NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0133-21
JEROME MASON,
Plaintiff-Appellant,
v.
TOWNSHIP OF MIDDLETOWN ZONING BOARD OF ADJUSTMENT and TOWNSHIP OF MIDDLETOWN,
Defendants-Respondents. ____________________________
Submitted July 19, 2022 – Decided August 10, 2022
Before Judges Sabatino and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0965-19.
Gasiorowski & Holobinko, attorneys for appellant (Ronald S. Gasiorowski, of counsel and on the briefs).
Collins, Vella & Casello, LLC, attorneys for respondent Township of Middletown Zoning Board of Adjustment (Gregory W. Vella, of counsel and on the brief). Archer & Greiner, PC, attorneys for respondent Township of Middletown (Brian M. Nelson, of counsel; Kira S. Dabby, of counsel and on the brief).
PER CURIAM
Plaintiff Jerome Mason, a builder, purchased an undersized parcel of land
with the hope of building a single-family house. He appeals from orders
granting summary judgment to defendant the Township of Middletown
(Township) and dismissing his claims against defendant the Township's Zoning
Board of Adjustment (Zoning Board). The trial court granted summary
judgment to the Township, holding that plaintiff's property had merged with an
adjoining property when the two properties had come under common ownership.
The court dismissed the claims against the Zoning Board, holding that the Board
had correctly determined that it had no jurisdiction to consider plaintiff's
variance application because he was seeking variances on part of a merged
property.
We agree with the trial court that plaintiff's parcel had merged with an
adjoining property. We, therefore, affirm both orders.
A-0133-21 2 I.
The material facts concerning the history of the property are not in dispute.
We discern those facts from the record, viewing them in the light most favorable
to plaintiff, the non-moving party. Grande v. Saint Clare's Health Sys., 230 N.J.
1, 23-24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
In 2012, plaintiff purchased a vacant piece of real property located in the
Bayshore section of the Township. Plaintiff is a builder, and he purchased the
property with the plan to construct a single-family house that he would then sell.
On the Township's tax map, the property is listed as Block 459, Lot 16
(Lot 16 or the Property). Lot 16 is approximately fifty feet wide, 100 feet deep,
and consists of just under 5,000 square feet. Lot 16 is in the Township's R-10
zone, which requires residential use with a minimum lot area of 10,000 square
feet and a minimum of 100 feet of street frontage. Accordingly, Lot 16 is
undersized and has insufficient frontage.
The Bayshore section of the Township was developed in the early 1900s
at a time when there were no applicable zoning ordinances or laws. A
subdivision map from 1911 shows that the area had been originally developed
with numerous lots that had twenty-five feet of street frontage and 100 feet of
depth.
A-0133-21 3 The Township adopted its first zoning ordinances in 1935 and established
a planning board in 1954. See Bartlett v. Middletown Twp., 51 N.J. Super. 239,
246 (App. Div. 1958). Eventually, the Township adopted the R-10 zone.
Plaintiff has acknowledged that the Township had adopted the R-10 zone before
he bought the Property.
Lot 16 is adjacent to Block 459, Lot 9 (Lot 9), and both lots front on the
same residential street. Lot 9 has 125 feet of street frontage, is 100 feet deep,
covers more than 10,000 square feet of area, and is developed with a single -
family house.
In 1982, the owners of Lot 9, Gary and Ivonne Thorne, purchased Lot 16.
In 2006, the Thornes divorced, and the entire property (Lots 9 and 16) was
conveyed to Gary Thorne. Gary Thorne died in December 2010, and the
executor of his estate, his son, listed Lots 9 and 16 for separate sale.
In 2012, plaintiff purchased Lot 16. The purchase contract was
conditioned on plaintiff obtaining a building permit from the Township.
Plaintiff, however, waived that condition and purchased Lot 16 without a
building permit. Before plaintiff closed on the purchase, his attorney was
advised by the title company that Lot 16 may have merged with Lot 9 and the
A-0133-21 4 attorney should investigate that situation. Apparently, no investigation was
conducted.
