On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4484-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2011
Before Judges Graves, J. N. Harris, and Koblitz.
This is an inverse condemnation case against the Borough of West Long Branch (the Borough). Plaintiff Joseph Ciaglia appeals from the September 15, 2010 dismissal of his complaint seeking remedies for a regulatory taking occasioned by the refusal of the West Long Branch Board of Adjustment (the Board of Adjustment) to grant variances to permit a viable use of an isolated undersized lot.*fn1 We reverse and remand for further proceedings.
The Law Division decided this matter in the context of competing cross-motions for summary judgment. Accordingly, we view the facts as undisputed -- both parties asserted that there were no genuine issues of material fact in dispute and the matter could be resolved as a matter of law.
Ciaglia is the current owner of vacant land located on De Forrest Place in West Long Branch. The property comprises an isolated remnant lot, consisting of an area of 7,142 square feet, which is presently designated as Block 19, Lot 20 on the Borough's tax assessment map. Prior to its subdivision in 1957, the parcel was originally part of a larger tract of land designated as Block 19, Lot 22B, which totaled approximately 11.40 acres.*fn2 The following is an excerpt from what the record refers to as a "1941 Survey by Franklin Survey Co.":
In March 1957, the West Long Branch Planning Board (Planning Board) approved an application to subdivide Lot 22B and adjoining Lot 2A (consisting of 4.34 acres). The resultant subdivision -- named Carol Park -- created Lloyd Avenue and extended De Forrest Place, and yielded twenty-eight lots (including the subject lot). The following illustration (highlighting the subject lot) is from one of the Borough's tax assessment maps*fn3 presented in the record:
The land that is the subject of this appeal was designated as Lot 22B on the subdivision map filed with the Monmouth County Clerk's Office in August 1957. The trapezoidal lot is shown with access to De Forrest Place along its approximate forty-five feet of frontage.*fn4
The Borough's land use controls in effect in 1957 placed the subdivision in a residential district known as Dwelling Zone
C. These regulations -- part of West Long Branch's zoning ordinance -- required each lot to have "lot frontage of not less than 100 feet and a depth of not less than 150 feet." The then-newly created Lot 22B did not comply with these zoning requirements because it had deficient frontage and less than 150 feet in depth. Despite these discordances, the Planning Board approved the subdivision with the municipal engineer certifying that the subdivision map "conforms with all the laws of the state and the municipal ordinances and requirements applicable thereto."*fn5
At some point not disclosed in the record, the Borough's land use regulations became more restrictive. The lot became subject to the regulations of the Borough's R-22 zone, which requires a minimum lot area of 22,500 square feet and 150 feet of street frontage. A graphical depiction of the current neighborhood (with the subject lot shaded) is presented below:
When the subdivision application was filed, the undivided land was owned by Ira and Gussie De Camp (collectively De Camp), who had acquired it several decades earlier. One month after subdivision approval was obtained (but several months before the subdivision map was actually filed with the Monmouth County Clerk), De Camp conveyed all of the subdivided lots -- except for then-Lot 22B -- to Davis & Taylor Corp.*fn6 In December 1958, De Camp conveyed Lot 22B to Russell and Lynn Dieffenbach (collectively Dieffenbach). The record does not suggest that the Borough ever challenged the De Camp sale of the lot to Dieffenbach or even sought to set aside the transfer as an illegal conveyance, subdivision, or re-subdivision.
Ciaglia's immediate predecessor in title, Sylvia Borst (Borst), came into ownership after first acquiring an assignment of the Borough's Tax Certificate for the Dieffenbach property when the assessed taxes on the lot went unpaid. In 1988, Borst obtained legal title to the lot through an in rem tax foreclosure. Borst had once owned separate parcels to the rear and side of the subject lot, formerly designated as lots 18 and 19 (now lots 30 and 29, respectively), but she sold them in 1980, long before acquiring legal title to Lot 20. Thus we do not consider the implications of the merger doctrine in land use law. See Jock v. Zoning Bd. of Adj. of the Twp. of Wall, 184 N.J. 562, 578 (2005).
In 1994, Borst applied to the Board of Adjustment for a variance for Lot 20, which she identified merely as an undersized lot, to permit the construction of a one-family dwelling. The Board of Adjustment denied the application, noting in its memorializing resolution the need for several dimensional variances, including: lot area; lot width; front, rear, and side yard setbacks; and lot coverage. A concept plan submitted with the variance application ...