SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4686-95T1
DENNIS M. SCARDIGLI, M.D.,
Plaintiff-Appellant,
-v-
BOROUGH OF HADDONFIELD ZONING
BOARD OF ADJUSTMENT; VIRGINIA
CUMMINS; NASHAT R. KALLEENY and
CLAIRE A. KALLEENY,
Defendants-Respondents.
-------------------------------
Argued: February 26, 1997 - Decided: April 30, 1997
Before Judges Baime and P.G. Levy.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Donald P. Craig argued the cause for
appellant.
Daniel J. DiStasi argued the cause for
respondent Borough of Haddonfield Zoning Board
of Adjustment (Green, Lundgren & Ryan, P.C.,
attorneys; William L. Lundgren, III, on the
brief).
Peter M. Rhodes argued the cause for
respondents Virginia Cummins, Nashat R.
Kalleeny and Claire A. Kalleeny (Cahill,
Wilinski and Cahill, attorneys; Mr. Rhodes, of
counsel; Douglas M. Hoyce, on the brief).
P.G. LEVY, J.A.D.
When the board of adjustment granted certain bulk
variances to the contract purchasers of an undersized lot within
200 feet of plaintiff's residence, permitting construction of a
house on that lot, plaintiff brought an action in lieu of
prerogative writs in the Law Division. The judge ruled for the
defendants (the lot owner, the owner's contract purchaser and the
board) and plaintiff appeals. We affirm.
Virginia Cummins is the owner of Lot 8, the property for
which the variances were sought. Applicants Nashat and Claire
Kalleeny are the prospective purchasers of Lot 8, contingent upon
the granting of bulk variances for lot area and lot depth. The
property's history is as follows: In 1977, the owner of Lot 6,
Kelly, purchased Lot 8 from Davidson, owner of Lot 2. Kelly
constructed a tennis court on Lot 8, which slightly extended over
the property line separating Lots 8 and 6. In 1979, Kelly decided
to sell the tennis court lot (Lot 8) to Cummins, the owner of Lot
9. He was granted a minor subdivision by the planning board, to
add a small piece of Lot 6 to Lot 8, so the tennis court would be
totally contained on Lot 8. The planning board also granted
certain bulk variances regarding side yard and set back
requirements for Lot 6. After the 1979 subdivision, Kelly sold the
new Lot 8 to Cummins.
Sometime during the next fifteen years,See footnote 1 the zoning
ordinance was amended. In the R-2 Residential District, where the
subject lots were located, the new minimum lot size was increased
to 15,000 square feet, the new minimum depth was 150 feet and the
new minimum front and rear yard setbacks were each forty feet. The
amendments added a definition of "lot" as "[a]ny parcel, tract or
area of land established by a subdivision plat or deed of record,
... except that for the purposes of this Ordinance, contiguous
undersized lots under one ownership shall be considered to be one
lot ...." (emphasis added).
After the enactment of these amendments, Cummins'
husband died and she decided to sell her property. Through her
attorney, she requested a legal opinion from the Borough of
Haddonfield as to whether she could sell the two lots separately.
On December 8, 1992, the planning board's attorney responded to
Cummins' attorney, advising that "the two adjacent lots now owned
by Mrs. Cummins have not merged, even though Lot 8 is now
undersized for this zone as a result of the most recent zoning
ordinance amendment." In fact, both lots were undersized and
therefore came within the coverage of the ordinance. Noting that
Lot 8 had been created by a subdivision approved by the planning
board in 1979, and treated and taxed as a separate independent lot
since then, the board's attorney relied on Cox, New Jersey Zoning
and Land Use Administration, ch. 12-2.3, 210 (1992). He cautioned
only that any owner of Lot 8 wishing to construct a house would
need approval by the board of adjustment for whatever bulk
variances were required.
Relying on that opinion, and presumably on her own
attorney's concurrence, Cummins sold the smaller Lot 9 to Roy C.
