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Dedousis v. Township of Howell Zoning Board of Adjustment

A-1671-02T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES; HARDSHIP—Where adjacent properties are separately owned by each spouse and not used for a common purpose, a land-locked parcel owned by one of the spouses is not to be dealt with as if the hardship was self-imposed.

An applicant sought a variance to build a single family residence on a “flag lot.” Access to a public street was by a long, narrow dedicated lane. The lane ran between two lots fronting on the highway. Each abutting lot contained a residence. The occupants of those residences objected to the variance application. The only variance required was from relief from a requirement that the structure had to be placed on a lot with frontage on an improved road. Otherwise, the lot conformed to the municipal zoning ordinance. The applicant argued that “denial of [the] variance application would effectively zone the property into inutility and would be confiscatory. The Board concluded that the hardship was self-created because title to [the lot] was acquired in the sole name of [the wife], at a time when her husband ... was the title owner of an adjoining tract of land, consisting of approximately thirty-seven acres.” Her husband sold the large tract to a developer and the developer conveyed title to a dedicated lane by way of a quit-claim deed. As a consequence, the board concluded that the husband and wife could have, and should have, resolved the lack of frontage during the period of time that each owned parcels adjacent one to the other. This was the basis for the board’s conclusion that the hardship was self-created.

At the time the wife acquired her lot from an estate, it was landlocked. It had been carved out as a landlocked parcel approximately 100 years earlier. The lot was created before any zoning regulations were enacted. A dirt lane existed and had been in use for many years within the bounds of the “dedicated lane” that constituted the “pole” of the flag lot. That is how her lot was accessed. There was evidence that the decedent whose estate sold the property had lived in a humble residential structure on the lot, but the structure had long since disappeared. The husband’s thirty-seven acre parcel had no frontage on the road to which the dirt path led, but had frontage on an intersecting road. The nearest point from the wife’s lot to either road was about the same. Also, there was no question that the wife’s flag lot did not merge with her husband’s thirty-seven acre tract because they were never under common ownership. With all of that in mind, the Appellate Division held that the zoning board’s denial and the lower court’s upholding of that determination were unsupported by the record. The landlocked status of the lot in question predated zoning regulations. The only change made by the applicant was to acquire title to a dedicated lane. That lane had previously provided access to the lot. “Even if the lane did not effectively provide legal access, by acquiring the quit-claim deed, the [applicant] ameliorated the landlocked status of [the lot to be developed]; [she] did not aggravate it.” Had the original owner of the landlocked lot remained alive and been the owner of the flag lot until after the woman’s husband sold his thirty-seven acre farm, the original owner “probably would have continued to have access to his land by virtue of the existence of the dedicated lane or through a prescriptive easement.” “Even if he did not have such a right, had he acquired legal title to the easement, his access to the road would have been clarified and memorialized of record.” Consequently, no one would have said that he, the deceased owner of the flag lot, would have created any hardship derived from the landlocked status of this lot. In fact, he would have improved the situation. Because there was no merger, the wife, as successor owner of the flag lot, stood in the same position.

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