NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1866-20
RICHARD TOKARSKI,
Plaintiff-Respondent,
v.
BOROUGH OF ISLAND HEIGHTS PLANNING BOARD,
Defendant-Appellant. ___________________________
Argued December 14, 2021 – Decided September 13, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0110-20.
Terry F. Brady argued the cause for appellant (Brady & Kunz, PC, attorneys; Terry F. Brady, on the briefs).
Harvey L. York argued the cause for respondent (Novins, York, Jacobus & Dooley, attorneys; Lauren M. Dooley, on the brief).
PER CURIAM Defendant Borough of Island Heights Planning Board (Board) appeals
from the February 9, 2021 judgment of the Law Division reversing the Board's
resolution denying plaintiff Richard Tokarski's application for a subdivision,
and remanding the matter for further proceedings. We affirm.
I.
Plaintiff owns two adjoining lots in Island Heights. A historic home is
located on Lot 6. A separate two-car garage is located on Lot 2. Lot 6 has 49.22
feet of frontage on River Avenue, a depth of 124 feet, and a lot size of 6,355
square feet. Lot 2 has 50 feet of frontage on Ocean Avenue, a depth of 95 feet,
and a lot size of 4,750 square feet. The lots meet along their rear property lines.
Plaintiff purchased the lots together in 2017.
The parcels are in the borough's medium density residential district. The
zoning ordinance requires a minimum frontage of 75 feet, a minimum depth of
100 feet, and a minimum lot size of 7,500 square feet for the construction of a
residence. Neither lot meets these requirements. However, according to the
zoning ordinance,
any existing subdivided lots or parcels of land containing at least three thousand seven hundred fifty (3,750) square feet, having a frontage of fifty (50') feet on an accepted street and having a depth of seventy-five (75') feet, will not be a nonconforming use but will continue to be a residential lot.
A-1866-20 2 [Island Heights, N.J., Code § 32-4.4(b)(1).]
The parcels, which existed when the zoning ordinance was adopted, meet the
requirements for legally protected existing residential lots, provided Lot 6's
frontage of 49.22 feet is considered to be a de minimis deviation from the
frontage requirement at approximately nine inches.
Plaintiff proposes to renovate the home on Lot 6 and demolish the garage
on Lot 2 to construct a new residence on that parcel. When he approached the
zoning officer about this proposal, plaintiff learned for the first time that at an
unidentified time, the municipality considered the two lots merged for zoning
purposes due to common ownership and use. At the direction of the zoning
officer, plaintiff applied for a minor subdivision, which would restore the two
lots to their original configurations for zoning purposes, and for variances
relating to his proposed development.
The Board considered plaintiff's presentation and testimony, including the
testimony of a licensed professional planner, as well as the objections interposed
by neighboring property owners. On December 12, 2019, the Board adopted a
resolution denying plaintiff's application. The Board considered the parcels to
have been properly merged for zoning purposes and concluded plaintiff did not
A-1866-20 3 establish that a subdivision was warranted. The Board also rejected plaintiff's
variance requests. 1
Plaintiff thereafter filed a complaint in the Law Division alleging an
action in lieu of prerogative writs challenging the Board's resolution. On
February 9, 2021, Judge Marlene Lynch Ford issued a comprehensive written
opinion after a trial on the papers in which she concluded the municipality's
merger of the two lots for zoning purposes was not supported by law.
Judge Ford observed that the purpose of the merger doctrine is to bring
adjacent nonconforming lots in common ownership into conformity to advance
the zoning scheme. Loechner v. Campoli, 49 N.J. 504, 511-12 (1967). But, as
Judge Ford noted, the merger doctrine does not apply where the nonconforming
parcels front different streets, are back-to-back, and merger will not create a
conforming lot. See Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 582
(2005). She found that merger is not intended to create an exceptionally long,
narrow plot facing different streets. See Chirichello v. Zoning Bd. of
Adjustment, 78 N.J. 544, 554 n.2 (1979). The judge observed that merger may
1 On July 12, 2018, the Board adopted its first resolution denying plaintiff's application. Plaintiff filed a complaint in the Law Division challenging the resolution. On January 11, 2019, because the recording of the Board's hearing contained numerous gaps, the trial court remanded the matter back to the Board for rehearing and dismissed that complaint. A-1866-20 4 be appropriate where a property owner constructs a single residence on all or
part of two contiguous nonconforming lots that face different streets. See Bridge
v. Neptune Twp. Zoning Bd. of Adjustment, 233 N.J. Super. 587, 595 (App.
Div. 1989). That situation, the judge observed, is not present here, as the
residence is entirely on Lot 6 and the garage is a free-standing structure entirely
on Lot 2.
