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Betty Simon, Trustee, LLC v. Mount Laurel Township Zoning Board

A-6496-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES; HARDSHIP—Relying on a defective tax map for the length of a lot line where it would be unreasonable to have surveyed the line does not constitute a self-imposed hardship when applying for a lot width variance.

A developer purchased a tax sale certificate, foreclosed that certificate, and obtained title to two contiguous lots. Before purchasing the certificate, the developer examined the municipal tax maps and determined that the combined width of the two lots would permit construction of a residence in compliance with all of the applicable zoning requirements. After foreclosure, the developer learned that the tax maps were in error, and the combined width was about 8 foot narrower than what would be needed to permit development of any kind. The developer applied to the zoning board, seeking only a variance from the minimum lot width. The developer agreed that it would not seek any other variances and would make any prospective buyer of the property aware of the limitations on further development. Two other nearby, developed lots, also had inadequate lot width. The combined lots were “therefore similar to the surrounding community.” Objectors from a neighboring condominium association testified “that they believed that the original developer of the condominium intended that these lots would remain as open space.” When the developer asked the association if it would buy the lots for fair market value, the association was only willing to reimburse the developer for the cost of the tax certificate.

The zoning board denied the variance request, “finding that the hardship presented by the lots was self-imposed, that the applicant had failed to satisfy the negative and positive criteria, and that the applicant had failed to prove that it had attempted to remedy the inadequate width by purchasing property from the adjacent owners.” The lower court ruled that the action of the zoning board “was arbitrary and capricious and overturned it.” It found that the board “had based its decision about the self-imposed hardship entirely on hearsay and speculation” and had ignored that all of the evidence before the board that was favorable to the applicant. The transcripts before the board contained “numerous comments about [the developer’s] acquisition of title and its status as an investor, suggesting that it was not entitled to a variance on that ground alone.” The Appellate Division recognized that the validity of a board’s action rests on “its decision as expressed in its resolution rather than the motivation of its members,” but could not ignore that the focus on a developer as an investor “was a significant factor in the proceedings before the Board.” The Court said that the zoning board “failed to appreciate that [the developer] was effectively precluded from discovering the true width of the lots prior to the acquisition of title ... and relied on the official tax map to conclude that the combined lots would be a sufficient width to permit development.” The Court also pointed out that the board should have understood the motivation of the objectors. One neighbor objected “because his property already encroache[d] on [the applicant’s] lot and ... the condominium association ... preferr[ed] that property remain open and undeveloped.” Based on that testimony, any effort by the developer to acquire land from either neighbor would have been futile. Consequently, the board’s rejection of the application based on such a failure was arbitrary. In sum, the Court agreed that the board had acted in an arbitrary fashion, “the effect of which would be to entirely preclude any use of the property by [the applicant] and in effect, to force [the applicant] to provide open space for the objecting neighbors.”

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