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Hoff v. Union Beach Planning Board

A-2469-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; SUBDIVISION—It is a mistake for a tax assessor to divide a tax parcel into multiple parcels when no subdivision has been legally created under the Municipal Land Use Law, and a land use board can deny a variance on that basis.

At one time, a piece of property consisted of four 20 by 100 foot lots. Seventy years earlier, two of the lots were owned by one family. When taxes went unpaid, the municipality purchased the tax sales certificate and assigned the tax sale certificate to the owner of the other two lots. That owner paid taxes on those lots until 1956, at which time it assigned the tax sale certificate and conveyed title to the two lots that it itself owned to another party. No foreclosure proceeding had been initiated. About five years later, the tax map was redrawn and all four lots were renumbered as a single lot. Still, no foreclosure proceeding were initiated. In 1995, the then owner attempted to sell the entire property. By reason of the defect in title, it sold two of the lots to a buyer in one transaction and transferred its interest in the lots governed by the tax sale certificates to the same buyer in a separate transaction, without applying for or obtaining a subdivision approval. That same year, the new buyer conveyed the two title-impaired lots to yet another buyer and, the following year, the tax assessor divided the single tax lot into two separate tax lots. Then, in April of 1998, the interest in the two tax sale lots was conveyed to a developer. That developer, as contract purchaser, filed an application with the municipal planning board for a bulk variance to build a single family house on the undersized lot. While the application was pending, the then property owner obtained a judgment to quiet title and conveyed the lot to the developer.

The planning board denied the application, finding that the failure of the prior owners to perfect their claim to the tax sale lots was due to a misunderstanding, and that use of all four parcels of land “as a conforming entity for over fifty years justified consolidation of the lots. Furthermore, by virtue of a local ordinance the four lots merged, and the 1995 subdivision was illegal.” The developer appealed to the Law Division, but the lower court affirmed the denial of the bulk variance. Its view was that the lot created for the two parcels of land covered by the tax sale certificates “was not legally created by subdivision approval pursuant to the Municipal Land Use Law ..., and [did] not exist as a lot as a matter of law.” The developer did not appeal that ruling. While the matter was before the Law Division, the municipality commenced an action to vacate the series of conveyances, but “relief was denied because the complaint had been filed beyond the statutory two-year statute of limitations.”

The developer filed another application for a bulk variance, but it was again denied, this time because the planning board found the application to be barred by res judicata as having been substantially similar to the relief requested earlier. The matter returned to the Law Division, but although the lower court found that the developer’s new application was sufficiently different from its previous application, it also found that “the underlying issue of the legality of the lot had not changed.” It ruled that the first court’s original opinion that the subdivision was illegal was not merely dicta, but was a substantive finding for which no appeal was filed. The developer’s contention “that the quiet title action and the dismissal of the action initiated by the Borough to set aside the series of conveyances [were] changed circumstances which warrant[ed] reexamination of the [earlier] order was rejected.” According to the Appellate Division, this did not constitute changed circumstances because the municipality’s complaint had been dismissed as time-barred.

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