Judge Ford concluded the Board erred when it found the lots were properly
merged, given that they have frontage on different streets, are back -to-back, the
existing structures are on separate lots, and the long, narrow merged lot is
nonconforming because it has less than seventy-five feet of frontage on both
streets. In addition, the Judge concluded that under § 32-4.4(b)(1) of the
municipal zoning ordinance, the lots are legally protected residential lots,
negating application of the merger doctrine.
Judge Ford also vacated the Board's denial of plaintiff's variance requests.
The judge found the Board acted on the mistaken assumptions that the lots had
properly been merged and were not legally protected residential parcels under
the ordinance. The judge found the Board mistakenly believed variances were
necessary for Lot 6 when its preexisting nonconformities were protected by the
ordinance. The judge concluded that the only variances necessary for plaintiff
A-1866-20 5 to proceed with his development proposal were those relating to the construction
of a residence on Lot 2.
The judge reversed the Board's resolution, remanded the matter, and
directed the Board: (1) to reconsider plaintiff's application without considering
the two parcels to be merged for zoning purposes; (2) to the extent it is necessary
to clarify the status of the parcels, to grant plaintiff's minor subdivision
application to restore the status and configuration of the lots to that which
existed when merger was applied; (3) to consider Lot 6 as a preexisting
nonconforming residential parcel; and (4) to consider plaintiff's variance
requests for Lot 2 as a preexisting nonconforming residential parcel independent
of Lot 6.
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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-1866-20
RICHARD TOKARSKI,
Plaintiff-Respondent,
v.
BOROUGH OF ISLAND HEIGHTS PLANNING BOARD,
Defendant-Appellant. ___________________________
Argued December 14, 2021 – Decided September 13, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0110-20.
Terry F. Brady argued the cause for appellant (Brady & Kunz, PC, attorneys; Terry F. Brady, on the briefs).
Harvey L. York argued the cause for respondent (Novins, York, Jacobus & Dooley, attorneys; Lauren M. Dooley, on the brief).
PER CURIAM Defendant Borough of Island Heights Planning Board (Board) appeals
from the February 9, 2021 judgment of the Law Division reversing the Board's
resolution denying plaintiff Richard Tokarski's application for a subdivision,
and remanding the matter for further proceedings. We affirm.
I.
Plaintiff owns two adjoining lots in Island Heights. A historic home is
located on Lot 6. A separate two-car garage is located on Lot 2. Lot 6 has 49.22
feet of frontage on River Avenue, a depth of 124 feet, and a lot size of 6,355
square feet. Lot 2 has 50 feet of frontage on Ocean Avenue, a depth of 95 feet,
and a lot size of 4,750 square feet. The lots meet along their rear property lines.
Plaintiff purchased the lots together in 2017.
The parcels are in the borough's medium density residential district. The
zoning ordinance requires a minimum frontage of 75 feet, a minimum depth of
100 feet, and a minimum lot size of 7,500 square feet for the construction of a
residence. Neither lot meets these requirements. However, according to the
zoning ordinance,
any existing subdivided lots or parcels of land containing at least three thousand seven hundred fifty (3,750) square feet, having a frontage of fifty (50') feet on an accepted street and having a depth of seventy-five (75') feet, will not be a nonconforming use but will continue to be a residential lot.
A-1866-20 2 [Island Heights, N.J., Code § 32-4.4(b)(1).]
The parcels, which existed when the zoning ordinance was adopted, meet the
requirements for legally protected existing residential lots, provided Lot 6's
frontage of 49.22 feet is considered to be a de minimis deviation from the
frontage requirement at approximately nine inches.
Plaintiff proposes to renovate the home on Lot 6 and demolish the garage
on Lot 2 to construct a new residence on that parcel. When he approached the
zoning officer about this proposal, plaintiff learned for the first time that at an
unidentified time, the municipality considered the two lots merged for zoning
purposes due to common ownership and use. At the direction of the zoning
officer, plaintiff applied for a minor subdivision, which would restore the two
lots to their original configurations for zoning purposes, and for variances
relating to his proposed development.
The Board considered plaintiff's presentation and testimony, including the
testimony of a licensed professional planner, as well as the objections interposed
by neighboring property owners. On December 12, 2019, the Board adopted a
resolution denying plaintiff's application. The Board considered the parcels to
have been properly merged for zoning purposes and concluded plaintiff did not
A-1866-20 3 establish that a subdivision was warranted. The Board also rejected plaintiff's
variance requests. 1
Plaintiff thereafter filed a complaint in the Law Division alleging an
action in lieu of prerogative writs challenging the Board's resolution. On
February 9, 2021, Judge Marlene Lynch Ford issued a comprehensive written
opinion after a trial on the papers in which she concluded the municipality's
merger of the two lots for zoning purposes was not supported by law.
