GUNTHER JOCK, SHERRY OBERG, SANDRA BARRE et al. v. ZONING BOARD OF ADJUSTMENT TOWNSHIP OF WALL, et al.

This case can also be found at 371 N.J. Super. 547, 854 A.2d 928.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0142-02T30142-02T3

GUNTHER JOCK, SHERRY OBERG,

SANDRA BARRE and GEORGE

SOLLAMI,

Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF WALL, PAUL

AMATO, JOYCE AMATO and

SHIRE REALTY, INC.,

Defendants-Respondent,

and

TOWNSHIP COMMITTEE OF THE TOWNSHIP

OF WALL and TOWNSHIP OF WALL,

Defendants.

_______________________________________________

 

Argued December 12, 2005 - Decided March 23, 2006

Before Judges Alley, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-1962-01.

Walter R. Bliss, Jr. argued the cause for appellants.

Thomas J. Hirsch argued the cause for respondent Zoning Board of Adjustment of the Township of Wall.

Timothy B. Middleton argued the cause for respondents Paul Amato, Joyce Amato and Shire Realty, Inc.

PER CURIAM

Plaintiffs Gunther Jock, Sherry Oberg, Sandra Barre and George Sollami (plaintiffs) appealed from the final judgment entered in this action in lieu of prerogative writs. That judgment affirmed the approval, by the defendant Zoning Board of Adjustment (the board), of an application for variances filed by defendant Paul and Joyce Amato so that they might construct a single-family residence on a non-conforming lot (lot 27) they contracted to purchase from defendant Shire Realty. In granting the application, the board rejected plaintiffs' contention that lot 27 had merged with another lot (lot 26) or that the claimed hardship was self-imposed. In a written decision, Judge Patrick J. McGann, Jr. rejected plaintiffs' arguments and plaintiffs appealed.

When this appeal was first before us we reversed, concluding that a merger had occurred because the legal title holders of one of these non-conforming lots (J. Clarence and Ethel M. Allen) also held equitable or constructive ownership of the other for a considerable period of time, and that by contracting to simultaneously purchase both lots, defendant Paul Amato became the equitable title holder of both and could not manufacture a hardship by thereafter accepting legal title through separate juridical entities. Jock v. Zoning Bd. of Adjust., Wall Tp., 371 N.J. Super. 547 (App. Div. 2004).

The Supreme Court of New Jersey reversed that determination. The Court also remanded for our consideration of the issues that we had not previously reached in light of our disposition of the merger and hardship questions. Jock v. Zoning Bd. of Adjust., Wall Tp., 184 N.J. 562 (2005). Accordingly, we now consider the last four arguments previously raised by plaintiffs:

IV. AMATO/SHIRE DID NOT HAVE THE RIGHT TO RELY ON THE 1959 FIVE-FOOT SIDEYARD VARI-ANCE.

A. THE VARIANCE NEVER BECAME EFFECTIVE BECAUSE IT REQUIRED A FINAL APPROVAL BY THE 1959 PLANNING BOARD WHICH HAS NOT BEEN DEMONSTRATED.

B. THE 1959 SIDE-YARD "VARIANCE" IS ULTRA VIRES AND VOID AS AN ILLEGAL ZONING CONTRACT.

C. ANY SUCH SIDE-YARD VARIANCE EXPIRED WHEN NOT EXERCISED WITHIN A REASONABLE TIME.

D. ANY SUCH VARIANCE WAS EXTIN-GUISHED BY THE 1977 ORDINANCE.

E. ANY SUCH VARIANCE ALSO WAS EXTINGUISHED BY ABANDONMENT.

V. THE BOARD ERRED IN ITS ELEVENTH HOUR DECISION TO APPROVE APPLICANTS' PROPOSED SIDE-YARD SETBACKS ON THE MERITS.

A. THE PROPOSED SIDE-YARD SETBACKS DID NOT SATISFY THE POSITIVE CRI-TERIA.

B. THE PROPOSED SIDE-YARD SETBACKS DO NOT SATISFY THE NEGATIVE CRI-TERIA.

VI. THE BOARD ERRED IN GRANTING VARIANCES TO PERMIT THE CONSTRUCTION OF THE PROPOSED GARAGE IN THE FRONT YARD OF THE HOUSE AND AT A HEIGHT PROPOSED.

