REGINALD HOPKINSON, et al. v. BOARD OF ADJUSTMENT BOROUGH OF KINNELON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0201-05T30201-05T3

REGINALD HOPKINSON and ALICE

F. HOPKINSON, his wife, and

RANDALL CHARLES,

Plaintiffs-Respondents,

v.

BOARD OF ADJUSTMENT OF THE BOROUGH

OF KINNELON, KENNETH BALICK and

EVE BALICK, his wife,

Defendants-Appellants,

and

ANDREA KHOOBIAR,

Defendant.

_____________________________________________________________

 

Argued May 31, 2006 - Decided August 30, 2006

Before Judges Kestin, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-3171-04PW.

Reginald F. Hopkinson argued the cause for respondents (Jeffer, Hopkinson & Vogel, attorneys; Mr. Hopkinson, on the brief).

Gregory Mascera argued the cause for appellants (Bannon Rawding McDonald & Mascera, attorneys; Mr. Mascera, on the brief).

PER CURIAM

Defendants, Kenneth and Eve Balick, are the current owners of property in the Borough of Kinnelon, formerly designated as Lot 750 and Lot 573 on maps of the Smoke Rise Company of Kinnelon, Inc., filed with the Morris County Clerk's Office in 1954 and 1956, and thereafter designated as Lot 55, Block 26 and Lot 100, Block 26 on the tax map of the Borough. They appeal from an order of the Law Division, dated August 31, 2005, that reversed a resolution of the defendant, Board of Adjustment of the Borough of Kinnelon (the Board), which determined that the two lots owned by the Balicks had not merged as a matter of law. We now reverse the order of the Law Division and reinstate the resolution of the Board.

The essential facts are not disputed. Defendant, Andrea Khoobiar, and her late husband, Sargis Khoobiar, purchased two undeveloped parcels of real estate from the Smoke Rise Company of Kinnelon, Inc. in 1972. The conveyance of the property to the Khoobiars was by a single deed dated July 3, 1972, to which an addendum was attached to identify the property conveyed -- Lot 750 on Map 1522 and Lot 573 on Map 1697. The property consisted of approximately 4.68 acres, and the two parcels are in a "back-to-back" configuration, each fronting on a different street.

The parcel formerly designated as Lot 750 fronts on Ridge Road (the Ridge Road parcel). That parcel is also known and designated as Lot 55 in Block 26 on the Tax Map of the Borough. It has an overall area of 98,124 square feet.

The other parcel, formerly known as Lot 573, fronts on Green Hill Road (the Green Hill Road parcel). It is depicted as Lot 100 in Block 26 on the Tax Map. The Green Hill Road parcel has an overall area of 106,543 square feet. This parcel was never developed or inhabited.

In June 1973, Sargis Khoobiar applied for and was issued a permit to build his home. Khoobiar did not seek and was not informed he needed a variance. Lot 55 has 152.83 feet of frontage where 200 feet are required within the zone. In addition, the net areas of the two lots are less than the 60,000 square feet of net lot area required for the zone. Nevertheless, the building permit was issued to the Khoobiars for Lot 55 and construction of a single family home on Lot 55, Block 26, was thereby authorized. The single family home was built entirely on the Ridge Road parcel. The survey map attached to the permit depicted Lot 55, Block 26 as a separate and distinct parcel from Lot 100, Block 26.

The tax bills for the latter half of 1972 and the first half of 1973 reflect the change of ownership from the Smoke Rise Company of Kinnelon, Inc. to Sargis Khoobiar, and the tax bills issued after the conveyance and to the present have described the property as "one single 4.68 acre Lot 55." Consistent with that description in the tax records, in the 1980s the site on the Official Tax Map of the Borough was shown as one single 4.68 acre Lot 55, in Block 26.

In 1985, the Khoobiars considered a development opportunity on the property calling for the annexation of a small portion of the Ridge Road parcel to the Green Hill Road parcel and then the creation of two new parcels out of the slightly expanded area of the vacant Green Hill Road parcel. Sargis Khoobiar filed with the Planning Board a request to subdivide the overall property into three lots. The legal public notice advertisement placed in the official newspaper by the Planning Board Secretary in the summer of 1985, stated that the purpose of the Khoobiar subdivision application was to create three residential lots out of two existing lots. Consistent with that stated purpose, the Kinnelon Planning Board Engineer at the time, prepared a report on the project dated July 29, 1985, in anticipation of the hearing on the subdivision application. That report described the Khoobiar proposal as an application "to subdivide Lot 100 on Green Hill Road into two building lots." Lot 100 was described as a separate and distinct lot from Lot 55 in 1985.

