KATHERINE NEWMARK v. BOARD OF ADJUSTMENT TOWNSHIP OF MENDHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4857-05T14857-05T1

KATHERINE NEWMARK,

Plaintiff-Appellant/

Cross-Respondent,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF MENDHAM,

Defendant-Respondent/

Cross-Appellant,

and

ROGER HANLEY, ERIN HANLEY,

THOMAS HANLEY and GAYLE HANLEY,

Defendants.

________________________________________________________________

 

Argued May 9, 2007 - Decided

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

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2984-05.

Lawrence B. Litwin argued the cause for appellant/cross-respondent.

John M. Mills, III, argued the cause for respondent/cross-appellant (Mills & Mills, attorneys; Mr. Mills, of counsel and on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff Katherine Newmark appeals from paragraph one of an order entered on April 17, 2006 granting defendants' cross-motion on Count One of the complaint, declaring that the lots at issue have not merged. Defendant Mendham Township Board of Adjustment (Zoning Board) cross-appeals from paragraph two of the same order granting plaintiff's motion to set aside its resolution based upon the fact that the applicant's architect was a member of the Zoning Board, thereby creating an appearance of impropriety.

The facts relevant to this appeal are as follows. Plaintiff owns property in Mendham Township designated as Lot 12, Block 126 on the tax map. Her property adjoins Lot 11, Block 126, owned by Roger, Erin and Thomas Hanley (the Hanleys). Lot 11 adjoins Lot 16, Block 126, also owned by the Hanleys. Plaintiff's and the Hanleys' lots are all located in an R-3 residential zone, requiring a minimum of three acres and all are undersized.

In January 2005, the Hanleys submitted an application for bulk variances to build a 3,554 square foot house on Lot 11, Block 126, which consists of .791 acres. Hanleys' Lot 16 is a corner lot consisting of 1.5 acres on which a 2,674 square foot home currently exists. Plaintiff's property consists of 1.5 acres on which a 2,542 square foot home currently exists. Lot 16 is a corner lot, which fronts on Washington Valley Road and a private right-of-way known as Martins Lane. Lot 11 also fronts on Martins Lane, as does plaintiff's Lot 12. In other words, the three lots sit side-by-side on Martins Lane, with Lot 16 occupying the corner of Martins Lane and Washington Valley Road.

After hearings on the Hanleys' application, the Zoning Board granted the requested variances and approved a 2,986 square foot house, plus a 550 square foot garage.

Plaintiff objected to the Hanleys' application on the ground that the Hanleys' two lots merged by virtue of the chain of title pursuant to Loechner v. Campoli, 49 N.J. 504 (1967). Plaintiff alleged that title to Lot 16, Block 126 was conveyed from Peter G. and Edwina S. Vosburgh to Richard and Carol Hall by deed dated February 18, 1983. The Halls conveyed title to Lot 16 to Gayle Hanley by deed dated June 7, 2000.

Lot 11, Block 126 was conveyed from Margaret F. Lamb to Carol D. Hall by deed dated December 22, 1992. Hall then conveyed Lot 11 to Gayle Hanley on June 7, 2000. Gayle Hanley conveyed Lot 11 to the Hanleys on July 24, 2000. Nevertheless, plaintiff maintains that when Gayle Hanley acquired title to both Lots 11 and 16 - for however brief a period of time - the ownership merged based upon the Loechner doctrine. Plaintiff contends that because the lots had merged, the variances could not be granted by the Zoning Board until the property was subdivided and that subdivisions can only be addressed by planning boards.

When the Hanleys submitted the application to the Zoning Board, it included plans for the proposed house on Lot 11. The architect who prepared the plans was a current member of the Zoning Board. In her complaint in lieu of prerogative writs, plaintiff sought to have the Zoning Board's proceedings and resolution declared null and void on the grounds that (1) the Zoning Board's decision was arbitrary, capricious, and unreasonable; and (2) the submission of plans prepared by the architect/member of the Zoning Board resulted in a conflict of interest.

After hearing the matter, the trial court determined that "there was unity of title, albeit . . . for a very short period of time." The court noted, however, that Gayle Hanley's Lot 16, on which a house is already built, is a corner lot fronting on both Martins Lane and Washington Valley Road. Relying on Chirichello v. Zoning Bd. of Adj., 78 N.J. 544 (1979), the court found that the lots had not merged because they fronted on different streets.

