Agenda - Planning Commission - 05/07/2009

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I I I I I I I. I (~) '~._-,,' ( ) - ~'-"./ l " I Zoning Bulletin April 10, 20091 Volume 3 I No.7 ~) (-- New Jersey statutory law, N.].S.A. 40:55D-70(c)(1), provided that when the physical conditions of a property resulted in undue hardship upon the de- veloper of such property, azoning board could grant a "hardship variance." The ZBA ultimately denied Egeland's application for a har.dship vari- ance. The denial was largely based on the ZBA's conclusion that hardship claimed in support of Egeland's application for a variance was a "self-creat~ ed hardship." New Jersey case law provided that the "availability of a hardship variance depend[ed] on how the hardship was created." Where the hardship had been created by the applicant, or a predecessor in title, relief would normally be denied. For denial on such a basis, there was no requirement that the current owner have been involved in the creation of the hardship. "If a prior OWner created the hardship and [wa]s not entitled to a hardship variance," the cur- rent owner also would not be so entitled. Egeland appealed the ZBA's determination. She argued that, as a matter of public policy, a testamentary division could not be viewed as a self-creat" ed hardship because it was a legally permissible method of dividing land. She also arglied that for there to be a self-created hardship, there must be some sort of misconduct or bad motive on the part of the person creating the non" conforming lot. The trial judge affirmed the ZBA's determination, including its de~ision tb view the testamentary division as a self-created hardship. ' Egeland appealed. DECISION: Affirmed in part and dismissed in part. The SUP~rior Court of New Jersey, Appellate Division held that a tes- tamentary division-such as the one made by Egeland's mother-could be viewed, as a self-created hardship. In so holding, the court concluded that, contrary to Egeland's assertion, there was no public policy reason to not view a testamentary division as a self-created hardship~ The court agreed that a testamentary devise was a le- gitimate method of dividing land. However,. just because the New Jersey's Municipal Land Use Law (the "MLUL") (N.].S.A. 40:55D-1 to -163) did not prevent testamentary division of property, did not mean that zoning and planning regulations did not apply to the use of property so divided. The MLUL nevertheless governed the use made of the property by those who re- ceived it. Further, the court found there was no law that supported Egeland's asser- tion that there must be some sort of misconduct or bad motive on the part of the person creating the non-conforming lot for the concept of a self-created hardship to be applied. Rather the law was simple: "'[A]n affirmative action by the landowner or predecessor in title that brings an otherwise conform- ing property into nonconformity' constitutes a self-created hardship." The court found that here, Egeland's mother's action in devising the Property into two lots was the "'affirmative action' that brought an 'otherwise conforming @ 2009 Thomson Reuters 9 __I 51