Urban v. Planning Bd. of Borough of Manasquan, Monmouth County, N.J.

• Decision Date: 18 July 1991
• Docket Number: No. D,D
• Citation: 592 A.2d 240,124 N.J. 651
• Parties: Ronald and Linda URBAN, Ira Schulman, Robert R. Zanes, and David and Judy Delaney Shirley, Plaintiffs, and Raymond M. Tomasso, Jr., Raymond Tomasso, Sr. and Dorothy Tomasso, Plaintiffs-Appellants, v. PLANNING BOARD OF the BOROUGH OF MANASQUAN, MONMOUTH COUNTY, NEW JERSEY, Defendant-Respondent. 54
• Court: New Jersey Supreme Court

Page 651

124 N.J. 651

592 A.2d 240

Ronald and Linda URBAN, Ira Schulman, Robert R. Zanes, and David and Judy Delaney Shirley, Plaintiffs and Raymond M. Tomasso, Jr., Raymond Tomasso, Sr. and Dorothy Tomasso, Plaintiffs-Appellants, v. PLANNING BOARD OF the BOROUGH OF MANASQUAN, MONMOUTH COUNTY NEW JERSEY, Defendant-Respondent.

No. D.54

Supreme Court of New Jersey.

Argued Jan. 28, 1991.

Decided July 18, 1991.

Thomas E. O'Brien, for plaintiffs-appellants (Bathgate, Wegener, Wouters & Newmann, attorneys), Lakewood.

Michael R. Rubino, Jr., for defendant-respondent (Fay, Pandolfe, Shaw & Rubino, attorneys), Spring Lake.

Fred G. Stickel, III, Gen. Counsel, Cedar Grove, submitted a letter brief on behalf of amicus curiae New Jersey State League of Municipalities.

Alan J. Pogarsky, President, Toms River, submitted a letter brief on behalf of amicus curiae New Jersey State Bar Ass'n.

The opinion of the Court was delivered by

O'HERN, J.

The question in this appeal is whether an existing nonconforming parcel of land occupied by several dwelling structures is divisible as a matter of right into multiple nonconforming lots accommodating each of the structures. We hold that such a division is a subdivision of land within the meaning of the Municipal Land Use Law of 1975 (MLUL), N.J.S.A. 40:55D-1 to -112, and that such a subdivision may be granted only on approval of the necessary variances by the municipal planning board.

I

The case has a troubling history because it involves an unsettling issue of lack of respect for the law. In a prior unreported opinion that reviewed a separate denial of subdivision application, the Appellate Division of the Superior Court had affirmed a Law Division judgment that directed the Planning Board of the Borough of Manasquan to follow the holding of Beers v. Board of Adjustment, 75 N.J.Super. 305, 183 A.2d 130 (App.Div.1962). Beers held that an owner of a nonconforming lot that contained multiple structures had a right to subdivide the lot along the lines of the structures. In effect, Beers required planning boards to grant subdivision approvals in circumstances such as those here.

Understandably, then, plaintiffs did not argue before the Planning Board for variances under N.J.S.A. 40:55D-70c(2), the so-called "flexible variance." Plaintiffs' case was addressed instead to the meaning and effect of the Beers decision as the Appellate Division had previously ruled the Planning Board was bound by that case. Accordingly, the questions that plaintiffs' counsel put to his expert witness dealt more with the witness's understanding of the application of Beers in other communities than with the reasons in favor of variances in the circumstances of this case. The decision by the Planning Board thus turned on the applicability of Beers rather than a determination under the standards imposed by the MLUL. The Planning Board, however, believed that the Appellate Division had erred as a matter of law in its previous decision directing that Beers be applied and denied plaintiffs' application notwithstanding the earlier mandate.

Plaintiffs' lot is a rectangular corner lot in Manasquan. With frontages of twenty-five feet on Brielle Road and 100 feet on Third Avenue, its 2500 square feet are below the ordinance requirement of 3400 square feet. There are two dwelling houses on the lot (a one-family and a two-family). Neither meets the present setback requirements. Plaintiffs propose to create separate lots for each of the structures, one to be approximately twenty-five by sixty feet, or about 1500 square feet, and the other approximately twenty-five by forty feet, or about 1000 square feet. At the time of plaintiffs' application, there were over 170 lots in Manasquan with multiple structures on them. In addition, one undivided twenty-acre tract of land contained approximately 350 dwellings, mostly small bungalows. The Planning Board members, although expressing various reasons for departing from the Beers ruling, seemed most concerned that Manasquan's history as a summer-bungalow colony left it especially vulnerable to any detrimental effect of Beers.