In this appeal, plaintiff argues that (1) the Zoning Board's decision was arbitrary, capricious and unreasonable because a subdivision was required before the Board could consider the variance application; and (2) Lots 11 and 16, owned by the Hanleys, merged, requiring a subdivision from the Planning Board.

The doctrine of merger was articulated by the Supreme Court in Loechner, wherein the Court addressed "[t]he pivotal question [of] whether the sale of two contiguous lots out of a group of five lots, all in one ownership . . . is a subdivision and whether Planning Board consent to the said conveyance of the two lots is required." 49 N.J. at 508. There, plaintiff owned five contiguous lots, each having about twenty-five foot frontage. Id. at 507. Plaintiff contracted to sell the two end lots to a purchaser who, prior to the conveyance, made an application to the Zoning Board for a variance to build a house on the two lots. Ibid. The minimum frontage at the time was 100 feet. Ibid. The purchaser did not disclose to the Zoning Board that the two lots he wished to purchase adjoined three other lots all in the same ownership. Ibid. The Zoning Board granted the variance but the building permit was refused on the ground that a subdivision was required first. Ibid. When the purchaser applied to the Planning Board, the subdivision approval was denied "for the reason that if such were granted, an undersized building lot would be created in violation of the zoning ordinance." Ibid. The Supreme Court held that a subdivision was required to separate the two lots from the remaining lots owned by the plaintiff. Id. at 512. Consistent with the existing statutes at the time of its 1967 decision, the Supreme Court established a procedure whereby plaintiff must first apply to the Planning Board for the subdivision and, "[i]f the Planning Board finds that the application meets all of the required tests except for lot size or dimensions, it should approve such subdivision subject to approval of a variance by the Zoning Board of Adjustment." Ibid.

After Loechner was decided, the Legislature adopted N.J.S.A. 40:55D-76, which granted zoning boards

the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approval pursuant to [A]rticle 6 of this [A]ct . . . whenever the proposed development requires approval by the [B]oard of [A]djustment of a variance pursuant to subsection d. of section 57 of this Act [N.J.S.A. 40:55D-70].

In Chirichello, the Supreme Court created an exception to the Loechner doctrine when it determined that adjoining lots fronting on different streets did not merge, even though the lots were under common ownership. 78 N.J. at 553. In that case, the Chirichellos purchased Lot 8 on Block 31K on Wesley Street in Monmouth Beach. Id. at 548-49. Shortly thereafter, the Chirichellos purchased Lots 10 and 11 in Block 31K, fronting on Spaulding Place. Id. at 549. Lot 10 is adjacent to the rear of Lot 8, which fronts on Wesley Street. Ibid. The three lots formed an "L" configuration with Lots 10 and 11 fronting on Spaulding Place and Lot 8 fronting on Wesley Street. Lot 9, owned by George West, occupied the corner, fronting on Wesley and Spaulding and was adjacent to Lots 8 and 10. Plaintiff sought variances to build a house on Lot 8, which had 53.6 feet frontage in a zone requiring a minimum of 75 feet. Ibid. Plaintiff's proposed house met all of the zoning requirements except for the frontage and the total square footage of the lot. The zone required a minimum of 9,000 square feet and Lot 8 consisted of 6,400 square feet. Ibid.

The Supreme Court determined that "no . . . merger occurred, for the acquisition of Lots 10 and 11, Lot 10 being located immediately to the rear of Lot 8, did not for all purposes of the zoning ordinance create one tract." Id. at 553. The Court determined that plaintiff was not required to obtain subdivision approval to develop Lot 8, but remanded the matter to the Zoning Board to develop the record as to whether plaintiff was eligible for a hardship variance. Id. at 561.

More recently, in Jock v. Zoning Bd. of Adj., 184 N.J. 562 (2005), the Court explained that "a Loechner merger takes place as a matter of law where adjacent substandard lots come into common legal title." Id. at 581. Here, the trial court found that because Lot 16 fronts on both Washington Valley Road and Martins Lane, it did not merge with Lot 11, which fronts only on Martins Lane, when both lots were purchased by Gayle Hanley. We disagree.

