NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3739-07T33739-07T3

JANICE A. EGELAND,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF COLTS NECK,

Defendant-Respondent.

___________________________________

Argued January 7, 2009 - Decided:

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1023-07.

Marc A. Leckstein argued the cause for appellant (Leckstein & Leckstein, LLC, attorneys; Mr. Leckstein, on the briefs).

Michael B. Steib argued the cause for respondent.

The opinion of the court was delivered by

WAUGH, J.S.C. (temporarily assigned).

This appeal raises the issue of whether a division of real property by testamentary devise is a "self-created hardship" for the purposes of an application for an undue hardship variance pursuant to N.J.S.A. 40:55D-70(c). The overall appeal is moot because of the withdrawal of the entity that had intended to purchase the property and build the specific home for which the variances at issue were sought. Nevertheless, we conclude that the question of whether there was a "self-created hardship" is a justiciable issue because the trial court's determination on that issue would be binding as between the property owner and the defendant zoning board in the event of a future variance application. We affirm that portion of the decision on appeal that held that the hardship was self-created and dismiss the remainder of the appeal as moot.

I

Plaintiff Janice A. Egeland is the record owner of a 1.65 acre tract of vacant land in the Township of Colts Neck (Township), which is officially designated as Block 38, Lot 15.01 on the Township's tax map. The lot was part of a larger property, Block 38, Lot 15, originally purchased by Egeland's parents in 1971 and owned solely by her mother following her father's death. The lot at issue was created by a testamentary devise from Egeland's mother, whose will was written in 1994 and admitted to probate in March 2004. At the same time, the remainder of the original lot was left jointly to Egeland and her sister. They subsequently sold that lot to a third party for construction of a single family residence.

The original lot met the zoning requirements for construction of a single family residence in the Township's A-1 Agricultural Residential Zone District. However, at the time the governing will was written, it was not large enough to subdivide into two buildable lots in the A-1 zone. The division effectuated by the mother's will created one buildable lot and the lot at issue here, which would require variances for construction of a residence.

In 2006, Egeland entered into a contract to sell the property to Forefront Homes at Colts Neck (Forefront). The contract of sale was conditioned upon Forefront's ability to obtain the necessary approvals for the construction of a single family dwelling on the lot. In August 2006, Forefront filed an application with defendant Zoning Board of Adjustment of the Township of Colts Neck (Board), seeking to construct a single family dwelling with: (1) a lot area of 68,161 square feet, although 88,000 square feet are required; (2) a lot frontage of zero feet, although 300 feet are required; (3) a lot width of 159 feet, although 300 feet are required; and (4) no frontage on an improved street.

After holding hearings in late 2006, the Board denied the application by resolution dated January 17, 2007, largely on the basis of its conclusion that there was a self-created hardship. Forefront chose not to pursue the matter further and terminated its interest in the lot.

On February 26, 2007, Egeland filed an action in lieu of prerogative writs to challenge the Board's determination. The matter was tried on November 14, 2007. Judge Lawrence M. Lawson issued a written opinion on February 25, 2008, affirming the Board's determination, including its decision to view the testamentary division as a self-created hardship. He entered an order dismissing the complaint on March 11, 2008. This appeal followed.

II

We start with the standard of review. Our role in reviewing zoning decisions is ordinarily limited because "a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable." Wilson v. Brick Twp. Zoning Bd. of Adjustment, ___ N.J. Super. ___, ___ (App. Div. 2009) (slip op. at 8) (citing Wyzykowski v. Rizas, 132 N.J. 509, 518-520 (1993)). However, "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Ibid.

N.J.S.A. 40:55D-70(c)(1) provides for what is frequently referred to as a hardship variance:

Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to [N.J.S.A. 40:55D-62 to -68.6] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the zoning board shall have the power to] grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship. . . .

The Supreme Court noted in Jock v. Zoning Board of Adjustment of Township of Wall, 184 N.J. 562, 590 (2005), that "[u]ndue hardship refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise."

Jock holds that the "availability of a hardship variance depends on how the hardship was created." Ibid. A "self-created