The Law Division judge, whose ruling in the previous case involving the Manasquan Planning Board had been affirmed, was understandably indignant about the Planning Board's actions in this case, and directed it to approve plaintiffs' subdivision request and those of several other similarly situated property owners. On appeal, a different panel of the Appellate Division reversed the Law Division judgment, disapproving of the reasoning of the Beers case and holding that, regardless of Beers' validity under prior law, the MLUL imposed superseding requirements. Urban v. Planning Bd., 238 N.J.Super. 105, 569 A.2d 275 (1990). Accordingly, it reinstated the Planning Board's denial of the subdivisions. Only the Tomassos sought certification of that decision, which we granted. 121 N.J. 664, 583 A.2d 349 (1990).

We affirm the Appellate Division decision that Beers should not serve to grant an unrestricted right to subdivide existing nonconforming lots occupied by multiple structures. We believe the proper approach is to balance the rights of owners of existing nonconforming properties with the public interest to achieve better zoning for the community. Because the hearings below focused on plaintiffs' right to subdivide under the authority of Beers, that balance, mandated by the MLUL, has not been adequately addressed. We therefore remand the matter to the Planning Board for further proceedings in accordance with this opinion.

II

Several principles of land-use law intersect here but none points unerringly to an answer. Of course, that the expansion of a nonconforming use or structure is not favored is a settled principle of law. Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 543 A.2d 950 (1988). At the same time, the nonconforming rights run with the land irrespective of changes in ownership. N.J.S.A. 40:55D-68. That principle is consistent too with our view that the status of land use does not turn on the status of ownership. Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 281 A.2d 513 (1971) (summer rentals do not violate single-family zoning restriction). Those last two principles suggest that there is no difference from a planning or subdivision viewpoint based on whether one or more parties own the nonconforming structures.

That viewpoint draws us at first because of the conceptual dilemma posed: how can recognition of the existence of what is already on the land constitute bad planning? The parties' repeated arguments before the Planning Board focused on just that question. When you subdivide the lot, what do you have? Is it just what you had before or is it something different? Plaintiffs' attorney insisted that "the only difference between the project before the subdivision and after the subdivision is ownership." The Planning Board's attorney, on the other hand, insisted that by "the drawing of that [subdivision] line * * * you are creating something that wasn't there before"; and that the owners "have one [nonconforming] lot right now," but want to create "two lots that don't conform."

Courts have viewed the issue through both prisms. In Keith v. Saco River Corridor Commission, 464 A.2d 150 (1983), the Maine Supreme Court held that the owner of a parcel of land on the Saco River containing a duplex residence and two detached single-family houses could divide the land into four separate lots free of the requirements of the state's Saco River Corridor Act. Citing Beers, it ruled: "The mere change from tenant occupancy to owner occupancy in the instant case is not an extension, expansion or enlargement of the previously existing nonconforming buildings, structures or use within the meaning of the restrictive provision of [the Saco River Corridor Act]." Id. at 155.

New Hampshire, however, has held that when the proposed subdivision of lots explicitly conflicts with a local subdivision requirement, "[t]he creation of two lots would thereby substantially change the nature and the extent of the previous nonconforming use." Isabelle v. Town of Newbury, 114 N.H. 399, 403, 321 A.2d 570, 572 (1974). As the matter may be viewed in either light, we must ask what reasons best inform the judgment.

In Beers, the court emphasized that the Municipal Planning Act of 1953, N.J.S.A. 40:55-1.1 to -1.29, repealed by L. 1975, c. 291 (Planning Act), was enacted primarily to regulate the development of vacant land in fast-growing, post-World War II New Jersey. Hence, it concluded that the requirements for subdivision were not conceptually or in principle intended to apply in the circumstance of a preexisting nonconforming lot occupied by structures. Beers, supra, 75 N.J.Super. at 317, 183 A.2d 130. The truth is that the requirement for approval before subdivision is but a part of the more comprehensive power of local government to address its social needs through the regulation of physical development. That power could never be explained better than by Justice Heher, when he sat on the New Jersey Supreme Court. He said:

The state possesses the inherent authority--it antedates the constitution--to resort, in the building and expansion of its community life, to such measures as may be necessary to secure the essential common material and moral needs. The public welfare is of prime importance; and the correlative restrictions upon individual rights--either of person or of property--are incidents of the social order, considered a negligible loss compared with the resultant advantages to the community as a whole. Planning confined to the common need is inherent in the authority to create the municipality itself. It is as old as government itself; it is of the very essence of civilized society. A comprehensive scheme of physical development is a requisite to community efficiency and progress. [Mansfield & Swett, Inc. v. Town of W....