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Elwood v. Zoning Board of Adjustment of the Borough of Wanaque

A-1914-08T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; SUBDIVISIONS — Each municipality has the power to define what constitutes a “minor subdivision” provided that the resulting subdivision does not involve any of three exceptions set forth in the Municipal Land Use Law.

An owner of an oversized, unimproved lot contracted to sell it to a home developer. The sale was subject to the owner obtaining subdivision approval. Each of the proposed lots was smaller than the minimum required lot size in the zone. When the owner submitted her subdivision application, the municipal attorney determined it required a density variance, rather than subdivision approval, and directed the owner to submit her application to the zoning board instead of the planning board. The owner complied, but reserved her right to object to the municipal attorney’s decision. The owner’s variance application was denied by the zoning board. The owner then challenged the board’s ruling and the municipal attorney’s initial determination to send the matter to the zoning board, claiming that the applicable statute provided that a density variance was not required.

The Law Division nullified the zoning board’s vote and directed the owner to re-file her application with the planning board. It ruled there was no density issue since “density,” under the applicable statute, meant “the permitted number of dwelling units per gross area of land to be developed.” Here, the owner was not putting a two-family house or a four-unit apartment building on the property, but was only proposing to build two one-family houses on each lot. It noted that the statute provided for an exception to the density variance requirement “as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are *** resulting from a minor subdivision.” Therefore, the lower court concluded only minor subdivision approval was needed to divide one lot into two undersized lots and that the approved subdivision would not create a density problem. Accordingly, it held that the application should have gone to the planning board, not the zoning board for approval of an undersized lot variance rather than a use or density variance. The zoning board appealed, contending that the lower court erred in determining that there was no density issue involved. The owner cross-appealed, alleging that the lower court erred in requiring her to make a new application before the planning board because the zoning board had sufficient ancillary authority to approve her application.

The Appellate Division affirmed the lower court on all accounts. It held that, pursuant to the applicable statute, each municipality has the power to define what constitutes a “minor subdivision” provided that the resulting subdivision did not involve any of the three exceptions set forth in the statute. The municipal ordinance defined “minor subdivision” as a “subdivision that does not involve the creation of more than four lots.” Therefore, the Court held that the owner’s application to create two lots was specifically permitted by ordinance as a minor subdivision and came within the purview of the planning board’s authority. It also concurred with the lower court that lots resulting from the planning board’s approval of a minor subdivision, irrespective of the size of the resulting lots, did not require a density variance based upon minimum lot size requirements in the zone. The Court stated that the applicable statutory language has been recognized as the “minor subdivision exception” to the density variance requirements. It rejected the zoning board’s position that the lots at issue had to exist prior to the minor subdivision application. Finally, it held that once the lower court declared the zoning board’s action a nullity, it properly determined that the owner was required to submit her application to the proper jurisdictional body, the planning board. Though it agreed with the owner that the zoning board would have supplemental jurisdiction in some cases – for density or use variance applications properly before the zoning board – here, no portion of the proceedings was properly before the zoning board.


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