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Newmark v. Board of Adjustment of the Township of Mendham

A-1617-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; SUBDIVISIONS — Under New Jersey law, except pursuant to an agreement expressly conditioned on final subdivision approval, a property owner who transfers or sells or agrees to transfer or sell property without first obtaining proper subdivision approval faces a financial penalty, but there is a two year statute of limitations for the imposition of that penalty.

A landowner in a residential zone applied for bulk variances to build a house. The zoning board granted the requested variances. A neighbor objected to the application on the ground that the applicant also owned an additional lot which allegedly merged when a predecessor in title had acquired title to the two lots. Thus, the neighbor argued that the variances could not be granted until the merged property was properly subdivided by a planning board. The approved application included a plan drafted by an architect who was a current member of that zoning board. In the neighbor’s suit, it was alleged that the zoning board’s decision was arbitrary, capricious, and unreasonable, and that submission of the plans prepared by the architect constituted a conflict of interest. The lower court rejected the neighbor’s suit, finding that the lots had not merged because they fronted on different streets.

In the appeal that followed, the Appellate Division acknowledged that there was a judicial exception to the merger doctrine for adjoining lots fronting on different streets, even under common ownership. However, it also noted the existence of more recent rulings holding that a merger takes place, as a matter of law, where adjacent, substandard lots come into common legal title. In this case, both lots were substandard and contiguous. So, the Appellate Division held that a merger had taken place when both were held under common legal title. Thus, a subdivision approval was necessary before the variance application could be considered.

After this decision, the landowner sold one of the lots to another party. The neighbor filed a motion to enforce litigant’s rights under Rule 1:10-3. The lower court ruled that because neither the neighbor nor the municipality had pursued any of the available remedies under the MLUL within the proscribed two-year time limit, there was no basis, as a matter of law, to impose a penalty against the landowner arising out of the illegal conveyance.

On appeal, the neighbor raised several points, all which the Appellate Division rejected. The Court affirmed the lower court’s judgment. Under New Jersey law, except pursuant to an agreement expressly conditioned on final subdivision approval, an individual who transfers or sells or agrees to transfer or sell without first obtaining the proper subdivision approval, faces a potential penalty of up to $1,000. The violator is also subject to a cause of action by the municipality to obtain injunctive relief. In the present case, the landowner had violated the statute, but now that the two year time frame set forth in the statute had passed, the landowner was no longer subject to this liability. Neither the neighbor nor the municipality pursued any of the available remedies under the statute within the two year time limit. Therefore the Court could not impose a penalty against the landowner. Moreover, the neighbor had no separate cause of action against the municipality. It was not a party to the proceedings before the lower court, and even if it were, such action would have been subject to dismissal pursuant to N.J.S.A. 59:2-4, a statute that immunizes a public entity for any injury caused by its failure to enforce any law. Therefore, the lower court properly denied relief to the neighbor. The Appellate Division affirmed and remanded for the entry and recording of an order enjoining further development of the lot retained by the landowner, pursuant to the Court’s prior rulings.

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