On appeal from Superior Court, Law Division, whose opinion is reported in 6 N.J. Super. 474.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is an appeal from a judgment of the Superior Court, Law Division, affirming the action of the Board of Adjustment of the Borough of Rutherford denying the plaintiff a variance from a zoning ordinance to permit the erection of a motor vehicle service station in a residential district. The appeal was taken to the Superior Court, Appellate Division, but has been certified for hearing here on our own motion.
The plaintiff owns a plot of vacant land located at the northwesterly corner of State Highway Route No. 17 and Nevins Street. The plot has a frontage on Route No. 17 of 216 feet and a frontage on Nevins Street of 90 feet and lies within a district restricted to residential use by a zoning ordinance adopted by the Borough on July 16, 1931. The land was purchased by the plaintiff and one Joseph Lanza on May 2, 1946, for the sum of $1,800. On February 9, 1949, the plaintiff purchased Lanza's one-half interest therein for the sum of $1,500 and on March 30, 1949, applied to the Borough's Building Inspector for a permit to erect a motor vehicle service station on the land. The application was denied and an appeal was taken to the Board of Adjustment for a variance from the requirements of the zoning ordinance. The requested relief was denied and an action in lieu of the former prerogative writ of certiorari was then instituted in the Superior Court, Law Division, to review the decision of the Board of Adjustment. The court affirmed the decision of the Board of Adjustment and dismissed the plaintiff's action. The present appeal stems from the latter judgment.
The plaintiff contends that a strict application of the ordinance to his land causes an undue hardship within the meaning of R.S. 40:55-39(c) as amended by L. 1948, c.
305. His proofs consisted of his own testimony to the effect that he had been engaged in the real estate business for 12 years; that his efforts to sell his land for residential purposes had been unavailing and that in his opinion the land in question is not suitable for residential use because of its frontage on Route No. 17 which is a heavily traveled super-highway. His opinion was corroborated by the opinion of another real estate broker. A large number of homeowners and residents in the neighborhood strenuously objected to the granting of the requested variance and stated that they had purchased their properties in reliance upon the zoning ordinance restricting the area to residential use. It is noted that the plaintiff, a realtor, purchased the land approximately 15 years after the adoption of the ordinance and despite testimony on his behalf that efforts to sell the land for two years had been unfruitful, he increased his investment in the land by purchasing Lanza's one-half interest therein on February 9, 1949, less than two months before making his application for a permit to erect a motor vehicle service station. Although the fact that the acquisition of a one-half interest in the land subsequent to the adoption of the ordinance, knowledge of which he is presumed to have possessed, and his recent purchase of the remaining one-half interest after his alleged fruitless efforts to sell the land are not conclusive they are material elements to be considered in determining the existence of unnecessary hardship. In Aschenbach v. Inhabitants of City of Plainfield, 121 N.J.L. 598 (Sup. Ct. 1939); affirmed on opinion below, 123 N.J.L. 265 (E. & A. 1939), the following language was used and appears to be appropriate to the case sub judice, 121 N.J.L., at page 599:
"The property was zoned against the use of property as desired by prosecutor when he purchased it and if he did not know it he could easily have ascertained the facts. He quite probably knew of it and purchased with his eyes open, hoping to have an exception made and secured the permit. His failure, therefore, cannot be said to have worked an undue hardship under the circumstances."
The location of the plaintiff's land with respect to surrounding lands and premises is as follows: To the north of plaintiff's
land, on the westerly side of Route No. 17, for a distance of approximately 734 feet to East Pierrepont Avenue, there is vacant land; a dwelling house is located at the corner of Route No. 17 and East Pierrepont Avenue, facing East Pierrepont Avenue. To the south of plaintiff's land, at a distance of 140 feet from Nevins Street, on the westerly side of Route No. 17 a dwelling house is located; the intervening lands are unoccupied. On the easterly side of Route No. 17, directly opposite the plaintiff's land is a strip of hard vacant land, averaging in depth from 100 feet to 120 feet, running northerly from Nevins Street 520 feet and southerly from said street 440 feet or a total of 960 feet, to the rear of which strip of land is marsh land. Elycroft Parkway is the first street to the west of the plaintiff's land; it is composed entirely of one-family residences. The entire area thus described is within the residential zone as circumscribed by the ordinance. The only exception to a strict use of the area for residential purposes is the existence of a dairy farm on the easterly side of Route No. 17, commencing approximately 520 feet northerly from Nevins Street and running along Route No. 17 in a northerly direction for approximately 1,000 feet. The dairy and its predecessors occupied the said location prior to the adoption of the zoning ordinance. Additionally, it appears that a variance was granted on August 8, 1949, to permit a milk bar on land located on the easterly side of Route No. 17, approximately 170 feet north of plaintiff's land, but that the proposed milk bar has not as yet been erected.
The plaintiff contends that the presence of Route No. 17 has destroyed the residential potentiality of his land and the lands of others fronting on the highway. This argument is predicated upon the thesis that the entire area fronting on Route No. 17 is burdened by the restriction. In Brandon v. Board of Com'rs. of Town of Montclair, 124 N.J.L. 135 (Sup. Ct. 1940); affirmed, 125 N.J.L. 367 (E. & A. 1940), it was decided that a finding of "unnecessary hardship" to an ...