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Ciaglia v. West Long Branch Zoning Board of Adjustment

A-0787-10T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES; HARDSHIPS — When an undersized nonconforming lot is created as part of the fully approved subdivision and subsequent changes to zoning rules render that lot unuseable, the hardship created is not considered to self-imposed just because the predecessor owner created the initial subdivision.

The owner of an isolated remnant lot sued a zoning board claiming that the zoning board’s refusal to grant variances to permit a viable use of his isolated and undersized lot constituted a regulatory taking. The parcel was part of a much larger parcel that had been subdivided in 1957 by the owner’s predecessor-in-title. That subdivision yielded twenty-eight lots but, although this particular lot did not comply with the applicable frontage and depth requirements based on the municipality’s land use controls in place at the time, the planning board nonetheless approved the subdivision and the municipal engineer had certified that the subdivision map conformed with all state and municipal ordinances. The lot then became part of the municipality’s more restrictive R-22 zone.

This was not the first time there was a suit over development of the undersize lot. Years after the subdivision, the owner’s predecessor-in-title acquired the property in a tax sale foreclosure and applied for variances to build a one-family dwelling. The zoning board denied that earlier application and the predecessor-in-title filed suit. The lower court remanded that matter back to the zoning board, which again denied the application. Instead of filing suit to challenge the second denial, the original owner moved to reinstate her earlier action, which she amended to join the municipality as a party and to add a claim for inverse condemnation. In 1998, while the matter was pending, she agreed to dismiss the zoning board from the inverse condemnation action. Her suit against the municipality was dismissed due to her failure to provide discovery.

The new owner’s variance application sought five dimensional variances. The owner claimed that he had attempted, unsuccessfully, to acquire neighboring property to make the development of his property in compliance with the zoning ordinances. The zoning board denied his application, claiming that the proposal was substantially the same as the original owner’s dismissed application. The zoning board, however, allowed the new owner to submit new plans if they were substantially different from those in the original owner’s application. New plans were submitted, but the zoning board again denied the variance application, finding that the lot was a remnant lot that had not been created as a building lot, and whose development had been abandoned by the predecessor-in-title and then acquired by the municipality in a tax foreclosure. The zoning board found that a hardship variance was unavailable because the hardship was self-imposed by the predecessor-in-title. The owner sued for reversal of the denial, and sued for damages for inverse condemnation. The suit was bifurcated and the two causes of action were tried separately.

In the variance challenge, the lower court rejected the zoning board’s finding that the hardship had been self-created. It found undue hardship and that the new owner had met his burden by demonstrating that he attempted to contract with neighboring property owners to purchase their properties in order to secure a conforming lot. This meant that the owner had satisfied the positive criteria for a hardship variance. Nonetheless, it found that the zoning board did not act capriciously when it found that the applicant had failed to satisfy the negative criteria. After the ruling, based on the zoning board’s earlier indication that it might approve a variance application for a smaller dwelling the owner submitted such an application. Once again, the zoning board ruled that the owner had not satisfied the negative criteria and denied the variance application.

The owner then moved for summary judgment on his inverse condemnation action. The municipality filed a cross-motion for summary judgment, arguing that the statute of limitations barred the action, and again argued that the owner’s hardship was self-imposed. The lower court denied the owner’s motion, granted the municipality’s cross-motion, and dismissed the case.

The owner appealed and the Appellate Division reversed. The lower court had held that the statute of limitations barred the action because of the long period of time that had passed since the original owner’s inverse condemnation action was dismissed. Further, the lower court agreed with the municipality that the 1957 subdivision had created this substandard lot and this was a self-imposed hardship to be imputed to the new owner. For that reason, the lower court had denied the inverse condemnation relief.

The Court disagreed, finding that with respect to the immediate predecessor-in-title, the dismissal of her 1998 inverse condemnation action did not prevent the current owner from suing because the immediate prior owner could have, at any time, submitted a materially different variance application that could not be denied on res judicata grounds, and if that application were denied, she could have sued. As to the lack of hardship, the Court found that despite its non-conforming size, the lot was created as a buildable lot in the 1957 subdivision. The subdivision was approved by the municipal engineer. It was the post-1957 zoning rules that rendered the lot unusable and created the hardship.

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