VII. THE BOARD'S APPROVAL OF VARIANCES TO BUILD THE APPLICANTS' PROPOSED HOUSE AND GARAGE ON THIS UNDERSIZED LOT WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

We affirm substantially for the reasons set forth in the thoughtful and comprehensive July 31, 2002 written decision of Judge Patrick J. McGann, Jr., adding only the following regarding a portion of the arguments raised by plaintiffs in Point IV.

Plaintiffs contend that the 1959 resolution that set the side yards for Lot 27 at five feet is void because the variance was abandoned through inactivity or nullified by the passage of a 1977 ordinance, and because it was the product of an unlawful exchange of rights between the Allens and the township. Judge McGann agreed with the board's rejection of all these arguments and, as for the contention that the variance was abandoned or nullified by the passage of the 1977 ordinance, stated:

There was clearly no abandonment of the 1959 variances in this case. The land simply sat there with them in place. There was no time limitation in the 1959 variance or in the 1955 ordinance. However, the plaintiffs argue that the variances were nullified by passage of the 1977 Zoning Ordinance.

The 1955 Ordinance (in effect when the lot 27 side yard variances were granted in 1959) contained a "grandfather" clause for lots rendered undersized by virtue of that ordinance. It stated:

Any plot existing as a separate parcel and not complying with the minimum area or widths of lot requirement in the schedule at the time of the passage of this ordinance, may, not-withstanding such fact, be improved with a building in accordance with other regulations of its residence zone provided the owner owns no adjacent land which may without undue hardship to him be included as part of the plot in question.

With that in mind, the Board of Adjustment in 1959, with the knowledge and support of the Planning Board and Township Committee, determined that for the 75 foot frontage of Lot 27, side yards of five feet were comparable to those of improved lots in the area (the residence on Lot 28 was 4.9 feet off the sideline) and not a detriment to the zoning ordinance or plan. Nothing has changed on Lots 26, 27 and 28 from then to present.

When enacted the 1977 Zoning Ordinance did not provide for a continuation of the "grandfather" clause. It did not and could not with impunity deprive Lot 27 of the side yard variances already in place. It did however speak prospectively with regard to any variances granted thereafter by stating

Any variance from the terms of this chapter hereinafter gran-ted by the Board of Adjustment permitting the erection of any structures, shall expire by limi-tation unless substantial con-struction shall have been actually commenced on each and every struc-ture permitted by the variance within three years from the date of entry of the determination of the Board of Adjustment.

Since there was no ordinance vitiating the 1959 variances, they did "run with the land["] and are available to the present owner, Shire Realty.

Judge McGann's analysis of these events is fully supported by the record and his application of the law was certainly correct. Unless expressly limited, it is well-accepted that, once granted, a variance "becomes attached to the land and is not a mere personal right, and a purchaser takes the land free from those zoning restrictions to which the variance pertains." The Stop & Shop Supermarket Co. v. Bd. of Adjust., Tp. of Springfield, 162 N.J. 418, 432 (2000). See also Spinnaker Condo. Corp. v. Zoning Bd., Sea Isle City, 357 N.J. Super. 105, 112 (App. Div.), certif. denied, 176 N.J. 280 (2003); Aldrich v. Schwartz, 258 N.J. Super. 300, 308 (App. Div. 1992); DeFelice v. Zoning Bd. of Adjust., Pt. Pleasant Bch., 216 N.J. Super. 377, 383 (App. Div. 1987); Farrell v. Estell Manor Zoning Bd. of Adjust., 193 N.J. Super. 554, 558 (Law Div. 1984).

