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

Legal Q & A


Self-created Hardship
and Conflict of Interest

Deborah M. Kole
League Staff Attorney

Q We live in a very old neighborhood which is made up almost entirely of lots that are undersized under current municipal zoning, but predate the zoning ordinance and so are nonconforming. Most of the lots have houses on them, but one lot is vacant. The vacant lot was owned until five years ago by the son of the man who owned the lot next door. The legal title to the vacant lot was always in the son's name, but the father paid the taxes and built a storage shed on the property, which he used to store his gardening equipment.

Five years ago the father and son sold the lots to a buyer who kept title to the first lot and transferred the vacant lot to his wife. I was unaware of it at the time, but apparently before the sale took place, the prospective buyer asked the zoning board if the lots had merged over the years of father-son ownership and would therefore require re-subdivision. The zoning board responded that they had not merged because the lots were always under separate ownership.

Now the owner of the vacant lot has been granted a variance on the basis of "undue hardship" so that she can build a house on the property. We are very upset about having another house so close to ours when all these years we have had a well-maintained vacant lot there. I have been told that I may be able to challenge grant of the variance on the basis that the lots did merge under the previous ownership because the father used the son's property as though it were his own, and that the new husband and wife owners have a "self-created hardship" because they are keeping the title to the properties separate. Is this true?

A There was a 2004 Appellate Division case, discussed in the May, 2005 Legal Column, that sup-ported your position, but it was reversed by the New Jersey Supreme Court in Jock v. Zoning Board of Adjustment of the Township of Wall, (A-72-04), decided August 4, 2005. In a similar fact pattern to yours, the court held that the merger doctrine did not apply, and that the Appellate Division reliance on the case of Loechner v. Campoli, 49 NJ 504(1967) was misplaced and based on a misinterpretation of the law. The court said, "The Appellate Division here ruled that Loechner does not require commonality of legal title and that merger can be compelled based.




on the conduct of a property owner in respect of an adjacent owner's lot or based on `equitable ownership' of separately titled property. We disagree. Indeed, plaintiffs were unable to cite a single New Jersey case that has ever considered a merger analysis in the absence of common legal title...plaintiff's notion that we should import a conduct analysis into the merger doctrine would have major ramifications to land use authorities and would render the title of all contiguous undersized lots in doubt."

As for the plaintiff's claim that there was a self-created hardship in the Jock case, the court said that legal title in the two properties has always been separate, and the court noted, "It is one thing to say that a property owner who takes affirmative steps to render conforming land non-conforming should be deemed as "creating" his own hardship. It is quite another to suggest that parties who purchase non-conforming property and do not take affirmative steps to render it conforming are complicit in creating the hardship...Property is often purchased and kept in diverse ownership in order to preserve a zoning advantage. That is an entirely legitimate practice..."

Therefore, under current law, it does not appear that a challenge by you on this basis is likely to be successful.


Q I am an attorney whose law partner is zoning board attorney for a municipality. Can I represent private clients on traffic and disorderly persons offenses in that municipality's municipal court?

A No, you cannot. The New Jersey Supreme Court Committee on Professional Ethics ruled in 2005, Opinion 697, that such representation of defendants in municipal court by the partner of that municipality's zoning board attorney is a conflict of interest. This Opinion made it clear that an attorney representing any "municipal body subject to the governing entity's budgetary, membership, or decision-making control" is considered to be representing the municipality itself. Therefore, he or his firm cannot represent a client in municipal court without violating RPC 1.7 (a) (1), which says an attorney cannot represent a client with an interest adverse to the interest of another client.

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


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