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Aspen Contracting Corporation v. Board of Adjustment of the Township of Berkeley

A-4858-05T5 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; MERGER —The doctrine of merger of commonly owned non-conforming lots is inapplicable where a combination of such lots would still result in a non-conforming lot.

The owner of three separate, yet contiguous, under-sized lots sued the municipality’s zoning board to reverse the denial of bulk variances. The owner had purchased the three lots, and then sold the middle lot to one of its employees. At the time of the agreement of the sale, the board was considering an ordinance to increase the required lot size. The new required lot size would be larger than any of the three lots was individually. The owners claimed that they did not know of the zoning change until after the sales agreement with its employee had been signed, even though they learned of it before the deed had been delivered. Twelve hours after the zoning ordinance became effective, the employee received his deed.

The employee testified that he offered to sell the property back to the owner when the new zoning ordinance passed, but that the owner would not buy it back until it found out if the bulk variance application would be approved for the other two lots. The owner offered testimony from an engineer who stated that he was concerned about some drainage problems in the area of the three lots. The solution that the engineer proposed required installation of a basin spanning the three lots.

The board believed that the owners actually knew of the pending rezoning ordinances, and that the transfer of the middle lot to the employee was an attempt to avoid the impact of the rezoning. Accordingly, the board found that any hardship was self-created by the owner. Consequently, it did not find the requisite hardship to support the requested variances. Also, the board felt it would hurt the public good to issue the variance, as the combining of the three lots to form a single lot might exacerbate the drainage problem.

The owner sued, but, based on the record before it, the lower court found that the board had ruled properly. The Court also found that the board’s conclusions were properly grounded in the record.

The Court found that the sale to the employee created the hardship resulting from an undersize lot. To get relief from such a zoning requirement, an applicant must first show that it was unsuccessful in either selling the subject lot or acquiring abutting land. Here, the Court found that the board was justified in finding that the owner had refused to purchase the employee-owned lot.

The Court noted that the doctrine of merger was inapplicable to this situation because the combination of the three lots still would result in a nonconforming lot. Further, allowing the development of the three lots separately, without an attempt at conformity would have an adverse effect contrary to what was intended by passing the ordinance – namely conformity. The Court also noted that the owner failed to demonstrate how the issuing of the variance would not create a further detriment – the drainage problem.

Thus, the Court affirmed the lower court’s decision.

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