On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Jacobs and Brennan. For affirmance -- Justices Oliphant and Burling. The opinion of the court was delivered by William J. Brennan, Jr., J. Oliphant, J. (dissenting). Mr. Justice Burling authorizes me to state that he concurs in this dissent.
[9 NJ Page 338] Determining that "by reason of the exceptional and peculiar shape of the premises and by reason of non-access to the rear of said premises," the strict application of the municipal zoning ordinance would result in undue hardship upon defendant owners, the Board of Adjustment of the Township of Cranford granted a variance permitting the construction of a garden-type apartment project of eight buildings with 140 residential units upon 9 1/2 acres of unimproved land in a district classified as Residence A limited to single-family dwellings. Plaintiff, a neighboring property owner, brought this action in lieu of prerogative writ to set aside the variance as not within the authority conferred upon local boards by subdivision (c) of R.S. 40:55-39 as amended (L. 1948, c. 305, p. 1223; L. 1949, c. 242, p.
779). The Law Division sustained the local board. Plaintiff's appeal to the Appellate Division from the ensuing judgment was certified by this court of its own motion.
Defendant owners acquired the property in two parcels. The first parcel, 3 1/2 acres with a frontage of approximately 423 feet on the north side of Lincoln Avenue and having an irregular depth, was purchased in 1944. East of this parcel is the residential property of two of the defendants, at 371 Lincoln Avenue, which has a common boundary with the parcel except that in depth the parcel extends northerly toward the Rahway River for some distance beyond said defendants' rear or north line. The second parcel, six acres, which is generally rectangular in appearance, was bought in 1946 and is east of and joins the first parcel where the latter extends beyond the mentioned rear property line. It has no access to Lincoln Avenue except across the first parcel, being entirely north of said rear line and also of the rear property lines of several of the neighboring residential properties to the east. The two parcels as one piece comprise a considerable portion of an area which lies within the apex of a triangle formed by Lincoln Avenue and the Rahway River as the sides and Centennial Avenue as the base. The assembling of the parcels results in an irregularly shaped piece of property which was considered by the local board as exceptional and as satisfying the statutory requisite of an exceptional shape entitling the owners to the variance granted.
After acquiring the two parcels the defendant owners deeded a strip along the west and north borders to the township and to the Union County Park Commission, starting at Lincoln Avenue and curving along the rear lines of both parcels. Defendants claim that the township and the park commission agreed to construct a street thereon to connect with a street to be constructed along the river to provide a throughway from Lincoln Avenue to South Avenue and to give access to the two parcels from the rear. The public bodies have not constructed the street and the local board concluded that the owners are now denied access to their
property and that this state of facts constitutes an exceptional situation or condition of the property also warranting the variance granted.
There was evidence of several nonconforming uses in the area, including some apartment structures nearby. However, the owners did not attack the reasonableness of the zoning ordinance in its application to their property. Cf. Birkfield Realty Co. v. Board of Com'rs. of City of Orange, 12 N.J. Super. 192 (App. Div. 1951), certif. den. 8 N.J. 319 (1951). They chose to seek a variance from its strict application after unsuccessfully applying to the governing body of the Township for a permit to construct their proposed project.
It is basic to the fundamental purpose of zoning that the power of a local board under subdivision (c) of R.S. 40:55-39 to grant variances should be exercised sparingly and only in exceptional circumstances, and ordinarily only when relief can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance," provided always the proofs reasonably establish that strict application of the zoning ordinance results in an unnecessary and unjust interference with the rights of private property in the light of a situation peculiar to the particular property among properties generally of the district. Lumund v. Board of Adjustment of Rutherford, 4 N.J. 577 (1950); Protomastro v. Board of Adjustment of City of Hoboken, 3 N.J. 494 (1950); Brandon v. Montclair, 124 N.J.L. 135 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940). The power must be exercised consonant with the duty laid upon the local board to protect the integrity of the general scheme from substantial impairment. A grant of variance which has the effect of frustrating the general scheme and is tantamount to an usurpation of the legislative power reserved to the governing body of the municipality to amend or revise the plan (R.S. 40:55-35 as amended by L. 1948, c. 305, p. 1222) cannot be sustained. Brandon v. Montclair, supra. Subdivision (c) confines the permissible exercise of the power
to the allowance of relief in favor of the owner of a specific piece of property where by reason of exceptional narrowness, shallowness or shape at the time of the enactment of the regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of the regulation would result in undue hardship upon the owner, and relief can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the regulation. 165 Augusta Street, Inc., v. Board of Adjustment of the Town of Irvington, 9 N.J. 259 (1952).
The instant variance is wholly lacking in a reasonable basis and was plainly beyond the local board's power to grant. We consider it significant that the determination contains no express finding that the relief could be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan. Subdivision (c) cannot be interpreted to contemplate that a 9 1/2-acre tract may be considered "a specific piece of property" subject to the power of the local board to authorize a variance when, so far as appears, development of the zone has not been of single-family dwellings upon large tracts, or even partly so, but has emphasized the construction of such dwellings upon moderate sized lots. Determination of whether a given piece of property is "a specific piece of property" within the meaning of the statute properly the subject of consideration for a variance should take into account its size in relation to the sizes generally of pieces of property in the zone devoted to the permitted use. We regard such an interpretation of subdivision (c) as required by the statutory policy to control and limit variances within narrow limits in ...