On appeal from the Supreme Court.
For the prosecutors-respondents, Emil M. Wulster.
For the defendants-appellants, Charles W. Weleck.
The opinion of the court was delivered by
FREUND, J. This appeal is from a judgment of the Supreme Court which set aside a resolution of the Board of Adjustment denying the respondents' application "for an exception or variance from the terms of the zoning ordinance to the end that that portion of petitioners' premises now in the A Zone may be used together with that portion in the B Zone to the end that garden type apartment dwellings * * * may be erected thereon."
The respondents have requested a decision in this matter prior to June 12th next, stating that a mortgage commitment to finance the construction of said buildings expires on that date.
The appellants' original zoning ordinance was adopted in 1923. In 1943, after a study by the local planning board, the ordinance now in effect was adopted and provides inter alia for garden type apartments in an area set aside for that specific purpose located about a mile from the lands in question.
The prosecutors' land, whereon they proposed to build garden type apartments, has a frontage of 187.5 feet on the west side of Center Avenue with a depth of 198.75 feet on the north side of the plot and of 230.6 feet on the south side. By the terms of the present zoning ordinance, that portion of the premises which fronts on the westerly side of Center Avenue, for a depth of 100 feet is in the "A" zone which is restricted to one-family dwellings, while the lands in the rear thereof beginning at a line 100 feet west of the westerly side of Center Avenue, are in the "B" zone, which permits apartments but makes no reference to garden type apartments. The prosecutors' building plan contemplated the erection of two-story garden type apartments in a detached "U" formation; the main building would be in the "B" zone wherein apartment houses are permitted and the side structures would extend 70 feet into the "A" zone which is restricted to one-family dwellings. The prosecutors sought a variance of the zoning ordinance so as to permit the erection of garden type apartments within that portion of their lands which is in zone "A."
After hearing arguments for and against the prosecutors' application, the Board of Adjustment adopted a resolution denying the application for the exception on various grounds, among them being that the "refusal to grant an exception under the zoning ordinance will not result in an unnecessary hardship;" "the present zoning restrictions are not unreasonable;" "all the property along Center Avenue is zoned for one-family houses and is classified as District A on the zoning map;" and that prosecutors "failed to show the present zoning restriction is unreasonable, arbitrary or capricious."
On certiorari, the Supreme Court set aside the resolution of the Board of Adjustment on the ground that the action in refusing the variance "seems arbitrary and capricious." It is from this determination that the municipality appeals.
This case differs from the usual zoning case in that the land upon which buildings are proposed to be erected, is within two zones; one, in which the structures may be erected and the other, in which they are prohibited. Merely because part of the land is in one zone and part in another, the zones being contiguous to each other, is not a sufficient reason for a variance. In Visco v. Plainfield, 136 N.J.L. 659, the prosecutor's lands were located in two zones. The Supreme Court affirmed the action of the Board of ...