Perry in September 1993.See footnote 2 Shortly thereafter, in mid-1994, Cummins
contracted to sell Lot 8 to the Kalleenys, contingent on any
required bulk variances. The Kalleenys, as contract purchasers,
applied for the bulk variances on June 1, 1994. The application
proposed construction of a new residence, replacing the tennis
court, on a lot containing 13,849 square feet (only 103 feet deep)
and with setbacks of twenty-eight feet in the front yard and
twenty-seven feet in the rear. After a series of three hearings,
the board "conclude[d] that denial of the requested variances would
cause practical and unusual difficulties and hardship upon the
applicants and owner of the property which justify the granting of
the requested variances." Further, "the requested variances can be
granted without being detrimental to the public good, nor will they
violate the spirit and intent of the Zoning Ordinance and the Zone
Plan."
At the trial in the Law Division, the judge expressed the
thought that the "doctrine of merger" applied, but the municipality
was estopped from denying Cummins the right to sell the lot because
she relied on the planning board attorney's letter opinion and sold
the lots separately. He also found "the requested ... variances
seem to be relatively minor and will go a long way in eliminating
the perceived hardship to the owner ... to permit her contracted
purchaser to build a home consistent with those homes which are in
that particular area." Finally, the judge concluded the grant of
the variances was appropriate because the board "considered the
neighborhood, its character, its value, the impact that the
variance would have upon the existing neighborhood and they
concluded no negative impact." Disregarding the lack of a
transcript of the December meeting of the board of adjustment, the
judge stated there were adequate facts in the transcript of the
first meeting to support the board's decision.
On appeal, plaintiff challenges the result in the Law
Division, contending: (1) the doctrine of equitable estoppel was
inapplicable because the planning board attorney lacked authority
to issue an opinion interpreting the zoning ordinance; (2)
proceeding without a transcript of the final board meeting violated
N.J.S.A. 40:55D-10(f) and a remand to the board of adjustment was
required; (3) the board's vote was improper because one of its
members voting at the third meeting had been absent from the first
two meetings; and (4) the grant of the bulk variances was
arbitrary, capricious and unreasonable because the record reveals
no proof of the need for setback variances.
We agree with plaintiff that the planning board attorney lacked statutory authority to offer his interpretation of the zoning ordinance to a private citizen and thereby bind any municipal agency. The opinion was requested by Cummins' attorney and she, in turn, relied on her attorney's advice. However, the municipality never sought to set aside the subsequent conveyance of
Lot 9 to Perry, and it may not do so now as the two-year limit of
N.J.S.A. 40:55D-55 has passed. That circumstance evidences the
official municipal view that Lots 8 and 9 were separate lots and
never merged. Otherwise, having conveyed Lot 9 to a bona fide
purchaser, Cummins would be left with a lot either zoned into
inutility or saleable only to an adjacent landowner, probably at
forced sale rates.
A municipality or any of its agencies may be estopped if
the circumstances involve reliance on a good faith act of an
administrative official, within the ambit of that official duty,
which constitutes an erroneous and debatable interpretation of an
ordinance. See Tp. of Fairfield v. Likanchuk's, Inc.,
274 N.J.
Super. 320, 332 (App. Div. 1994). When the circumstances lead a
landowner to be misled by the "reasonable implications" of
municipal action, such as the longtime recognition that Lots 8 and
9 were separate lots, and the legal significance of that (non-merger) is verified by an attorney who is part of the official
municipal family, a municipality may be estopped from refusing
variance relief based on the concept of self-created hardship
arising from a merger of the two lots. "There is in [those]
particular circumstances a preclusion in equity and elemental
justice against the relief [merger] demanded by plaintiffs. Summer
Cottagers' Assn. of Cape May v. City of Cape May,
19 N.J. 493, 506
(1955).
