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O''Connor v. Mayor and Council of Borough of North Arlington

Decided: March 29, 1949.

ARTHUR J. O'CONNOR AND JOSEPH CALO, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF NORTH ARLINGTON, AND CORDON MOTORS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Review.

Leyden, J.s.c.

Leyden

Plaintiffs challenge the validity of (1) a resolution of the Board of Adjustment recommending the granting of a zoning variance to Cordon Motors, Inc., and (2) the resolution of the mayor and council of defendant borough approving such recommendation, upon the ground there was no proof by the applicant of special reasons which would justify relaxing the strict application of the zoning regulations and thus prevent infliction of exceptional and undue hardship upon the applicant.

The board of adjustment and the borough council acted under the authority granted by statute, R.S. 40:55-39, subdivision d, as amended, P.L. 1948, Chapter 305. The statute, before amendment, was interpreted in Brandon v. Montclair , 124 N.J.L. 135, affirmed 125 N.J.L. 367. Mr. Justice Heher pointed out that the legislative purpose was "to condition the exercise of the power thus saved in subsection d by the particular standard prescribed by subsection c. It is of the essence of the statutory scheme that the board of adjustment shall have exclusive authority, upon appeal in a 'specific case,' to grant 'such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special

conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship,' to the end that 'the spirit of the ordinance shall be observed and substantial justice done.'"

It seems safe to say that while the amendment of 1948 broadened somewhat the power of boards of adjustment, it did not affect the limitations on the exercise of that power as contained in the statute before amendment. The interpretation of the statute in the Brandon case still controls, and the jurisdiction to grant a variance is to be exercised only where, due to special conditions, a literal enforcement of the ordinance would result in exceptional and undue hardship upon the property owner.

There was no proof of special reasons or exceptional and undue hardship before either the board of adjustment or the mayor and council.

The proceedings before the board were brief. The application of Cordon Motors, Inc., to erect a building for the purpose inter alia of selling gasoline, was presented. The discussion took the line that similar variances had been granted and therefore this one should be; tax revenue would be increased; the proposed building would be an asset to the town, and an exception should be made because the applicants were ex-servicemen. Whereupon the board adopted the following resolution:

"WHEREAS after due consideration of this application, a motion was made by George Silcox and seconded by Kurt Akerston that the exception be granted, governed by the following statement: That this building will be built according to the plans presented to the Board and that no gas pumps will be placed in operation until such time as said building is complete in all respects.

"This petition as stated above is approved in the interest of the Borough of North Arlington and subject to the approval of the Mayor and Council."

The matter came on to be heard at a regular meeting of the mayor and council, at which time the applicant and the objectors were heard. No proof was presented of any special reasons or exceptional and undue hardship. After an ...


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