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Beirn v. Morris

Decided: March 8, 1954.


On certified appeal from the Law Division to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Heher, J.


In this proceeding in lieu of the prerogative writ of certiorari, to review a resolution adopted January 22, 1953 by the defendant board of adjustment refusing the plaintiff landowners a variance under R.S. 1937, 40:55-39(c), as amended, from the terms of a local zoning regulation forbidding the particular use, there was judgment of affirmance, which also adjudged "valid" the zoning regulation itself, "in so far as it relates to the property of plaintiffs."

The case is here on our own certification of the landowners' appeal to the Appellate Division.

At base, the grievance asserted is that the challenged local action was arbitrary and unreasonable and a "practical confiscation"

of plaintiffs' lands. It is said, in a word, that plaintiffs sustained the onus of proof of the "extraordinary and exceptional situation or condition" of the particular plot that would entail "peculiar and exceptional practical difficulties" or "exceptional and undue hardship" to the landowners were the regulation to be strictly enforced, relievable without "substantial detriment to the public good" or "impairment" of the "intent and purpose of the zone plan and zoning ordinance," and so the standard of action laid down in the cited section 40:55-39(c) is met.

The locus is at the northeast corner of West Seventh and Walnut Streets, and is designated on the township tax map as Lot 43, in Block 45. Walnut Street intersects West Seventh Street at an angle of almost 45 degrees, and all abutting lots, including plaintiffs', extend from Walnut Street at right angles, thus making for varying side lines. Plaintiffs' parcel has a diagonal frontage of 101.91 feet on the northerly side of Walnut Street; its northerly side has a depth of 275 feet, running at a right angle from West Seventh Street; its southerly side has a parallel depth of 211.87 feet, and there is a uniform width of 80 feet throughout the latter depth. There is no street parallel to Walnut Street. Plaintiffs acquired the lot by purchase on August 4, 1952, intending to erect thereon a cinder block garage, 20 feet high, for the housing of 12 buses employed in the performance of existing contracts for the transportation of children to the township's Arbor School and New Market School. But the lot was then, to plaintiffs' knowledge, and is now, situate in a Residence "B" zone delineated by the ordinance, closed to such use. Plaintiffs acquired the land believing, after consultation with "several of the neighbors," that there would not be neighborhood objection to such use.

The ordinance establishes a minimum lot size of 50 ft. x 100 ft.; plaintiffs' lot is 80 ft. x 200 ft., or more; and a master plan is now in process of formulation by the local planning authority which will provide for the upgrading of the subject Arbor section as a residence area, by means, inter alia, of a minimum lot size mandate of 75 ft. x 100 ft.,

or 7,500 square feet for the individual lot, "to avoid overcrowding conditions and difficulty with sanitary facilities," and a revision of the zoning ordinance in keeping with the altered concepts of socio-economic needs and use policy.

We do not find the particular zoning regulation in the appendix. But we have the unchallenged statement in the landowners' brief that under the ordinance a "B" Residence zone "may be used for no other purposes than single-family detached dwellings, non-business clubs and lodges, educational and religious uses, excluding hospitals and sanitariums, except where authorized by the special exception of the Board of Adjustment, and for farms, nurseries or greenhouses." And the brief submitted by the defendant local authority affirms without exception that in zones of this class the ordinance "prohibits a garage, and the use of lots for garage purposes."

These are the circumstances advanced in support of the basic contention that "exceptional and undue hardship" would attend the strict application of the general regulation: Next door, on the northerly side, is the Arbor Fire House and Arbor Rescue Squad building; there is a "combination" gasoline station and confectionery store at the northeast corner of Walnut and West Seventh Streets, and a "combination" garage and gasoline station on the southeast corner of the intersection, in each instance a nonconforming use; there is a one-family dwelling on the southwest corner, "fronting Walnut Street and facing north, away from the intersection"; the existing dwellings are "staggered along Walnut Street in order to be parallel to the side of the lot (and consequently not parallel with the street)," and the "result is that should plaintiffs erect a residence maintaining the same set back, they would be looking out of their dwelling at the middle or toward the rear of the fire house and, because of the peculiar angle of the ...

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