At approximately the same time that plaintiff purchased Lot 16, another
person purchased Lot 9 from the estate. Shortly after those purchases, both
plaintiff and the owner of Lot 9 recorded their deeds with the Township. In May
2013, the Township's zoning officer sent plaintiff a letter stating that Lots 9 and
16 "appear to be merged properties," noting that Lot 9 "contains the principal
dwelling" and Lot 16 contains "the accessory structures." The letter went on to
state: "I am making you aware of this [situation] as the tax records show that
you are in ownership of" Lot 16.
Several months later, in December 2013, plaintiff filed an application for
a permit to construct a house on Lot 16. In January 2014, the Township zoning
officer informed plaintiff that his application was denied because Lot 16 had
merged with Lot 9. Plaintiff sought clarification from the Township and the
Township's zoning officer responded in a letter explaining that for plaintiff to
develop the property, he would need approval of a subdivision of Lot 16 from
Lot 9. Plaintiff was, therefore, directed to file an application with the
Township's Planning Board.
A-0133-21 5 Four years later, in April 2018, plaintiff filed an application for a permit
to construct a single-family house on Lot 16. The Township's zoning officer
denied that application. That same year, plaintiff applied to the Zoning Board
for variances to allow him to build a house on Lot 16. In January 2019, after
conducting hearings, the Zoning Board determined that it lacked jurisdiction to
hear the application because Lot 16 had merged with Lot 9 and plaintiff was
filing an application concerning only a portion of the merged property.
In March 2019, plaintiff filed a complaint in lieu of prerogative writs
against the Zoning Board. Thereafter, he amended his complaint to add the
Township as a defendant. Following a conference with counsel, the trial court
bifurcated the case and directed that it would consider the legal issue of lot
merger first before addressing the claims against the Zoning Board.
Thereafter, the Township moved for a partial summary judgment to
dismiss the claims against it. On April 16, 2021, the trial court issued a written
opinion and order granting partial summary judgment in favor of the Township
and dismissing plaintiff's claims against the Township. The court held that Lot
16 had merged with Lot 9 and, therefore, plaintiff had no right to receive a
building permit for an undersized piece of property, which was part of a larger
property that had not been duly subdivided.
A-0133-21 6 Thereafter, plaintiff moved for summary judgment against the Zoning
Board seeking a remand to the Zoning Board for a hearing on the merits of his
application. The Zoning Board opposed that motion. On August 6, 2021, the
trial court issued a written opinion and final judgment dismissing plaintiff's
claims against the Zoning Board. The trial court held that the Zoning Board had
correctly decided that it lacked jurisdiction to hear an application for a variance
on part of a merged property. Plaintiff now appeals from the orders dismissing
the complaint against the Township and the Zoning Board.
II.
Before us, plaintiff makes three arguments, contending that (1) the trial
court erred in holding that Lots 16 and 9 had merged; (2) the Township should
be estopped from denying plaintiff a building permit; and (3) the Zoning Board
erred in determining that it did not have jurisdiction to consider plaintiff's
variance application. Because we conclude that Lots 16 and 9 merged when
they came under common ownership, we reject all of plaintiff's arguments and
affirm the trial court's orders.
A. Summary Judgment to the Township.
We review a grant of summary judgment de novo and apply the same
standard as the trial court. Caraballo v. City of Jersey City Police Dep't, 237
A-0133-21 7 N.J. 255, 264 (2019) (citing RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J.
459, 472 (2018)). We will uphold a grant of summary judgment if "the
pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." Ibid. (quoting RSI Bank, 234 N.J. at 472); accord
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
Whether parcels of land have merged by operation of law is a legal
question that appellate courts review de novo. See Fallone Properties, L.L.C. v.
Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004).
Moreover, whether a hardship was self-created also involves a legal question.