Judge Ford observed that the purpose of the merger doctrine is to bring
adjacent nonconforming lots in common ownership into conformity to advance
the zoning scheme. Loechner v. Campoli, 49 N.J. 504, 511-12 (1967). But, as
Judge Ford noted, the merger doctrine does not apply where the nonconforming
parcels front different streets, are back-to-back, and merger will not create a
conforming lot. See Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 582
(2005). She found that merger is not intended to create an exceptionally long,
narrow plot facing different streets. See Chirichello v. Zoning Bd. of
Adjustment, 78 N.J. 544, 554 n.2 (1979). The judge observed that merger may
1 On July 12, 2018, the Board adopted its first resolution denying plaintiff's application. Plaintiff filed a complaint in the Law Division challenging the resolution. On January 11, 2019, because the recording of the Board's hearing contained numerous gaps, the trial court remanded the matter back to the Board for rehearing and dismissed that complaint. A-1866-20 4 be appropriate where a property owner constructs a single residence on all or
part of two contiguous nonconforming lots that face different streets. See Bridge
v. Neptune Twp. Zoning Bd. of Adjustment, 233 N.J. Super. 587, 595 (App.
Div. 1989). That situation, the judge observed, is not present here, as the
residence is entirely on Lot 6 and the garage is a free-standing structure entirely
on Lot 2.
Judge Ford concluded the Board erred when it found the lots were properly
merged, given that they have frontage on different streets, are back -to-back, the
existing structures are on separate lots, and the long, narrow merged lot is
nonconforming because it has less than seventy-five feet of frontage on both
streets. In addition, the Judge concluded that under § 32-4.4(b)(1) of the
municipal zoning ordinance, the lots are legally protected residential lots,
negating application of the merger doctrine.
Judge Ford also vacated the Board's denial of plaintiff's variance requests.
The judge found the Board acted on the mistaken assumptions that the lots had
properly been merged and were not legally protected residential parcels under
the ordinance. The judge found the Board mistakenly believed variances were
necessary for Lot 6 when its preexisting nonconformities were protected by the
ordinance. The judge concluded that the only variances necessary for plaintiff
A-1866-20 5 to proceed with his development proposal were those relating to the construction
of a residence on Lot 2.
The judge reversed the Board's resolution, remanded the matter, and
directed the Board: (1) to reconsider plaintiff's application without considering
the two parcels to be merged for zoning purposes; (2) to the extent it is necessary
to clarify the status of the parcels, to grant plaintiff's minor subdivision
application to restore the status and configuration of the lots to that which
existed when merger was applied; (3) to consider Lot 6 as a preexisting
nonconforming residential parcel; and (4) to consider plaintiff's variance
requests for Lot 2 as a preexisting nonconforming residential parcel independent
of Lot 6. A February 9, 2021 judgment memorializes the court's decision.
This appeal follows. The Board argues the trial court erred as a matter of
law in its interpretation and application of the merger doctrine.
II.
"[W]hen reviewing the decision of a trial court that has reviewed
municipal action, we are bound by the same standards as was the trial court."
Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562
(App. Div. 2004). "Thus, while we will give substantial deference to findings
of fact, it is essential that the [municipal body's] actions be grounded in evidence
A-1866-20 6 in the record." Ibid. The trial court's findings of fact after a bench trial will be
upheld if supported by competent, relevant, and reasonably credible evidence.
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). In addition,
although "public bodies . . . must be allowed wide latitude in their delegated
discretion," Jock, 184 N.J. at 597, we review questions of law de novo. Dunbar
Homes, Inc. v. Zoning Bd. of Adjustment, 233 N.J. 546, 559 (2018).
Having carefully reviewed the Board's arguments in light of the record
and applicable legal principles, we affirm the February 9, 2021 judgment for the
reasons stated by Judge Ford in her thorough and well-reasoned written opinion.
We add the following brief comments.
The propriety of the merger of plaintiff's two parcels for zoning purposes
is a legal question. As Judge Ford explained, the purpose of the doctrine is to
bring nonconforming lots in common ownership into greater conformance with
zoning requirements. We agree with Judge Ford that merger is inapposite here.
The two back-to-back parcels face different streets. The existing house is
entirely contained on one of the lots. When the zoning ordinance was enacted,
the lots did not conform with zoning requirements, but were granted legal
protection as residential parcels. When merged, the combined lot does not
conform with zoning requirements. Merger, therefore, does not create greater
A-1866-20 7 conformity with zoning, does not resolve issues that may arise when a residence
straddles more than one lot, and does not create a single parcel along one street.
We are not persuaded by the Board's arguments to the contrary.
Affirmed.
A-1866-20 8