It is true, as plaintiffs argue, that a variance may be abandoned, Stop & Shop, supra, 162 N.J. at 432; Industrial Lessors, Inc. v. City of Garfield, 119 N.J. Super. 181, 183 (App. Div. 1972), but our decisional law demonstrates that abandonment arises from "the intervention of a conforming use or other invalid non-conforming use for a sufficient period of time to justify a conclusion of abandonment of the former use," North Plainfield v. Perone, 54 N.J. Super. 1, 12-13 (App. Div.), certif. denied, 29 N.J. 507 (1959). There are no facts in the record that would support a finding that an abandonment has occurred in this manner and we are not inclined to accept plaintiffs' invitation to adopt a principle of law that, in circumstances such as those presented here, would require a finding of abandonment merely because actions were not taken in fulfillment of the variance for a considerable period of time.

Plaintiffs also contend that the 1959 variance represented consideration for the owner's transfer of a drainage easement to the township and that this type of "zoning by contract" is unlawful, citing V.F. Zahodiakin Corp. v. Bd. of Adjust., Summit, 8 N.J. 386, 394-95 (1952). In rejecting this argument, Judge McGann observed that the township "was very interested in obtaining the drainage easement" at the time, and that the owner of the property "had the right to ask for monetary compensation for the easement [but] [i]nstead . . . asked for the side yard variances on Lot 27." We agree with plaintiffs that these circumstances do not justify what occurred but only restate, and confirm, that the grant of the variance was based, at least in part, on the owner's providing a property interest to the township. However, we need not determine whether these circumstances demonstrate an invalid basis for granting the variance because the record also suggests that the board did apply valid standards in justifying the grant of the variances. As Judge McGann observed, the board "looked at the request; was satisfied that the variances would not be a detriment to the zoning ordinance (which rendered the lot legitimate and buildable) or the master plan, and would have a beneficial effect of creating a taxable asset on a buildable lot." The record on appeal contains some evidence of what occurred during these 1959 proceedings, and Judge McGann's finding in this regard is supported by the September 16, 1959 resolution.

We also agree with Judge McGann that even if what occurred should be viewed as "zoning by contract," the board's actions were only voidable, not void. See Bridge v. Zoning Bd. of Adjust., 233 N.J. Super. 587, 597 (App. Div. 1989). As a result, the attack on the 1959 variance was time-barred; in this regard, Judge McGann aptly stated:

The fact is that no one complained until the issue was raised by the adjoining objectors over 40 years after the actions. Under any stretching of limitations on legal actions by statute or court rule, 40 years is simply too late for a judicial attack or seeking to [set] aside what was done. If official actions are deemed improper by a citizen, an action must be promptly brought or the right to do so is lost.

We agree. Even if the board's actions in 1959 were ultra vires, they were ultra vires only in the secondary sense and, at best, rendered the resolution voidable, not void. Ibid. It was, thus, incumbent upon an aggrieved party to seek relief in a timely fashion. Once the time to commence an action in lieu of prerogative writs had elapsed, the property owner gained a vested right both in the variance so obtained and in repose from any future attack upon it.

 
Affirmed.

In an earlier appeal, we found an apparent conflict of interest when the application for a variance was first before the board. As a result, we vacated the board's resolution and remanded for further proceedings. Jock v. Shire Realty, Inc., 295 N.J. Super. 67 (App. Div. 1996), certif. denied, 148 N.J. 462 (1997).

We note that, at oral argument, plaintiffs attempted to raise, for the first time, a contention relating to the possibility of harm to certain trees if the board's actions were affirmed. Plaintiffs did not assert this argument by way of a separate point heading in their brief and we are, thus, not required to consider it. R. 2:6-2(a)(5); Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), app. dis., 152 N.J. 361, cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998). Although we may elect to dispose of the issue on its merits notwithstanding, State v. Mays, 321 N.J. Super. 619, 636-37 (App. Div.), certif. denied, 162 N.J. 132 (1999), we choose not to do so in light of the fact that we not only initially permitted plaintiffs to file a 122-page brief, but also permitted the filing of additional briefs in the wake of the Supreme Court's remand of this matter to us. Considering the extensive opportunity plaintiffs have had to properly present all their arguments, we decline to consider an issue that, despite all these opportunities, can at best be discerned only from a few random statements made in plaintiffs' original over-length brief.

(continued)

(continued)

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A-0142-02T3

March 23, 2006