See Egeland v. Zoning Bd. of Adjustment of Twp. of Colts Neck, 405 N.J. Super.
329, 332 (App. Div. 2009). We give substantial deference to a local zoning
board's findings of fact, but "it is essential that the board's actions be grounded
in evidence in the record." Wilson v. Brick Twp. Zoning Bd. of Adjustment,
405 N.J. Super. 189, 196-97 (App. Div. 2009) (quoting Fallone, 369 N.J. Super.
at 562).
A-0133-21 8 1. Merger.
"The term 'merger' is used in zoning law to describe the combination of
two or more contiguous lots of substandard size, that are held in common
ownership, in order to meet the requirements of a particular zoning regulation."
Jock v. Zoning Bd. of Adjustment of the Twp. of Wall, 184 N.J. 562, 578 (2005)
(citing Robert M. Anderson, 2 American Law of Zoning § 9.67 (4th ed. 2005)).
In effect, when undersized lots come under common ownership, the lots are
deemed to be combined to comply with existing zoning laws. Ibid.; see also
Chicalese v. Monroe Twp. Plan. Bd., 334 N.J. Super. 413, 417 (Law Div. 2000).
No formal action needs to be taken for the merger to occur; instead, the merger
is deemed to happen as a matter of law. Jock, 184 N.J. at 581 (explaining that
"merger takes place as a matter of law where adjacent substandard lots come
into common legal title").
The doctrine of merger was recognized over fifty years ago by the New
Jersey Supreme Court. Loechner v. Campoli, 49 N.J. 504, 508 (1967). In that
case, the Court held that when the owner of three undersized lots of real property
acquired two more adjacent lots, all five lots became one parcel of land even
though they were designated as five separate lots on the original map that created
the parcels. Id. at 508. Accordingly, the Court held that the subsequent
A-0133-21 9 separation of the two lots, which were vacant, from the remaining three lots,
constituted a subdivision that required approval. Id. at 511-12.
"There are a number of recognized exceptions to the merger doctrine."
Jock, 184 N.J. at 582. The merger doctrine does not apply to (1) adjoining lots
that meet the governing zoning requirements; (2) lots that were approved for
subdivision by the governing planning board; or (3) situations where merger
would not create a conforming lot because the lots front on different streets (that
is, the lots are back-to-back). Id. at 582-83. Moreover, merger applies only to
adjacent undersized lots held in common legal title. A merger does not occur
based on "equitable ownership" of separately titled property. Id. at 588-89.
If lots have merged, thereafter subdivision approval is necessary before
the lots can be separated and developed. Id. at 578. Accordingly, "[c]onveyance
of a portion that would result in one or more undersized lots under current zoning
standards is a subdivision and ordinarily requires the grant of a variance."
Dalton v. Ocean Twp. Zoning Bd. of Adjustment, 245 N.J. Super. 453, 460-61
(App. Div. 1991).
The record here establishes that Lot 16 was an undersized lot in 1982 when
it came under common ownership of the Thornes who owned the adjacent Lot
9. Consequently, at that time, Lot 16 merged with Lot 9.
A-0133-21 10 2. Estoppel.
Plaintiff argues that the Township should be estopped from denying hi m
a building permit for Lot 16 because the Township took no action to prevent the
estate of Gary Thorne from separately selling Lot 16 and Lot 9. Given the
undisputed facts in the record, we reject this estoppel argument.
Equitable estoppel "is a doctrine 'founded in the fundamental duty of fair
dealing imposed by law.'" Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J.
67, 86 (2012) (quoting Knorr v. Smeal, 178 N.J. 169, 178 (2003)). "[T]he
doctrine is designed to prevent injustice by not permitting a party to repudiate a
course of action on which another party has relied to his [or her] detriment," and
is "invoked in the interests of justice, morality and common fairness." Ibid.