The validity of a forced merger of the lots by operation
of law depends on the circumstances under which the lots were
created. If the lots were created under the Old Map Act prior to
the time a municipality adopted a land subdivision ordinance under
the 1953 Municipal Planning Act, the lots are deemed merged, lot
lines are ignored and further subdivision is needed to separate
them. See Loechner v. Campoli,
49 N.J. 504, 511-12 (1967); Ryan v.
Bd. Adj. Woodbridge Tp.,
49 N.J. 520, 524 (1967). Back-to-back
lots created by an old filed map are an exception to the Loechner
rule. Chirichello v. Bd. Adj. Monmouth Park,
78 N.J. 544, 554
(1979).
Lots created by subdivision under the Municipal Planning
Act or the Municipal Land Use Law present different considerations
than those created by an old map filing. There is an apparent
statutory exception to Loechner found in the definition of
"subdivision" in N.J.S.A. 40:55D-7. There, excluded from the
definition, is:
[t]he conveyance of one or more adjoining
lots, tracts or parcels of land, owned by the
same person or persons and all of which are
found and certified by the administrative
officer to conform to the requirements of the
municipal development regulations and are
shown and designated as separate lots, tracts,
or parcels on the tax map or atlas of the
municipality.
Where the owner has not done anything to destroy the separate identity of two lots acquired after a subdivision, buyers of each will have good title without further subdivision approval, and if one is vacant, development may require variances but not subdivision. See Pribish v. Corbett, 105 N.J. Super. 407 (App. Div. 1969); see also Bridge v. Neptune Tp. Zon. Bd. of Adj., supra,
233 N.J. Super. at 593 (assemblage of two lots on existing street
with house on one and other remaining vacant may permit lots to
retain their separate identity and not merge). A leading authority
advocates that such lots are still recognized as separate lots, not
subject to merger by operation of law, and bulk variances needed to
develop an empty lot are within the jurisdiction of the board of
adjustment.
[W]hen an application comes to a planning
board where an owner of property owns two
adjoining lots, one of which is improved, and
needs yard variances to permit construction on
the adjacent lot, it should be initially
determined which board has jurisdiction. If
the lots were created under the old Old Map
Filing Act, presumably the lots have merged
and a subdivision is involved which would mean
that the matter would be within the
jurisdiction of the planning board. On the
other hand, if the two adjoining lots had at
one time been approved by the planning board,
even though they may now be substandard, they
are still recognized as separate lots. The
doctrine of merger does not apply to them, and
therefore the application for bulk variances
with respect to the vacant lot would be within
the jurisdiction of the zoning board of
adjustment.
[Cox, New Jersey Zoning and Land Use
Administration, ch. 12-2.3, 210-11 (1994).]
Elemental fairness dictates that Cummins be permitted to sell Lot 8 without regard to Lot 9. The sale to Perry was bona fide and should not be invalidated. The fate of Lot 8 depends on the validity of the substantive decisions of the board of adjustment regarding the bulk variances sought. On remand, which we are ordering because the transcribed record of the third hearing was incomplete, infra, the judge should not consider that Cummins
created her own hardship by selling Lot 9 and leaving Lot 8 as an
isolated undersized lot.
At the end of the initial hearing on July 19, 1994, the applicant was directed to prepare an architectural rendering of the proposed house. Members of the public asked for additional time to review the rendering and then to present their opposition at the next meeting. The architectural rendering and the public reaction was considered at the third hearing on December 20, 1994 when the tape recorder malfunctioned. In the Law Division, the judge said:
This court finds adequate facts in the first transcript of the record to support the decision made. Counsel for Scardigli is correct with regard to the legal proposition put concerning the inadequate record. The recourse that a court would have in that regard would be to return it but this court does not make a finding of inadequacy. Yes, there may be gaps. The question becomes, are the gaps of such a magnitude that the court could not conclude there was support for the decision reached.
