Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
These appeals arise by reason of a variance granted by the Board of Adjustment of South Orange permitting the subdivision of the Tzeses property, commonly known as 175 Irving Avenue, South Orange, N.J., into two 73 1/2-foot-front lots and the erection of a house on each lot; and because of the subsequent action of the Board of Trustees of South Orange in declaring the action of the board of adjustment illegal and directing the building inspector to deny the building permits.
The lot in question is shaped in the form of a reversed and inverted "L," whose vertical fronts 147 feet on the north side of Irving Avenue and is about 300 feet deep. The horizontal of the "L" is a 46' x 143' strip running westwardly and at right angles from the vertical, along the rear of the adjoining premises owned by the plaintiffs Rush and known as 163 Irving Avenue. This strip of land connects with a 14-foot private right-of-way on the far side of the Rush property giving access to Irving Avenue. The entire L-shaped tract contains over 51,000 square feet.
No. 175 Irving Avenue is located in the Montrose section of South Orange, which comprises a rather large portion of the entire village and contains many fine homes located on large plots. The property is a vacant lot on which there once stood a one-family residence purchased by John C. Brahney and Marie C. Brahney, his wife, in November 1937. The Brahneys demolished the dwelling and accessory buildings some time after they took title. The lot is located near the center of a large district designated by the South Orange zoning ordinance, adopted in 1949, as a "Residence A-100 District." The zoning ordinance permits only one-family residences in such a district and requires lots to have a minimum frontage of 100 feet and a minimum area of 10,000 square feet.
At the beginning of 1951 the owner of 175 Irving Avenue was Marie C. Brahney, widow. She had a tentative contract to sell the property to Arthur Tzeses and Leo Tzeses, doing business as Tzeses Bros. The Tzeses brothers, acting in the name of Marie C. Brahney, applied to the board of adjustment for a variance permitting the erection of three one-family houses upon the property. The tract was to be divided into three lots, the first having a frontage of 73 1/2 feet on Irving Avenue and a depth of 200 feet, the second being exactly like the first, and the third being in the rear of these two lots, having no street frontage but with access to Irving Avenue over the mentioned private right-of-way. The Tzeses' application was heard by the board of adjustment on January 12, 1951. There were objections from a number of property owners in the neighborhood, and in addition a petition signed by 12 owners and residents in the vicinity was received, urging that the application be refused because it would violate the zoning plan and in the future make it more difficult to maintain the high quality of the neighborhood. Following the hearing, the board of adjustment, pursuant to R.S. 40:55-39(d), as amended, recommended to the board of trustees that the variance be granted because strict adherence to the provisions of the zoning ordinance would work undue hardship on the owner in that it would compel him to use 51,012 square feet for the erection of only a single dwelling. The board of adjustment noted that the proposed division would make three plots, two containing 14,720 square feet each and the third 21,572 square feet, each of which would be larger than the 10,000-square-foot plots contemplated by the zoning ordinance.
The board of trustees of the village reviewed the recommendation of the board of adjustment, inspected the property and studied the tax map for the purpose of comparing other residential properties in the area. At its regular meeting held February 19, 1951, the board of trustees by formal resolution disapproved the recommendation and denied the
application for subdividing the property. No appeal was taken from that determination.
On March 6, 1951 the Tzeses brothers entered into a written contract with Marie C. Brahney for the purchase of 175 Irving Avenue, the contract being conditional upon the granting of a variance by the board of adjustment to permit subdivision of the tract. Thereafter, on May 23, 1951, they applied to the building inspector of South Orange for two building permits, which were denied. On June 7, 1951 they made a new application to the board of adjustment, requesting a variance permitting the erection of two one-family houses, the frontage to be equally divided between them, making two lots of approximately 73-foot frontage and 200-foot depth. This application made no mention of the area remaining in the rear, but it is to be noted that if the application had been granted as applied for, it would of necessity have created a third lot, thus making all three lots identical with those proposed in the first application heard on January 12, 1951. The Tzeses then took title to the premises on June 22, 1951, the conveyance being without reservation or reference to the granting of a variance.
The board of adjustment held a hearing on the Tzeses' application on June 29, 1951. A number of property owners in the neighborhood spoke in opposition to the granting of the variance, and the board had before it a petition signed by 34 residents or property owners of the vicinity opposing the application. After hearing the respective counsel for the village, the owners and the objectors, the board suggested and permitted the application to be amended so that it included the entire premises. The amended application called for the subdivision of 175 Irving Avenue into two lots, each having a frontage of 73 1/2 feet and running the depth of the lot, with two 23-foot-wide strips across the rear leading from each lot to the private right-of-way giving access to Irving Avenue. The board then granted a variance authorizing this subdivision, the result of which was to create two lots of approximately 26,000-square-foot area. In allowing the
variance, the board acted pursuant to R.S. 40:55-39(c), as amended, rather than under R.S. 40:55-39(d), as it had on the previous occasion when it recommended a variance to the village board of trustees.
At a meeting specially called for July 2, 1951, the board of trustees considered the action which had been taken three days before by the board of adjustment. It had before it the record of the decision of the board of adjustment as it then stood. This record contained none of the findings called for by R.S. 40:55-39(c), as amended. However, at some date subsequent to July 2, 1951, and in a manner which still remains unexplained, the statement of the board of adjustment was enlarged to read that
"the application as amended be adopted without recommendation to the Board of Trustees as the property in question contains over 52,000 square feet presented special conditions unique to this property alone, as distinguished from conditions affecting the whole neighborhood, and the special reason for the Board's action is the exceptional and undue hardship placed upon the owners thereof if strict application of the ordinance be adhered to in that only one dwelling could be erected thereon, while a number of the property owners in the immediate vicinity can or have erected a dwelling on approximately 10,000 square feet."
The board of trustees at its special meeting heard counsel for the applicant as well as counsel for the village. The latter argued that the decision of the board of adjustment contained none of the findings required by the statute which were a necessary prerequisite to valid action, and that there was no showing of exceptional or undue hardship upon the owner of the property. The trustees then unanimously adopted a resolution which, after noting the absence of statutory findings, declared the action of the board of adjustment illegal for lack of jurisdiction, and directed the building inspector to withhold issuing any building permit to the Tzeses brothers except one permitting the use of the property as a single lot on which a single one-family residence might be erected in accordance with the zoning ordinance. Thereafter Tzeses Bros., on July 31, 1951, applied for a building permit in
accordance with the decision of the board of adjustment. The permit was denied.
On July 27, 1951 the plaintiffs Rush, owners of 163 Irving Avenue, filed their complaint in lieu of prerogative writ against the board of adjustment, the building inspector and Tzeses Bros., to test the action of the board of adjustment in granting the variance. On August 1, 1951 the Tzeses brothers, in turn, filed their complaint in lieu of prerogative writ against the village board of trustees and the building inspector, to test the validity of the resolution adopted by the board of trustees on July 2, 1951. After answers had been filed the two cases were, by orders dated September 7, 1951, "consolidated for the purposes of pretrial and trial." While both cases were pending and prior to hearing, the board of adjustment, having filed an answer ...