(quoting Knorr, 178 N.J. at 178.). "[T]o establish [an] equitable estoppel, [a
party] must show that [the other party] engaged in conduct, either intention ally
or under circumstances that induced reliance, and that [the first party] acted or
changed [his or her] position to [his or her] detriment." Knorr, 178 N.J. at 178.
"Equitable estoppel may be invoked against a municipality 'where interest s of
justice, morality and common fairness clearly dictate that course.'" Middletown
Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162
A-0133-21 11 N.J. 361, 367 (2000) (quoting Gruber v. Mayor & Twp. Comm. of Raritan, 39
N.J. 1, 13 (1962)).
In considering whether a township should be estopped, it is appropriate to
consider whether the person seeking the estoppel can demonstrate a hardship
that was not self-created. See Jock, 184 N.J. at 591. Zoning boards have the
power to grant a variance from the strict application of land use regulations
where those regulations "would result in peculiar and exceptional practical
difficulties to, or exceptional and undue hardship upon, the developer" or owner
of the property. N.J.S.A. 40:55D-70(c)(1). "Undue hardship refers solely to the
particular physical condition of the property, not personal hardship to its owner,
financial or otherwise." Jock, 184 N.J. at 590.
The availability of a hardship variance, however, depends on how the
hardship was created. Ibid. "Where the hardship has been created by the
applicant, or a predecessor in title, relief will normally be denied." Id. at 591
(citing Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606
(1980)). "[S]elf-created hardship requires an affirmative action by the
landowner or the predecessor in title that brings an otherwise conforming
property into non-conformity." Ibid.; see also Barnes Land Corp. v. Bd. of
Adjustment of Twp. of Wyckoff, 174 N.J. Super. 301, 304 (App. Div. 1980)
A-0133-21 12 (finding plaintiff's hardship self-created because its predecessor-in-title had
divided conforming property); Branagan v. Schettino, 100 N.J. Super. 580, 587
(App. Div. 1968) (holding where predecessor in title owned two adjoining,
integrated lots, which together conformed with requirements of zoning
ordinance, and thereafter sold one, hardship was self-created).
The doctrine of equitable estoppel can operate to preclude a finding of
self-created hardship. Simeone v. Zoning Bd. of Twp. of E. Hanover, 377 N.J.
Super. 417, 423 (App. Div. 2005). "[M]unicipal action taken after the course of
many years, which misleads a property owner as to the status of its property,
may estop[] the municipality from refusing to grant a variance on the basis of
self-created hardship." Ibid. (citing Scardigli v. Borough of Haddonfield
Zoning Bd. of Adjustment, 300 N.J. Super. 314, 319-20 (App. Div. 1997)).
The material undisputed facts in this record do not establish the grounds
for estopping the Township. Instead, the facts show that plaintiff purchased Lot
16 despite the opportunity to investigate whether Lot 16 had merged with Lot 9
before he made the purchase. Plaintiff's sale contract with the estate was
contingent on him obtaining a building permit. Instead of seeking that permit
before closing, plaintiff elected to waive that contingency and purchase Lot 16
without the building permit. Moreover, plaintiff did not contact the Township
A-0133-21 13 before purchasing Lot 16 to determine whether the lot could be developed
separately.
In addition, plaintiff's title company put his closing attorney on notice of
the merger of Lot 16 and Lot 9, but that issue was not investigated before
plaintiff closed on Lot 16. At his deposition, plaintiff testified that he d id not
recall his lawyer notifying him of the merger issue. 1 The relevant issue for
finding an estoppel, however, is whether the Township took actions on which
plaintiff reasonably relied. The record contains no evidence that the Township
took any action on which plaintiff could have reasonably relied.
The Township also did not unduly delay acting concerning plaintiff's lot.
