Posted by: Patricia Salkin | May 28, 2016

NJ Appeals Court Rejects Argument that Town’s Merger of Owner’s Lots was Ultra Vires

Plaintiff Joseph Simone was the contract purchaser of a certain parcel of property located in the Township of Wayne owned by Frederick and Barbara Habeeb, designated on the tax map as Lot 7.01, and consisting of approximately 14,520 square feet of vacant land. Plaintiff intended to construct a single-family home on the parcel. The adjacent parcel, Lot 7, was approximately 15,810 square feet, and also owned by the Habeebs, having been conveyed to them at the same time they acquired Lot 7.01. The minimum lot size permitted in the zone was 30,000 square-feet, although nearby surrounding lots, originally laid out as part of a lakeside community in the late 1920s, were non-conforming when Wayne adopted the current zoning regulations. Plaintiff argued that the Board’s denial of the subdivision was arbitrary, capricious and unreasonable because the proposed lots conform in size to surrounding lots and thereby preserved the “character of the neighborhood.” He also contended that merging the two lots while his application was pending was “ultra vires.”

Distilled to its essence, plaintiff’s argument was that creating two lots, neither of which is conforming, from an existing conforming lot, advanced the purposes of the zoning plan because the surrounding lots were themselves undersized. The court noted, however, that the Board specifically found that the minimum lot size requirement was adopted by Wayne more than fifty years earlier after specifically rejecting a lesser minimum lot size that it chose to apply in other residential zones. Moreover, merger occurred as a matter of law when the sellers took title to Lot 7 and Lot 7.01 at the same time. Thus, Plaintiff’s contention that the merger was “ultra vires” was contrary to the position he took before the Board and the Law Division, where he conceded that merger was required as a matter of law.

Simone v Township of Wayne, 2016 WL 2888606 (NJ App. 3/31/2016)


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