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Hnatt v. Gant

A-1743-07T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; MERGER — A land use board is estopped from applying the principles of lot merger where the municipality had prior opportunities to invalidate transfers of undersized lots that were then being held in common ownership and where taxes have been separately assessed on the undersized lot or lots.

A neighbor to an undersized lot sued a municipality’s zoning board to set aside a variance it granted to allow construction of a single family residence on the undersized lot. Historically, the undersized lot shared common ownership with the neighbor’s lot twice, and for a period of five years, it was owned by the adjoining lot’s owner.

Under the doctrine of merger, contiguous, undersized or substandard lots that come into common legal title theoretically merge and therefore cannot be individually sold or developed without first obtaining subdivision approval. Despite this land use principle, the municipality never took any action to set aside any of the transfers as improper subdivisions. Additionally, at a point in time, the municipal zoning officer opined that the undersized lot could be developed without a variance. Prior to the board’s grant of variances, the board took expert testimony to the effect that the proposed dwelling was compatible with the existing neighborhood and to the municipality’s master plan, and that the proposal did not offend the surrounding area’s aesthetics and the lot was the same size as other lots previously developed.

The lower court affirmed the board’s decision, finding the board did not act arbitrarily, capriciously or unreasonably. Specifically, the court ruled the board was estopped from applying the principles of merger notably because the municipality had prior opportunities to invalidate transfers of the undersize lot when it was held in common ownership, and that taxes had been assessed in accordance with a separate and isolated undersized lot.

On appeal, the Appellate Division affirmed the lower court’s ruling. It held that it was undisputed that the undersized lot merged with an adjoining lot during a period of common ownership. Ordinarily, this would require subdivision approval. However, the Court held that the doctrine of equitable estoppel applied because there had never been any municipal action to force a merger.


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