FEATURE ARTICLE, SEPTEMBER 2006

EASEMENTS AND ZONING COMPLIANCE
What you need to know when calculating lot dimensions for determining zoning compliance.
Howard D. Geneslaw and Michael Miceli

It is common for developers to dedicate or reserve portions of their developments to accommodate future roadway widening projects. Sometimes developers make these dedications or reservations pursuant to informal requests by governmental agencies; other times, the agencies require such dedications or reservations as formal conditions of approval. Often, developers choose to reserve such areas by easement. When a lot meets size and setback requirements, such a reservation has virtually no impact. However, a developer whose lot requires inclusion of the easement area to meet lot requirements may be surprised to learn that strips of land reserved by easement for road purposes may not count when calculating lot size and setback requirements1.

In Loveladies, a developer seeking subdivision approval created easements to allow access to its development rather than dedicating public roads to the municipality. With the easement areas, the development met minimum lot size requirements; without them, the lot was undersized.  The developer and the land use board included the easement areas when calculating the lot size.

The land use board approved the subdivision application, and an objector appealed. On appeal, the court analyzed whether the developer and the board had improperly included easement areas when calculating lot size requirements. The court stated that if the developer had dedicated the strips as public streets instead of as easements, the developer would have no colorable claim for their inclusion. The court found that the same rule should apply to the use of easements and held that the developer could not use the easement area to meet minimum lot size requirements. Accordingly, the court overturned the subdivision approval because it created lots that were impermissibly undersized.

Similarly, in Kefauver, the applicants sought approval to permit additions to their motel2. The ordinance required a minimum 35-foot front yard setback. The applicants’ plan showed the front yard setback as 35 feet. However, that setback calculation included an area that was owned by the applicants but encumbered by an easement for service road maintenance. The board included the easement area in the front yard setback and approved the additions. A group of nearby property owners appealed. The court overturned the land use board’s approval, holding that, although the applicants owned the strip of land, the existence of an easement on that land for service road maintenance precluded the use of the easement area as a front yard. Instead, the applicants and land use board should have measured the front yard setback line from the edge of the easement area.

What can a developer do if its development requires the precious square footage contained within those easement areas to meet zoning requirements? A close reading of the case law reveals that courts usually analyze whether the developer can use the easement area for its proposed use. In Kefauver, the court refused to allow use of the easement area because “the easement effectively prevents [the applicants] from using any part of the macadamized service road as a front yard for their enterprise . . . .”  Sometimes, this analysis focuses on the definition of the term “lot.” In Loveladies, the ordinance defined the term “lot” as “land on which a main building and its accessory buildings are or may be placed, together with the required open spaces, the location, dimensions and boundaries of which are shown on the records of Ocean County.” Based on this definition, the court found that the easement areas, which could neither be built upon nor categorized as open space, were not part of the “lot.”  However, the court noted that the municipality could amend its ordinance to specifically allow the use of such areas in calculating “lot” requirements.

Before moving forward with an application that includes a lot containing road easement areas or a potential roadway dedication, a developer must closely examine the applicable zoning ordinance, and particularly the definition of the term “lot,” to determine if the ordinance permits the use of such areas to meet yard and setback requirements. If it does not, the developer should not run the risk of obtaining an invalid approval by including the area in its lot requirement calculations. Even if the land use board agrees to allow the developer to use the easement areas in its calculations, the developer should either seek a variance or go through the formal ordinance amendment process to avoid a third-party attack on the approval’s validity. Although a variance request would increase the developer’s burden of proof and an ordinance amendment could slow the development process, these options would better serve a developer seeking to protect the approval rights in its development.

Howard D. Geneslaw is a director, and Michael Miceli is an associate, at the law firm of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.

1 Loveladies Property Owners Ass’n, Inc. v. Barnegat City Service Co., 60 N.J. Super. 491 (App. Div. 1960); 2Kefauver v. Zoning Bd., 151 Conn. 144 (1963).

©2006 France Publications, Inc. Duplication or reproduction of this article not permitted without authorization from France Publications, Inc. For information on reprints of this article contact Barbara Sherer at (630) 554-6054.