On the other hand, at the Kinnelon Planning Board hearing on August 8, 1985, the Board identified Khoobiar's proposed subdivision as dividing one 4.68 acre lot known as Lot 55 in Block 26 into three lots, rather than dividing two existing lots into three lots. In the resolution to carry the application to the regular meeting of the Planning Board to be held September 12, 1985, the application was ambiguously described as an "application of Sargis Khoobiar for classification of proposed 3 lots out of Lot 55, Block 26." Khoobiar withdrew that application for development prior to the Board's decision.

In March 2004, Andrea Khoobiar filed an application with the Planning Board for a subdivision of the property. She requested, however, that the Planning Board hold her application in abeyance while she sought certification from the zoning official that her two lots had never merged. In a letter dated May 4, 2004, the zoning official rendered his opinion "that the property areas in question are two (2) separate parcels of property belonging to common carrier."

Plaintiffs, Reginald and Alice Hopkinson and Randall Charles, objected to that decision by the zoning official and appealed the zoning official's determination to the Board, which after conducting public hearings, affirmed the zoning official's determination. In its resolution memorializing its decision that no merger had occurred, the Board stated that:

Sufficient documentation of record over the years established the separate existence of Lot 55 [formerly Lot 750] as a lot independent from Lot 100 [formerly Lot 573]. These documents included the original Building Permit application, . . . the original septic system application, the ad published by the Kinnelon Planning Board in 1985 which referred to two separate lots, and the report of the Borough Engineer on the 1985 subdivision application, which also referred to two lots.

Plaintiffs then filed their complaint in lieu of prerogative writs in the Law Division, where the judge first determined that the entire matter would be considered de novo since it involved only a matter of law. Then, the judge, heavily influenced by the treatment of the property by the tax department and by the view that the combined properties conformed to the zoning ordinance, ruled that the two lots had merged as a matter of law.

On appeal, defendants argue that (1) the trial court should not have considered the matter de novo; (2) a determination that the lots merged is not supported by the trial court's finding of facts; and (3) the doctrine of merger is inapplicable to the lots. We agree with defendants' second assertion of error and reverse the trial court's order as a matter of law. The lots in question will not be deemed to have merged.

We are satisfied the court properly determined that the issue involved a matter of law, warranting a de novo standard of review. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). "[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). In Jock v. Zoning Bd. of Adjustment, Wall Twp., 371 N.J. Super. 547, 554 (App. Div. 2004), rev'd on other grounds, 184 N.J. 562 (2005), this court determined that a de novo standard of review is appropriate where "all the information before both the board of adjustment and the trial judge . . . was contained in documents moved into evidence and . . . deposition testimony[.]" Here, the court had before it a purely legal issue -- whether or not, based on the records submitted by both parties and the legal conclusions to be drawn from them, the property in question has merged. We are convinced that the court decided that issue incorrectly.

Ordinarily, "a Loechner [v. Campoli, 49 N.J. 504 (1967)] merger takes place as a matter of law where adjacent substandard lots come into common legal title." Jock v. Zoning Bd. of Adjustment, Wall Twp., 184 N.J. 562, 581. Merger is defined as "the combination of two or more contiguous lots of substandard size, that are held in common ownership, in order to meet the requirements of a particular zoning regulation." Id. at 578 (citing Robert M. Anderson, 2 American Law of Zoning 9.67 (4th ed. 2005)); see generally Cox, New Jersey Zoning and Land Use Administration, ch. 16-15.1, -15.2, 416-21 (2005). "Merger is said to be 'theoretical' in the sense that it does not preclude the treatment of the lots as separate for other purposes. The official map is not affected; neither are taxes . . . or financial arrangements altered[.]" Jock, supra, 184 N.J. at 579 (internal citations omitted).

Conversely, the treatment or characterization of property for tax purposes or in other contexts is not dispositive of issues relating to merger for zoning purposes. Treatment on a tax map or a tax bill may be relevant considerations, but undue emphasis should not be placed on characterizations in those contexts in deciding whether parcels in common ownership have merged by operation of law.

