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Simeone v. Zoning Board of Adjustment of the Township of East Hanover

377 N.J. Super. 417, 873 A.2d 571 (App. Div. 2005)

ZONING; HARDSHIP—Where an applicant had subdivided a lot forty years earlier and the two lots had been taxed separately and treated a separate lots ever since, the existence of the isolated undersized lot that resulted was not a self-created hardship that would bar relief in the nature of a variance.

A municipal zoning board denied an applicant a variance to build a single family home based on a finding that any hardship created by obeying the zoning laws was self-created and the benefit of bypassing the zoning laws did not substantially outweigh any detriment to the established neighborhood zoning. The applicant sued to obtain the variance.

The Board denied the application because the applicant failed to show that the house he planned to build would not be considerably out of character with zone requirements and existing neighborhood houses. The Appellate Division held that a zoning board’s denial of a variance can be thrown out only when the denial was capricious, arbitrary, or unreasonable.

The lot in question “was created by dividing the original 200 x 150 foot lot ... into two lots. ... This division of the original lot into two lots was a subdivision.” The Appellate Division held that “[m]easured by current principles governing subdivision of property, the subdivision would be considered illegal.” This subdivision existed for nearly forty years and there was “long-standing municipal action treating the parcel as a separate lot”—that is, the municipality had assessed the lot as a separate lot for tax purposes since its creation, and the owners paid taxes on the lot through the years. The Court therefore agreed with the lower court that “under these circumstances the existence of [the] isolated undersized lot was not a self-created hardship for [the applicant] which would bar relief in the nature of a variance.” The Court nevertheless upheld the Board’s denial of the application since it found nothing capricious, arbitrary or unreasonable about the Board’s decision.

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