N.J.S.A. 40:55D-10(f) directs the planning board to "provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means." Without such a record, courts are unable to engage in judicial review and ordinarily should remand for further proceedings. Carbone v. Planning Bd. of Tp. of Weehawken, 175 N.J. Super. 584, 586 (Law Div. 1980)(because the submitted meeting minutes were inadequate and no verbatim record was made, matter remanded to planning board for rehearing); Lawrence M. Krain Assoc. v. Mayor of Tp. of Maple
Shade,
185 N.J. Super. 336, 341 (Law Div. 1982)(without verbatim
recording of board of adjustment meeting, court could not decide if
denial of variance was arbitrary or capricious, and remanded for
new hearing on that part of the application).
Here, the typed transcript of what was successfully
recorded is only four and one-half pages long, and we cannot
ascertain the magnitude of the two gaps from either that transcript
or the transcript of the trial in the Law Division. The trial
judge rejected the idea of a remand to the board of adjustment, but
he did not consider attempting to reconstruct the record. We find
an analogy in R. 1:2-2 which requires verbatim recording of
proceedings in the Superior Court, but when stenographic notes have
been destroyed or lost before an accurate transcript could be
prepared, we have asked trial judges to reconstruct the record.
Reconstruction may be done by the judge alone or with the aid of
counsel. See State v. Gaines,
147 N.J. Super. 84 (App. Div. 1975),
aff'd o.b. sub nom., State v. Powers,
72 N.J. 346 (1977); State v.
Kozarski,
143 N.J. Super. 12 (App. Div.), certif. denied,
71 N.J. 532 (1976); State v. Smith,
84 N.J. Super. 452 (App. Div.), certif.
denied,
43 N.J. 270 (1964).
We infer from the proceedings in the Law Division that
the purpose of the third hearing before the board of adjustment was
to confirm what had been testified to at the first hearing.
Whatever testimony was offered from members of the public in
December, as well as the public input at the September hearing, was
considered by the board of adjustment in its final determination.
That should have been considered by the trial judge as well. Since
the sparse record of the December hearing does not reveal anything
about the magnitude of the gaps in the record, the judge on remand
should attempt to reconstruct the record with the assistance of
counsel (cf., State v. Casimono,
298 N.J. Super. 22, 25 (App. Div.
1997)), or the judge may accept a stipulation of the record from
counsel. If the judge finds it is not possible to reconstruct the
record with the aid of counsel, he should order the board of
adjustment to attempt reconstruction. If that fails, the board
should hear testimony anew. From the reconstructed record, the
judge should once again consider the trial issues. Reconsideration
need not be limited to relief under N.J.S.A. 40:55D-70(c)(1), and
the judge may also focus on the character of the development of Lot
8 as a community benefit under N.J.S.A. 40:55D-70(c)(2). See
Ketcherick v. Bor. of Mountain Lakes,
256 N.J. Super. 647, 657
(App. Div. 1992).
At the third board meeting in December 1994, one of the board members, Michael Skinner, voted to approve the variance although he was not present at the two prior meetings. Plaintiff asserts that pursuant to N.J.S.A. 40:55D-10.2, because Skinner never supplied a written certification that he had read the transcript of the two prior meetings, he should not have been permitted to vote. This issue was raised in the Law Division but not addressed by the judge.
The board of adjustment voted to grant the application by
a vote of five to two. N.J.S.A. 40:55D-9 provides for approval of
an application for bulk variances under N.J.S.A. 40:55D-70(c) by
the vote of a simple majority of a quorum of the board. Skinner's
improper vote does not change the ultimate result, and plaintiff
has not claimed that Skinner's participation at the December
meeting was prejudicial to plaintiff's cause. While it was
erroneous to permit Skinner to vote under the circumstances, we
conclude the error is harmless.
Reversed and remanded to the Law Division for further
proceedings. We do not retain jurisdiction.
Footnote: 11. The record does not reveal the date of the adoption of the pertinent amendments to the local zoning ordinance. Footnote: 2. Neither the plaintiff nor the municipality has questioned the validity of this conveyance.