January 1, 1900

by Anne L. H. Studholme

Undersized lots that touch each other and are owned by the same person or entity can “merge.” Merged lots become one larger lot, preventing either of the original lots from being sold without a subdivision and variances. Anti-growth towns sometimes claim that contiguous lots have merged, because this lessens potential density on the parcel and prevents development. Those thinking of buying a parcel composed of undersized lots need to understand the doctrine of merger and its exceptions. Often, lots which the town claims have merged did not actually merge, and knowledgeable legal analysis can preserve the lots as individual, buildable parcels.

The Merger Doctrine – Loechner and Later Cases

In 1961, the New Jersey Supreme Court decided Loechner v. Campoli, which presented the question of whether lots platted by a developer before the adoption by the town of zoning and subdivision regulations kept their individual identity if: (1) they had never been built upon; (2) they were contiguous; (3) they were owned by the same person; and (4) they had become undersized due to zoning laws, passed after the lots were platted, which required more street frontage or area than the lots provided. The Court ruled that there was no reason to grant perpetual recognition to the “lines on a map” laid out by the original developer, and that division of such an assembled or “merged” parcel, even along the originally platted lot lines, was a subdivision subject to municipal board approval and requiring variances. This became known as the doctrine of merger.

In the 1989 case of Bridge v. Neptune, the Court found that if someone were to buy contiguous non­conforming lots delineated as separate tracts, and then were to build a single­family structure so that it overlapped both lots, the lots would merge into a single tract and would require subdivision before either could be sold “as long as the structure remains on any part of both lots.” In 2005, Jock v. Wall, a New Jersey Supreme Court case, it was reiterated that true merger will only take place if all four conditions are met. Towns, however, sometimes claim merger as a matter of course without much regard for these necessary factors.

Exceptions

Those dealing with potential merger issues must be aware of the exceptions to the merger doctrine. Those exceptions are as follows:

Conforming Lots

This should go without saying, but municipal positions make it necessary to stress that the Municipal Land Use Law (MLUL) specifically says, and the Jock v.Wall Court noted, that conforming lots do not merge. Merger does not apply to adjoining lots, owned by the same person or entity, all of which conform to the bulk zoning requirements.

Lots Created Under “Modern” Planning Law in Place Since 1953

Contiguous lots created pursuant to a subdivision approved under the Planning Act of 1953 or later statute do not merge. This reflects the reality that, where property has already satisfied modern land planning rules, merger is unwarranted. Accordingly, once a lot has been created by a planning board pursuant to subdivision approval, it may be exempt from the merger doctrine even if it later is rendered nonconforming by subse­quent zoning.

Back-to-Back Lots

Likewise, merger does not apply where a party who owns a nonconforming lot acquires a contiguous lot that fronts on a different street (back-to-back lots), since it would require an illogical finding that these two lots were intended to form one exceptionally long, narrow plot with reverse frontage on one street.

Lots Which Would Create an L-shape, Isolating a Corner Lot

As with back-to-back lots, wrap­around parcels are not countenanced by the doctrine and are specifically exempt from merger. However, an odd-shaped lot may be created from a corner lot plus another undersized adjacent lot or lots which face on one side street, so long as the resulting parcel is essentially just a larger, albeit possibly lopsided, corner lot itself.

Other Instances Where Municipal Claims of Merger Should be Questioned

Some towns will claim that any lots taxed as one unitary parcel have thereby merged. However, the Jock v.Wall case reiterates that merger has nothing to do with the tax recordation of the property. While the issue is not free from all doubt, according to Loechner and all subsequent cases, conforming lots never merge, regardless of how they are treated on the tax map.

Moreover, if a building is built across a lot line and one or more of the lots are nonconforming, that building may be found to have “obliterated” the lot line. This can even apply if one or both of the lots were created by “modern” planning. It is arguable that, even in the case of nonconforming lots with a building across the line, if the building is torn down and, if for some other reason (back-to-back or L-shaped) the lots would not merge, then once the building is removed they would regain their “independent” status. Bridge v. Neptune suggests that merger may be a temporary condition, i.e., that it can lapse and then be “reconstituted.” This is worth keeping in mind if the town asserts otherwise.

Lots Owned by Allied Entities

So long as the entities holding title are legally and technically separate, no merger will occur, notwithstanding how close a relationship there may be between the owning entities. This ought no longer to be in question, but an objector or town only familiar with the lower court rulings in Jock v.Wall may mistakenly believe the somewhat persuasive reasoning that the closeness of the relationship ought to count. It does not, as the New Jersey Supreme Court has now ruled.

Conclusion

In sum, the doctrine of merger has a complex history, its current exposition in the law is somewhat ambiguous, and there are many exceptions that can interplay in a variety of ways. Despite all this, zoning officers may sometimes simply say, regardless of the facts, that two lots next to each other merge. This is often not the case, and knowledgeable counsel can educate the town, or fight if necessary, to preserve the right to sell non-merged lots.