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Jock v. Zoning Board of Adjustment of the Township of Wall

A-0142-02T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; VARIANCES; CONTRACT ZONING - - A variance grant is valid if it is independently appropriate, even if the municipality gets a benefit from the applicant in connection with the approval.

In 1959, a side yard variance was granted to a lot pursuant to a 1955 ordinance that contained a “grandfather” clause. The lot had been rendered undersized by virtue of that ordinance. The ordinance specifically provided: “[A]ny plot existing as a separate parcel and not complying with the minimum area or widths of lot requirement in the schedule at the time of the passage of this ordinance, may, not-withstanding such fact, be improved with a building in accordance with other regulations of its residence zone provided the owner owns no adjacent land which may without undue hardship to him be included as part of the plot in question.” With that in mind, in 1959, the variance was granted.

In 1977, another zoning ordinance was passed, but this one “did not provide for a continuation of the ‘grandfather’ clause.” According to the lower court, the 1977 ordinance “did not and could not with impunity survive [the subject lot] of the side yard variances already in place.” The 1977 zoning ordinance, in effect, canceled any variances granted by the zoning board if substantial construction did not actually begin within three years from the date that the zoning board entered the variance. The lower court, however, found that the 1977 ordinance did not vitiate the 1959 variances and, in fact, the 1959 variances ran with the land.

The Appellate Division agreed, pointing out that “nless expressly limited, it is well-accepted that, once granted, a variance ‘becomes attached to the land and is not a mere personal right, and a purchaser takes the land free from those zoning restrictions to which the variance pertains.’” Although a variance may be abandoned, “decisional law demonstrates that abandonment arises from ‘the intervention of a conforming use or other invalid non-conformance use for a sufficient period of time to justify a conclusion of abandonment of the former use.’” The Appellate Division found no facts on the record to support a finding of abandonment.

The context in which this matter arose was that a subsequent owner sought to build a house on this particular undersized lot and neighbors objected. One of their contentions was that the 1959 variance “represented consideration for the owner’s transfer of a drainage easement to the [municipality] and this type of ‘zoning by contract’ [was] unlawful.” The lower court rejected this argument and observed that the municipality had been very interested in obtaining a drainage easement and that the owner of the property had the right to ask for monetary compensation for such an easement. Instead, the owner asked for the side yard variances. The Court was concerned that the granting of a variance was based, “at least in part, on the owner’s providing a property interest to the [municipality].” However, the Court, after examining the record, concluded that the zoning board actually applied valid standards in justifying the grant of the variance. It cited, with favor, the lower court’s observations that the board, in 1959, “looked at the request; was satisfied that the variances would not be a detriment to the zoning ordinance (which rendered the lot legitimate and buildable) or the master plan, and would have a beneficial effect of creating a taxable asset on a building lot.” Further, the Court, agreeing with the lower court, held that “even if what occurred should be viewed as ‘zoning by contract,’ the board’s actions were only voidable, not void.” Consequently, any attack on the 1959 variance was time-barred. In the words of the lower court, “40 years is simply too late for a judicial attack or seeking to [set] aside what was done.” In the Court’s words: “Even if the board’s actions in 1959 were ultra vires, they were ultra vires only in the secondary sense and, at best, rendered the resolution voidable, not void.

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