The merger doctrine has numerous recognized exceptions to its application. One exception to merger of adjacent lands in common legal title exists where the land conforms to all the zoning regulations and is "shown and designated as separate lots, tracts or parcels on the tax map or atlas of the municipality." Id. at 582 (quoting N.J.S.A. 40:55D-7; Scardigli v. Borough of Haddonfield Zoning Bd. of Adjustment, 300 N.J. Super. 314, 320-21 (App. Div. 1997)). "Likewise, [merger] does not apply where a party who owns a non-conforming lot acquires a contiguous lot that fronts on a different street (back-to-back lots) and merger would not create a conforming lot." Ibid. (citing Chirichello v. Zoning Bd. of Adjustment of Monmouth Beach, 78 N.J. 544, 554 n.2 (1979) (citing 2 Rathkopf, The Law of Zoning and Planning, 32.06(2) (4th ed. 1978) (stating "general rule that adjoining parcels in one ownership merge so as to constitute only one lot [is not applicable where back to back or "L" shaped lots are involved], since it would require a strained finding that these two lots were intended to form one exceptionally long, narrow plot and would be in total disregard of the fact that each fronts on a different street")); but see Somol v. Bd. of Adjustment of Borough of Morris Plains, 277 N.J. Super. 220, 230 (App. Div. 1994) (stating Chirichello exception to merger doctrine for back-to-back lots does not apply if merger would create a conforming lot). The Court in Jock, supra, reasoned that since "the purpose of the merger doctrine is to bring non-conforming lots into conformity and thus advance the zoning scheme, those exceptions for cases where the property is already conforming or where it cannot be rendered conforming make sense." Jock, supra, 184 N.J. at 582.

Critical to any merger issue is an examination of the pertinent facts on a "case-by-case basis." Simeone v. Zoning Bd. of Adjustment, East Hanover Twp., 377 N.J. Super. 417, 425 (App. Div. 2005). The facts of this case, which are not in dispute, demonstrate that merger does not further the purposes of the doctrine since it will not cause the property to meet the zoning laws. The Ridge Road parcel has, as it did in 1972, 158 feet of frontage and the Kinnelon zoning code currently requires 200 feet. The merger of the two lots therefore could not conform the Ridge Road parcel nor reduce its non-conformity since road frontage cannot be added in a back-to-back situation.

As the trial judge observed, it is not known how the building permit to Sargis Khoobiar was issued in 1972 for the construction of the home on the Ridge Road parcel without a variance when the frontage was plainly deficient. At plaintiffs' behest, however, the trial court found that the absence of a variance demonstrated that the building inspector found the combined lots conformed to the zoning requirements. It reached that conclusion by defining the Ridge Road parcel as a rear lot and by assuming the building permit was issued under Section 90-4 of the Kinnelon zoning ordinance. The trial court stated:

[W]hat the Court finds is that once the house was being constructed, this property by the Khoobiars was being treated as one lot because the building permit refers to lot 55, 26 and then shows the two lots in their entirety. To accept otherwise . . . would have the Court find that there was a nonconformance that the zoning officer simply overlooked. . . . [If] you were to find that there wasn't a nonconformance under the zoning ordinance . . . it can be treated as a rear lot. . . . The survey showed two lots. The building permit is issued without variance in that regard. So . . . the reasonable inference to be drawn is that the building permit was issued properly. It was issued pursuant to the rear lot ordinance. And then the house was built.

We do not agree that such an inference is more reasonable than the possibility of an oversight, which the court rejected.

Moreover, satisfaction of the requirements for development of a rear lot are not obvious. The ordinance requires that a rear lot be created by subdivision; that there be an access strip; and that the rear lot have a minimum area of three acres. The relevant portion of the Municipal Code states:

Lot, Rear or Back -- A lot without required road frontage. In order to be created by subdivision, it must:

(1) Enclose a minimum area of three acres.

(2) Have a minimum average width of 300 feet and depth of 300 feet.

(3) Have a 50 foot wide access strip to an approved, improved road.

Neither parcel meets these three criteria. The municipal records do not evidence any subdivision of the two parcels in 1972. The parcels were preexisting and distinct. Also, there is no evidence of an access strip or that the putative rear lot area is at least three acres. At best, the rear lot argument is speculative and strained. More realistically, it is inapplicable. In essence, as defendants point out, if lot 55 is recognized as a rear lot, there would be a rear lot without a front lot. Moreover, if there had been a subdivision creating a rear lot, a Loechner merger would not occur because such mergers do not apply to parcels created by subdivision. Jock, supra, 184 N.J. at 583. In the end, we agree with defendants that "[i]t is far more plausible that the building permit was issued to Khoobiar with the deficient road frontage as an oversight than that a rear lot was created without the necessary subdivision."

We find it unnecessary to address defendant's alternative argument for reversal based on the filing dates of the maps under the Old Map Act prior to the creation of the local planning board.

The August 31, 2005 order of the Law Division is reversed. The determination of the Board of Adjustment of the Borough of Kinnelon, approved October 5, 2004, is reinstated.

 

An order dismissing defendant Andrea Khoobiar from the action was entered on April 18, 2005. She did not participate thereafter in proceedings in the Law Division and has not participated in this appeal.

(continued)

(continued)

13

A-0201-05T3

 

August 30, 2006