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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Self-Created Hardships
and Charter changes



Deborah M. Kole
League Staff Attorney

Q Twenty years ago, I bought a three-quarter acre lot in my municipality. Two years later, I bought a lot of the same size adjacent to it, but had it conveyed directly by the seller to my son as a gift. At the time, the zoning in that section of the community was residential, with a minimum of one-half acre minimum area per lot. Fifteen years ago, the area was rezoned with a one acre minimum, thereby making both lots pre-existing, nonconforming uses. I built a house on the lot I retained. My son's lot remained vacant, except for a well we had dug to provide water for watering the lawn on the lots, and a tool shed.

We recently applied to the Board of Adjustment for a hardship variance so that my son can put the vacant lot up for sale. The Board denied the variance, calling it a "self-created hardship". Despite the fact, acknowledged by the Board, that legal title to the two lots had been held by separate parties since before the zoning change, they claimed that I had equitable title over both lots the entire time. Therefore, they ruled, the two lots had merged, and my attempt to separate them and sell one of them as a non-conforming lot was a "self-created hardship".

Doesn't legal title control in such situations?

A According to a recent Appellate Division case, it is not nearly that simple. In the recent case of Gunther Jock, et al. v. Zoning Board of Adjustment of the Township of Wall, et al., Docket No. A-0142-02T3 (App.Div., August 2004), the Court stated that, in a fact pattern similar to the one you describe, "...equitable or constructive ownership of adjacent non-conforming lots is sufficient to create a merger. We reject (the) exaltation of legal title and conclude that the circumstances surrounding ownership of these lots at two different points in time caused the lots to merge or, stated another way, the efforts to avoid merger rendered the isolation of the non-conforming lot a self-created hardship." Noting all the facts and circumstances surrounding the dominion and control exerted over both lots by one of the legal owners through all the years involved, the Court determined that he alone had owned both lots the entire time, and could not now demand that they be treated as separately owned. Apparently, the Board of Adjustment saw your situation in the same light

 

QThree years ago, our municipality adopted the Council-Manager form of government under the Faulkner Act. The version of this form adopted provided for a five member council, and the election of the mayor by the council members. Although we are generally happy with this form of government, we would like to have the mayor elected directly by the residents and possibly expand the council to seven members. How can we do this?

AThe first thing you must do is wait another year before any change can be considered. The statute concerning amendment of the a charter under the "Optional Municipal Charters Act" (or Faulkner Act), N.J.S.A. 40:69A-25.1, provides that "No question shall be submitted to the voters pursuant to this section within 4 years next following the adoption by the municipality of a plan of government authorized (by the Optional Municipal Charter Act) or within 4 years next following the date on which the question of adopting it or any alternative in the same group was last submitted to the voters pursuant to this section."

Once the appropriate time has passed, the proposed change or changes must be placed on the ballot for a referendum. There are three ways to put the question(s) on the ballot. The easiest way is by an ordinance passed by the governing body. The question may also be placed on the ballot by petition of the voters, using the same procedure used to put an ordinance on the ballot through initiative and referendum in Faulkner municipalities, or by the recommendation of a charter study commission.

There is a prescribed form for these questions that must be followed. It is set forth in the amendment statute cited above. If more than one question is placed on the ballot, each issue must be stated in its own question, to be voted upon separately.

 

This column is for informational purposes only, and is not intended as legal advice.


 

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