violation ...


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