Skip to main content



Rabbani v. Ocean Township Zoning Board of Adjustment

A-7555-97T1 (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; VARIANCES—If a prior owner creates a hardship, and would therefore not be entitled to a variance, the impediment is not removed by a purchase by a buyer who did not participate in creating the problem.

A land owner’s predecessor acquired two adjoining lots and then purchased a third lot in order to prevent anyone from building there. That owner subsequently sold the adjoining lots to his child without subdivision approval, and retained the third (undersized) lot which was thereafter sold to the current property owner. Although the buyer knew that the lot was undersized, thus enabling it to purchase the lot at a bargain price, it was unclear whether it unconditionally was aware of the illegal subdivision. The buyer sought a hardship variance which was denied by the zoning board and sustained by the Law Division on the ground that the hardship was self-created. Essentially, “if a prior owner created the hardship, and would therefore not be entitled to a variance, the impediment is not removed by a purchase by a buyer who did not participate in creating the problem,” and the subsequent buyer cannot claim innocence when it “knew there was a problem and could have investigated it more fully.” The municipality subsequently amended its zoning ordinance, but the subject lot remained non-conforming. The buyer filed an application for a “flexible c” variance to relax the minimum lot size requirement and the minimum lot width requirement. The zoning board rejected the application, finding that the proposed variances would not advance the objectives of the Municipal Land Use Law and that “relaxation of the requirements of the ordinance would disrupt the housing pattern in the area and might cause storm water runoff damage to the neighboring properties.” This finding was appealed to the Law Division, which rejected the property owner’s arguments and also rejected the owner’s claim for inverse condemnation. The Appellate Division found that there was ample evidence before the zoning board to support its decision. It also felt that while property could be taken by government through regulatory measures that do not amount to a physical occupation, and that zoning regulations cannot “den[y] an owner economically viable use of his land,” where a property owner severs a lot and sells a non-conforming portion without the necessary subdivision approval, “the remaining portion is not zoned into idleness, but rather it is sold into idleness.” The buyer was not an innocent buyer. Instead of buying unconditionally, knowing that the lot required relief from zoning requirements, it could have insisted on a conditional contract.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com