Jacobs, Proctor and Waesche. The opinion of the court was delivered by Waesche, J.s.c.
This is an appeal from a judgment entered in the Superior Court, Law Division, affirming the action of the Board of Adjustment of the City of East Orange refusing to recommend to the governing body the grant of a variance in the zoning regulations to permit a structure and use in a district restricted against such structure and use.
The appellant, Anna M. H. Beck, is the owner of a parcel of land and premises situated on the northwesterly corner of North Grove Street and New Street in the City of East Orange. This plot of land has a frontage of 100 feet on North Grove Street, and a frontage of 152 feet on New Street. It is approximately rectangular in shape. The improvements consist of an old 2 1/2-story, frame, one-family dwelling.
The premises are located in a large volume residence zone. In residential zones, motor vehicle service stations and commercial parking of automobiles are prohibited by the zoning ordinance of East Orange.
Appellant applied to the Acting Building Inspector of the City of East Orange for a permit to construct on the aforesaid plot of land a motor vehicle service station, and to use a portion of said plot for the commercial parking of motor vehicles. The acting building inspector, on October 5, 1949, refused to issue the permit because such construction and uses were not permitted by the zoning ordinance. The appellant then appealed to the board of adjustment, but the said board, on December 14, 1949, after a hearing, also refused to grant the permit and dismissed the appeal.
The appellant contends that the refusal to allow her to construct and use the premises for a motor vehicle service station and for commercial parking of motor vehicles is an
unreasonable, unwarranted and arbitrary exercise of the police powers pertaining to zoning, and constitutes an unnecessary and unjust invasion of appellant's private property rights.
North Grove Street runs in a general north and south direction. For several blocks north from the premises in question, North Grove Street is in a residential zone. South from the premises in question, North Grove Street is in a residential zone for approximately one block. New Street runs in a general westerly direction from North Grove Street, and is four or five blocks long. New Street is in a residential zone, except for a small area at its westerly end. In fact, the area for several blocks east, north, and west of the premises in question is, in general, a residential neighborhood and zoned for that purpose. The nearest business zone to the premises in question is about one block south of the premises.
Appellant points out, in her brief, that the opinion of the Superior Court, Law Division, affirming the action of the board of adjustment, cites paragraph (c) of R.S. 40:55-39 as containing the statutory authority under which the board of adjustment may grant a variance from the regulations of the zoning ordinance. Whereas, the appellant contends that the board of adjustment, under the facts of this case, could only have acted, and should have acted, pursuant to the authority contained in paragraph (d) of R.S. 40:55-39. The powers given to boards of adjustment by paragraph (c) of R.S. 40:55-39, and those given by paragraph (d) of the said section, are different. Section 40:55-39 of the Revised Statutes was amended by chapter 242 of the Laws of 1949, which amendment took effect May 25, 1949. Paragraph (c) of this section of the statute, as amended, authorizes and empowers boards of adjustment to grant a variance from the limitations and restrictions of a zoning ordinance only when by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the ordinance, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition
the strict application of any regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of the property. Paragraph (d) of section 40:55-39, as amended, authorizes and empowers boards of adjustment, in particular cases and for special reasons, to recommend to the governing body of the municipality the granting of a variance to allow a structure or use ...