The Hanleys' lots are clearly contiguous to each other without any intervening properties. In Chirichello, Lot 8 fronted solely on Wesley Street, while Lots 10 and 11 fronted solely on Spaulding Place. Lot 9, the intervening corner lot, fronting on both streets, rendered Lot 8 distinct from Lots 10 and 11. Here, Lots 11 and 16 have a contiguous side yard border. The house on Lot 16 fronts on Washington Valley Road but its driveway fronts on Martins Lane. Since both Lots 11 and 16 are substandard, they merged under Loechner when they came into common legal title. Jock, supra, 184 N.J. at 581. The Hanleys, therefore, are required to obtain subdivision approval before the variance application can be considered.

Although plaintiff claims that the Hanleys must make their subdivision application to the Planning Board, N.J.S.A. 40:55D-76 allows the Zoning Board to consider and grant a subdivision when the application also requires a variance. Accordingly, we reverse paragraph one of the order entered on April 17, 2006.

In its cross-appeal, defendant argues that the trial court erred in finding that the Zoning Board proceedings were tainted as a result of the architect/board member having prepared the plans submitted by the Hanleys in their application for the variances. On that issue, the trial court found that the architect "did not testify . . . . did not attend the hearings . . . [a]nd he did not vote." In considering the applicants' argument that, even if it was a conflict of interest, it was harmless error, the trial court stated:

Unfortunately, there's no such thing as harmless error where there's the appearance of impropriety . . . .

Our cases tell us that you really cannot do that. And the reason is the taint is there. And as [plaintiff] correctly points out, you're opening a very difficult door here if you start saying that board members can participate in hearings in an application before the board that they're a member of and representing an applicant either as an architect or as an engineer, and you start splitting hairs by simply saying[,] well[,] as long as he doesn't testify[,] and as long as he doesn't vote[,] he can represent. And I don't think that . . . is what the law . . . intended.

The idea is that you're not to have any connection with it under the [L]ocal [G]overnment [E]thics [L]aw.

We agree.

The Zoning Board argues that the MLUL provision, N.J.S.A. 40:55D-69, applies. That statute provides that "[n]o member of the Board of Adjustment shall be permitted to act on any matter in which he [or she] has, either directly or indirectly, any personal or financial interest." The Board maintains that the architect/member's recusal from participation in consideration of the application is sufficient.

N.J.S.A. 40:55D-69 does not apply to this situation; rather, it applies to situations where, for example, teacher/board members were disqualified from hearing a variance application for property owned by the Board of Education, their employer. Sokolinski v. Municipal Council, 192 N.J. Super. 101, 103 (App. Div. 1983). In other words, the teacher/board members could benefit financially, directly or indirectly, from the board's action on the application. Id. at 104-05. The teachers, however, did not prepare the application presented by the applicant. Ibid.

In our view, the New Jersey Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to - 22.25, applies to this situation. N.J.S.A. 40A:9-22.5(h) prohibits a "local government officer, employee, or business organization in which [the officer or employer] has an interest," from representing any party in connection with any cause, proceeding, application or other matter pending before any agency in the local government. "Because boards of adjustment and planning boards are quasi-judicial bodies, their judgments must be free from the taint of self-interest." William Cox, N.J. Zoning and Land Use Admin., ch. 3-1.1 at 43 (2007).

Here, the mere recusal of the architect from participating in the Board's consideration of Hanleys' application is not sufficient to remove the appearance of impropriety. A professional - for example, an architect, engineer or attorney, who is a member of a zoning or planning board - may not prepare plans or any part of an application or submit correspondence to be presented to the board on which the professional sits. Accordingly, we affirm paragraph two of the order entered on April 17, 2006.

To summarize our decision, (1) Lots 11 and 16 merged when they came into Gayle Hanley's common ownership. That merger of ownership requires the Hanleys to make a subdivision application before variances may be considered. (2) The architectural plans prepared by the architect/Board member may not be presented to the Zoning Board for consideration on the variance application. Consequently, if the Hanleys wish to pursue their application, they must submit plans prepared by a different architect who is not a member of the Zoning Board and apply for a subdivision as a prerequisite to the variance applications.

Affirmed in part and reversed in part. We do not retain jurisdiction.

 

L. 175, c. 291, 63, (eff. August 1, 1976).

Article 6 of the Municipal Land Use Act (MLUA), N.J.S.A. 40:55D-37 to -58, sets forth the requirements for subdivision and site plan review and approval.

(continued)

(continued)

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A-4857-05T1

July 19, 2007