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Town’s Stricter Subdivision Requirement is Invalidated by Court |
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1/11/2006 |
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 On January 11, 2006, an appeals court affirmed a lower court decision that invalidated stricter subdivision requirements in Kearny’s Manor section. The tougher subdivision division requirements were enacted by the Mayor and Town Council after a house on a 100 foot by 100 foot lot in the Manor area was torn down and an application was made to subdivide the lot into two 50 foot by 100 foot lots in order to build two new homes. The Mayor and Council responded by increasing the minimum lot width requirement from 50 feet to 60 feet and the minimum area requirement from 5,000 feet to 6,000 feet. The court’s action means that the lot requirements in the Manor will revert to the previous 50 feet minimum width size.
The appellate court determined that the tougher requirements imposed by the Council were invalid for two reasons. The court found that the appropriate procedure to make the change was individual notice by certified mail to every property owner in the Manor area. The appeals court also affirmed the lower court determination that, even if proper notice had been given, the zoning change did not have merit because the existing lot sizes in the Manor were predominantly 50 by 100 foot. That “prevailing pattern” of usage was a hurdle that could not be overcome.
When the Mayor and Council imposed the tougher subdivision standards in 2004, a proposal that would have applied the 60 by 100 foot requirement to every lot in the Manor area was considered but dropped for a more limited one that applied only to corner lots in the Manor. The Town’s land use planner had argued that, although the prevailing usage in the Manor as a whole was 50 by 100 foot, with respect to properties on corners the lot sizes were larger. In the end, even this more limited application of the 60 by 100 foot requirement was rejected by both the lower and appellate courts.
Mayor Alberto G. Santos commented, “I’m disappointed. We believed that the enactment of the ordinance was a proper use of the Town’s zoning powers.”
According to the Mayor, a related ordinance that imposed stricter construction criteria for new construction in all one-family zoned areas in town remains in place and is unaffected by the court decisions. Under that ordinance, builders must comply with tougher bulk and height restrictions, as well as building design criteria such as detached garages.
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