Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.s.c.
Certiorari was allowed by the former Supreme Court to review the action of the Board of Adjustment of the Borough of Fort Lee denying plaintiff's application for a variance from the local Zoning Ordinance to permit plaintiff to erect and operate a milk bar building on her property. Preliminarily, plaintiff applied to the Building Inspector of the Borough of Fort Lee for a permit to construct a milk bar. The Building Inspector refused to grant the permit because the property was zoned for one-family residential purposes only.
An extended recital of the factual situation is not necessary and may be summarized briefly as follows: Plaintiff's property consists of a triangular shaped tract of land bounded on its three sides by three state highways known as Palisade Avenue, Route 5 and Route S-1-A, fronting on Palisade Avenue approximately 125 feet, 242 feet on Route S-1-A and 250 feet on an unopened street known as Euclid Avenue, which bisects the entire triangle. The remainder of the triangle, which is not owned by plaintiff, is occupied by a gasoline station. The entire plot is restricted by the borough zoning ordinance to one-family dwellings. Plaintiff's property is vacant land except for an old burned-out real estate office which has not been used for many years. The locus was changed from a business zone to a one-family dwelling zone in 1939. At that
time numerous businesses operating in the vicinity continued to function as non-conforming uses. These consist mainly of night clubs, gasoline stations, bars and hot dog stands. Plaintiff purchased her property subsequent to the adoption of the present zoning ordinance. The matter was heard by the Board of Adjustment and its judgment was adverse to plaintiff. The following excerpt from said judgment discloses the reasons for its determination:
"* * * After carefully considering your request to change the above plot from Residential to Business, and erecting a Milkbar facing Palisade Avenue, the Board of Adjustment and Appeal find that practically all of the adjoining property owners are very much opposed to this change. They all purchased their properties with the understanding that it was zoned for residences only, and your client bought this property recently knowing that it was not zoned for business purposes."
At the hearing plaintiff produced as witnesses real estate agents of long experience with properties in the neighborhood involved in the litigation. They all testified that, in their opinion, plaintiff's property was unsuitable for other than business purposes, and that the erection of the proposed milk bar would not result in depreciating property values in the immediate vicinity. Their testimony is clear and convincing. Defendants also offered real estate agents who testified that plaintiff's property had residential possibilities, but our review of their testimony leads us to the conclusion that they were not in accord on this issue. An excerpt from the testimony of Michael J. Ryan, a real estate agent offered by defendants, is illustrative. On cross-examination he testified:
"Q. Will you tell this Board, Mr. Ryan, whether it's suitable for one-family residential purposes or not. A. It isn't very desirable.
"Q. Would you recommend that be used for one-family residential purposes to me or any other of your clients? A. No, I don't think I would. I am referring to parcel number one."
Plaintiff contends that the refusal of the Board of Adjustment constitutes an unnecessary hardship resulting from a literal application of the zoning ordinance to her property, and that the restriction to residential uses bears no reasonable relation to the purposes for which the zoning ordinance was
adopted. Our review of the testimony leads us to concur with these contentions. As was said in the leading case of Brandon v. Board of Com'rs of Town of Montclair , 124 N.J.L. 135, 11 A. 2 d 304 (Sup. Ct. 1940), affd. 125 N.J.L. 367:
"Due to the necessity of generality in the subdivision of the municipality into districts under the zoning power, especial hardship ofttimes ensues unnecessarily and unreasonably to individual land-owners; and the function of the board of adjustment under the statute is, through a variance, to relieve from such consequences, and thus to avert what would otherwise take the category of an unwarranted interference with the right of private property. Dowsey v. Kensington , 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642. Such use restrictions are not reasonable unless fairly necessary for the attainment of one or more of the intents set forth in section 40:55-32, supra; and, while the general ...