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Herman v. Board of Adjustment of Township of Parsippany-Troy Hills

Decided: December 29, 1953.

FANNIE D. HERMAN, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF PARSIPPANY-TROY HILLS, MORRIS COUNTY, NEW JERSEY, DEFENDANT-RESPONDENT



Jayne, Francis and Smalley. The opinion of the court was delivered by Jayne, S.j.a.d.

Jayne

[29 NJSuper Page 166] The authority to vary the application of general zoning regulations and restrictions should be very moderately exercised. Sitgreaves v. Board of Adjustment of Nutley , 136 N.J.L. 21, 26 (Sup. Ct. 1947); Lumund v. Bd. of Adjustment of Borough of Rutherford , 4 N.J. 577, 585 (1950); Brandt v. Zoning Bd. of Adjustment, Mt. Holly Tp. , 16 N.J. Super. 113 (App. Div. 1951). The board of adjustment exercises quasi -judicial functions which are in their essence discretionary and guided by the principle and policy of the applicable statutes and ordinances. Potts v. Board of Adjustment of Princeton , 133 N.J.L. 230, 238

(Sup. Ct. 1945); Monmouth Lumber Co. v. Ocean Township , 9 N.J. 64, 76 (1952); Ward v. Scott , 11 N.J. 117, 121 (1952). A landowner seeking a variance from the terms of a zoning ordinance on the ground of an exceptional and undue hardship has the burden of establishing the existence of the alleged unjust situation. Home Builders Ass'n of Northern N.J. v. Paramus Bor. , 7 N.J. 335 (1951). The board's denial of a variance is presumptively correct and proper and the party impugning the determination on appellate review encounters the burden of proving to the contrary. Rexon v. Bd. of Adjustment, Haddonfield , 10 N.J. 1 (1952). The appellate inquiry is whether the board acted reasonably upon the evidence presented to it, and its decision will be sustained in the absence of an affirmative disclosure that it was unreasonable, arbitrary or capricious. Marrocco v. Bd. of Adjustment of City of Passaic , 5 N.J. Super. 94 (App. Div. 1949), certif. denied 3 N.J. 379 (1949); Rexon v. Bd. of Adjustment, Haddonfield, supra. In the present case the Law Division resolved that the action of the Board of adjustment of the Township of Parsippany-Troy Hills, Morris County, in denying the plaintiff's application for a variance was reasonable in the circumstances disclosed by the evidence. From that judgment the plaintiff appeals.

The factual structure upon which the determination of the board and the accordant decision of the Law Division were placed can be revealed by an epitome of the significant events marshaled in a chronological sequence.

A map displaying the lots, blocks, streets and roads, with their measurements and identifying designations, of the tract of land of Lake Intervale Corporation was approved by the township committee on June 9, 1941 and filed on July 11, 1941 in the office of the county clerk. The particular lot with which we are concerned in the present litigation, having the unpropitious number 13, is delineated on the map as having a frontage of 51.66 feet and a depth of 129.15 feet.

Zoning first received official treatment in the township in 1945 and by an amendment adopted in 1948 lots within the

municipality which had been theretofore plotted on maps duly filed, as had that of the Lake Intervale Corporation, having not less than a frontage of 50 feet and an area of 7,500 square feet were excluded from the general restrictive provisions of the zoning ordinance. It may be noticed that lot No. 13 did not embrace an area of 7,500 square feet.

At a mortgage foreclosure sale in November 1949 the Reid Development Corporation submitted to the sheriff a bid to acquire 332 of the lots including lot No. 13. The conveyance was not consummated until February 1950 and the deed appears to have been recorded March 10, 1950. In January 1950, intermediate the sheriff's sale and the date of its consummation, an amendment of the zoning ordinance was introduced which by its terms would forbid the construction of a dwelling house on any lot with a frontage and area such as those of lot No. 13 in the Class A residential zone in which among numerous others lot No. 13 was situate. Something caused procrastination, for although the proposed amendment was approved on its first reading in February 1950, it was not ultimately adopted on final reading until October 3, 1950.

Again a significant occurrence intervened. On May 2, 1950 Reid Development Corporation, of which corporate entity Mr. Abraham M. Herman, an attorney and counsellor-at-law, is secretary, treasurer, and owner of, he says, "close to 50 percent" of the capital stock, conveyed by an instrument so dated to the plaintiff, Fannie D. Herman, the wife of Abraham M. Herman, 90 of the vacant lots, including No. 13. This deed was not promptly recorded but it arrived at the county clerk's office for recording on September 27, 1950 which, quite fortuitously or not, happened to be six days before the final passage of the amendment of the zoning ordinance.

The deed has some interesting and engaging aspects. It bears United States documentary stamps of 55 cents. It purports to convey to the grantee a conspicuously inordinate number of the 90 lots, of which each lot of a frontage of 51 feet is interwoven alternately on the map between a lot

owned by the Reid Development Corporation. Yes, the conveyance has the apparent characteristics of ...


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