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Klimack v. Berkeley Township Board of Adjustment

A-0541-07T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; SUBDIVISIONS; HARDSHIP —When a landowner’s predecessor unlawfully subdivides property, thereby creating a non-conforming condition, any resulting hardship can be considered to be self-imposed and not worthy of a hardship variance, even to a successor who was not aware of the unlawful subdivision.

A property owner sought a variance to build a single-family home on its lot. The variance was needed because the lot was not large enough for a single-family home and did not meet the frontage, front yard or side yard setback requirements. The property was adjacent to another lot and the two were at one time part of a single lot. A prior owner had subdivided the single lot. It first sold the larger lot upon a house was built. Years later, it sold the smaller lot to the applicant. The board denied the variance request, finding that the original owner never had permission to subdivide. The board also found that the prior owner’s decision to subdivide the property created the undersize lot and resulted in a self-created hardship. The successor, the applicant, assumed the hardship when he purchased the property.

In an action brought against the board by the applicant, the lower court affirmed the board’s findings and also concluded that the lot was not a single or separate piece of property according to statute. On appeal, the Appellate Division pointed out that decisions reached by municipal boards were only to be overturned if found to be arbitrary, capricious or unreasonable and that denials of variance requests were to receive greater deference that approvals. It added that when a landowner creates a nonconforming condition on a property, any resulting hardship can be considered to be self-imposed and not worthy of a hardship variance. The property owner’s argument that the board’s actions constituted a taking was found to be without sufficient merit to warrant discussion. The Court affirmed the board’s denial of the variance request, agreeing substantially with the determinations of the board and the lower court.

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