Within one year of plaintiff purchasing Lot 16, the Township notified him that
his property probably had merged with Lot 9. Conveyances contravening
subdivision laws can be rescinded by timely action of the municipality. See
N.J.S.A. 40:55D-55. Although the Township had the right to challenge the
estate's separate sales of Lot 16 and Lot 9, its failure to do so under these facts
did not constitute an estoppel. The Municipal Land Use Law does not obligate
a municipality to institute a civil action to enjoin or set aside an illegal
conveyance. N.J.S.A. 40:55D-55. Moreover, when plaintiff was notified in
1 Plaintiff sued his closing attorney and settled that claim. A-0133-21 14 2013 by the Township of the merger, he took no action and did not request the
Township to challenge the separate sales of his Lot 16 and Lot 9.
Under N.J.S.A. 40:55D-55, a municipality's action to void a conveyance
that causes an unapproved subdivision must take place within two years. Fox v.
Twp. of W. Milford, 357 N.J. Super. 123, 127 (App. Div. 2003). We have
previously concluded that this time limitation does not "validate . . . [the
subdivided lot] for development purposes." Ibid. (alterations in original)
(quoting Dalton, 245 N.J. Super. at 462). A municipality's planning board may
not become aware of a conveyance within that time period, and "the
enforceability of the land-use planning laws 'should not depend on an illegal
subdivision's reaching its second birthday before municipal officials notice it.'"
Id. at 128 (quoting Dalton, 245 N.J. Super. at 463). Given the circumstances of
this case, there is no basis for equitable estoppel that would contradict the
"strong public policy" represented by the Municipal Land Use Law. Ibid.
B. The Dismissal of the Claims Against the Zoning Board.
In his complaint in lieu of prerogative writs, plaintiff sought to compel the
Zoning Board to consider his variance application. After conducting appropriate
hearings, the Zoning Board determined that plaintiff was asking for a variance
on a portion of property without the consent of the owner of Lot 9. The Zoning
A-0133-21 15 Board also found that plaintiff's application required subdivision approval.
Consequently, the Zoning Board dismissed plaintiff's application, finding that it
lacked jurisdiction. After determining that Lot 16 and Lot 9 had merged, the
trial court held that the Zoning Board had correctly determined it lacked
jurisdiction and that the trial court had no legal grounds to compel the Zoning
Board to act on plaintiff's application.
The Zoning Board's decision on a variance can be set aside only when
arbitrary, capricious, or unreasonable. Cell S. of N.J., Inc. v. Zoning Bd. of
Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Section 540-409A (6)
of the Land Use Ordinance of the Township provides that all applications before
the Zoning Board require an affidavit from the owner if the application is not
made by the property owner.
Plaintiff asked the Zoning Board to act on an application on a portion of
merged property without the consent of the owner of Lot 9. Accordingly, we
agree with the trial court that there are no grounds to compel the Zoning Board
to act on plaintiff's variance application and we affirm the dismissal of the
complaint in lieu of prerogative writs against the Zoning Board.
Citing to our decision in Scardigli, plaintiff argues that the Zoning Board
can hear an application on a lot that came into existence by an improper
A-0133-21 16 conveyance even if that lot is undersized. See 300 N.J. Super. at 320-21. Our
decision in Scardigli is distinguishable. In Scardigli, we held that the
municipality was estopped from contending that the lots had merged. Id. at 319-
20. As we have already analyzed, estoppel does not apply under the facts here.
Plaintiff also asserts that he is in a "catch-22" situation because the owner
of Lot 9 refuses to consent to a subdivision application. Plaintiff's situation is
not a catch-22. Instead, the owner of Lot 9 has an interest in whether the
adjoining undersized Lot 16 is developed with a house. As we already analyzed,
plaintiff had the opportunity to investigate the merger, but he either consciously
chose to go forward with the purchase of Lot 16 or ignored the risk that the lots
had merged. Consequently, plaintiff placed himself in his current position and
any hardship was self-created.
In summary, we reject plaintiff's arguments, Lots 16 and 9 merged, and
we affirm both trial court's orders.
Affirmed.
A-0133-21 17