On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For affirmance -- Justice Heher. The opinion of the court was delivered by Burling, J. Heher, J., dissenting.
[9 NJ Page 261] This is a zoning case and is an appeal from a judgment of the Superior Court, Law Division, setting aside a variance granted by the defendant board of adjustment to the defendant Otto Ploetner to permit construction of a gasoline service station on premises owned by the defendant Edith W. Collins (hereinafter called the owner) in
the Town of Irvington. The appeal was addressed to the Appellate Division of the Superior Court, but prior to hearing there certification was granted upon our own motion.
Ploetner, holder of a contract to purchase vacant land designated and known as 681-691 Lyons Avenue, in the Town of Irvington, Essex County, New Jersey, from the title owner and thus himself an equitable owner of said vacant land, presented plans and specifications to the Building Superintendent of the Town of Irvington in order to obtain a building permit for the construction of an automobile service station. This application for a building permit was denied, the only reason for the denial appearing in the record to be the restriction (against use of the land for business purposes) of the local zoning ordinance. Ploetner thereafter applied to the defendant board of adjustment (hereinafter called the board) for a variance. Hearings upon his application were conducted by the board, beginning on October 4, 1949, and continuing from time to time to August 15, 1950, on which date the board granted the variance sought. The plaintiffs, one an owner of the apartment property abutting the subject property on Augusta Street, and the other two being owners of properties located on the opposite side of Lyons Avenue, and who were among the objectors to the application for the variance in the proceedings before the board, filed a complaint in the Superior Court, Law Division, seeking to have the resolution of the board, by which the variance was granted, reversed. The owner of the legal title was named as a party, but was not served with plaintiffs' complaint in the Superior Court, Law Division, and has not otherwise appeared. Several issues were framed in the pretrial order and were determined by the trial court, but these need not be recited in detail in view of the nature of this appeal. The Superior Court, Law Division, on July 5, 1951, entered judgment for the plaintiffs, setting aside the board's resolution of August 15, 1950. The defendants, Ploetner and members of the board, appealed that judgment to the Superior Court, Appellate Division, but prior to
hearing there certification was granted on our own motion, as above stated.
The substance of the appeal from the statement of questions involved appears to be the sole question whether the trial court properly applied the pertinent statutes and principles of law relating to zoning matters to the factual situation exhibited by the record in this case. We find that the trial court erred therein.
The board, in this case, acted pursuant to the authority vested in it by R.S. 40:55-39 c as amended by L. 1948, c. 305 and by L. 1949, c. 242. This statutory provision authorizes a board of adjustment under stated circumstances to grant a variance without the necessity of recommendation thereof to the municipal governing body. This provision has been considered by this court several times and as amended in 1948 and 1949 has been construed by this court. It is now settled that under subparagraph (c) of R.S. 40:55-39, as amended, in order to support the grant of a variance there must be a finding of unnecessary hardship to the individual landowner. V.F. Zahodiakin, etc., Corp. v. Bd. of Adjustment, Summit, 8 N.J. 386 (1952); Home Builders Ass'n. of Northern N.J. v. Paramus, 7 N.J. 335, 341-342 (1951); Lumund v. Bd. of Adjustment of Borough of Rutherford, 4 N.J. 577, 580 (1950); Cf. Protomastro v. Bd. of Adjustment of City of Hoboken, 3 N.J. 494, 500, 501 (1950). Compare Monmouth Lumber Company v. Township of Ocean, 9 N.J. 64 (1952). It is suggested in the arguments advanced on this appeal that the amended statute provides two criteria for grant of variance by a zoning board of adjustment, namely, "undue hardship" and "peculiar and exceptional practical difficulties." We perceive no practical difference between the two quoted clauses as used in this portion of R.S. 40:55-39 as amended. The former is necessarily inclusive of the latter, for where peculiar and exceptional practical difficulties exist undue hardship also exists. The remainder of the language of amended subparagraph (c) of R.S. 40:55-39 constitutes a legislative declaration of
elements of proof of a restrictive nature, a limitation upon the authority of the board of adjustment to grant a variance on the ground of unnecessary hardship. These factors are expressed in two categories: exceptional narrowness, shallowness or shape of a specific property at the time of the enactment of the regulation, or other extraordinary and exceptional situation or condition of such piece of property.
The evidence adduced in this case shows unnecessary hardship by virtue of the extraordinary and exceptional situation or condition of the property in question. The record shows that Lyons Avenue is devoted to business and industry on both sides of the thoroughfare, for several blocks in both directions, with the exception of the lot in question (which is zoned partly for business and partly for "B" residential use), Irvington Park, and a portion of the opposite two blocks (facing defendant's lot and Irvington Park) which are zoned "D" residential. Immediately to the rear of defendant's lot is a 40-family apartment house (fronting on Augusta Street). The defendants' proof disclosed that the property in question is vacant land, not usable or saleable for residential use. Although the plaintiffs, in opposition, introduced proofs tending to show that a gasoline service station could be erected on the portion of the property zoned for business and that the portion in the "B" zone could be used for the erection of a multiple-family residence, there was so raised only a conflict of testimony on these factors. And although plaintiffs offered testimony that the area is among the good residential areas remaining in the municipality, the defendant introduced evidence that the general neighborhood has changed and is used predominantly for business purposes; that the property is split by the zone ...