On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This is an appeal from a portion of a judgment of the Superior Court, Law Division, reversing the action of the Board of Adjustment of the Borough of Paramus denying the plaintiff a variance from a zoning ordinance to permit the erection of a commercial building without regard to the setback dictated by that ordinance. The appeal was addressed by the defendants to the Superior Court, Appellate Division, but prior to hearing there, it was certified to us upon our own motion.
The zoning ordinance of the defendant Borough of Paramus was adopted on June 12, 1946. The "Limiting Schedule" annexed thereto and forming a part thereof provided, inter alia, that in "E Industrial" districts buildings should have front yards having a minimum depth of 40 feet from the street line and that in the case of a corner lot "all yards that abut a street line shall be deemed Front Yards and shall have the minimum depth prescribed for a Front Yard in the district in which such structure is to be erected."
Plaintiff acquired title to the parcel of land in question on January 27, 1949. This parcel appears to be an L-shaped
corner lot, having a frontage of 50.92 feet along New Jersey State Highway Route No. 4 and a frontage of 150 feet along Mackay Avenue, and is located in the "E Industrial" district of the defendant borough. Plaintiff made its purchase for the purpose of erecting thereon a specific building for showroom and office or meeting rooms. It had knowledge of the provisions of the zoning ordinance and also knew that the building it had in mind could not be erected on the parcel of land it purchased unless it were to be successful in securing a variance permitting it to build the proposed structure within five feet of the Mackay Avenue street line. Notwithstanding this knowledge plaintiff made its purchase.
On March 8, 1949, plaintiff, having applied for a variance to authorize it to erect its building within 25 feet of State Highway Route No. 4 and within five feet of Mackay Avenue, appeared before the board of adjustment to press that application. There was one representative of the plaintiff who presented its appeal and an attorney for a property owner who resisted the same. The board, after consideration of the plaintiff's application, passed a resolution denying the plaintiff the variance it sought, in which resolution it was further resolved "that the Board of Adjustment does hereby modify said appeal to permit the erection, by the applicant, of a structure having a 25 ft. front yard setback from Mackay Avenue," and that the building inspector "is hereby authorized" to grant the applicant a permit for the construction of a building on the premises in question in accordance with the board's order and the requirements of all other applicable ordinances. Plaintiff did not avail itself of the variance thus granted.
Several months later, but prior to April 11, 1950, the plaintiff made a new application for a variance, again requesting permission to locate its building within five feet of the street line of Mackay Avenue. After a hearing before the board of adjustment on April 11, 1950, and a view of the site by the said board on April 12, 1950, the board concluded that the 40-foot setback from Mackay Avenue would constitute a condition
of hardship on the owner of the property, the 25-foot variance previously granted would allow reasonable use of plaintiff's lot and a five-foot setback from Mackay Avenue would be definitely detrimental to the general character of the neighborhood. The board thereupon, on April 12, 1950, resolved that the new application should be denied. Notice of this action by the board was communicated to the plaintiff on or about May 4, 1950.
Following the receipt of the notice of the board's action of April 12, 1950, the plaintiff instituted this action by complaint in lieu of the prerogative writ of certiorari, filed on June 1, 1950, in the Law Division of the Superior Court. The court, after pretrial order and trial in due course, determined the matter adversely to the plaintiff as to the constitutionality of the Borough's zoning ordinance, and adversely to the defendants as to the granting of the variance sought. Judgment in accord with that determination was filed on January 12, 1951. The defendants appealed from so much of that judgment as was rendered in favor of the plaintiff. The plaintiff entered no appeal from the portion of the judgment upholding the constitutionality of the Paramus zoning ordinance. The defendants' appeal was addressed to the Appellate Division of the Superior Court and while pending there was certified to us upon our own motion as hereinabove stated.
In the questions presented on this appeal, the first point raised by the defendants is that the trial court erred in refusing to consider the effect of the earlier action (i.e., that such earlier action was either dispositive of the matter before the court, or was evidence of the proper exercise of discretion in the later action of the board) of the defendant board of adjustment in granting a variance to permit the plaintiff to build its structure 25 feet from Mackay Avenue (a 15-foot variance from the terms of the ordinance). The trial court rejected defendants' contention on the ground that the board of adjustment in the earlier proceeding had no power under the statute to grant a variance different from [7 NJ Page 341] the one sought. In this respect the trial court was in error. The statute, R.S. 40:55-39, subsection c, as amended by L. 1948, c. 305, sec. 6, in effect (effective August 9, 1948) at the time of the hearing before the board in 1949, empowered the board to authorize "a variance" from the strict application of the zoning ordinance "so as to relieve such difficulties or hardship," i.e., where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of enactment of the zoning ordinance or other extraordinary or exceptional condition of the specific piece of property strict application of the regulation would result in exceptional practical difficulties to, or undue hardship upon, the owner, provided such relief might be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance. The statute as amended in 1948, supra, authorized the board to grant a variance and eliminated the requirement of a recommendation by the board to the governing body of the municipality obtaining under the act prior to the amendment of 1948 where the specific provisions of subsection c were invoked. This was the statute delineating the procedure to be followed by the board at the time of its action in 1949. A further amendment (L. 1949, c. 242, sec. 1) effective in May 1949, after the first determination of the board, merely provided a realignment of the language of R.S. 40:55-39 as amended, supra, so that the proviso stated in subsection c under the 1948 amendment ...