On appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiffs have appealed to this court as of right pursuant to R.R. 1:2-1(b) from the final judgment of the Appellate Division of the Superior Court affirming, but with a dissent, the judgment of the Law Division upholding the refusal of the Board of Adjustment of the Borough of Florham Park to permit a departure from the literal requirements of the borough zoning ordinance; see 41 N.J. Super. 582 (App. Div. 1956).
The property pertinent to the issue before us lies on the westerly side of Lakeview Avenue in Florham Park, Morris County. As originally laid out on the subdivision map of Brooklake Park, filed April 11, 1923, lots 366A and 366B each had a frontage of 50 feet and lot 365A had a frontage of 76.83 feet. The lots are numbered from north to south so that lot 365A adjoins lot 366B on the north and lot 366A adjoins lot 366B on the south.
In 1948 at a time when the zoning ordinance permitted the building of residences on lots with a frontage of only 50 feet, the plaintiffs acquired all of lot 365A with the exception of a strip 13 feet wide along the boundary line of lot 366B and built a house on what was believed to be their 63.83 feet of the lot. Six years later it was discovered that through a surveyor's error, for which the plaintiffs were in nowise responsible, most of that house was erected on lot 366B and on the 13-foot strip of lot 365A, neither of which they owned, and only a very small part was erected on the part of lot 365A that they did own. On August 9, 1954 the plaintiffs acquired lot 366B and the 13-foot strip of 365A, giving them a total continuous frontage on Lakeview Avenue of 126.83 feet.
On August 3, 1954, shortly before this last purchase by the plaintiffs, the Borough of Florham Park adopted a zoning ordinance restricting residential building in this area to lots with a frontage of at least 100 feet and a minimum area of 15,000 square feet. At the time of the adoption of this ordinance and for a period of time before, the most southerly of the three lots mentioned, namely, lot 366A, was owned by Thompson Associates, Inc. We can gather from the record that Thompson Associates, Inc., owned other lots in the area, but on the date of the ordinance creating the new minimum requirements this company did not own any of the property adjoining lot 366A on either side that could be added to the 50 feet of lot 366A to make it a lot which would conform with the new ordinance.
On August 25, 1954, on the application of the plaintiffs, the board of adjustment of the borough granted them a variance permitting the construction of a house on the northerly 50 feet of lot 365A and a house was thereafter built.
Then on September 27, 1954 the plaintiffs purchased lot 366A from Thompson Associates, Inc. It was conceded on oral argument that they did not acquire it at a distress price but paid fair value for it.
On October 18, 1954 the plaintiffs applied to the planning board of the borough for approval of a realignment of the two lines separating the three lots, reducing lot 365A from 76.83 feet to 50 feet, increasing lot 366B from 50 feet to 64.83 feet, and increasing lot 366A from 50 feet to 62 feet. The realignment was approved by that board after a hearing, but with the proviso that "no building permit be issued for lot 366A without further referral to the planning board." This condition was apparently imposed because of an easement held by the borough for a drainage ditch running over lot 366A granted by Thompson Associates, Inc., to the Borough of Florham Park by deed of February 17, 1950 in the following terms:
"* * * to maintain the present stream, brook or ditch now crossing said plots for the disposal of surface waters, and the said
party of second part shall have the right to clean and clear said stream, install pipes in the bed thereof and cover same and -- said party of the second part [that is the borough] shall have the right to go in and upon the premises forever for the purpose of repairing, replacing or relaying any pipes installed. The course of said stream is more particularly described in a survey thereof made by John P. Sliwa, Civil Engineer."
No survey as referred to in the deed was ever located, but there was a drainage ditch that crossed this lot almost diagonally in a natural course.
The effect of the realignment of the lot lines was to bring the house constructed in 1948 and the house that was being constructed pursuant to the variance granted on August 25, 1954 within the boundaries of separate lots (365A and 366B).
Then, on November 1, 1954, after the approval of the realignment of the lot lines by the planning board, the plaintiffs sold lot 366B, as realigned, with the house on it. Thus lot 366A, an undersized lot under the new zoning requirements of 62 feet frontage, was again isolated as it had been when Thompson Associates, Inc., owned it, only now, it was 12 feet wider.
Some months later, in May 1955, the plaintiffs applied to the planning board for approval of a plan with respect to lot 366A showing a proposed change solely within the lot lines of the course of the drainage ditch and the position of a house they proposed to build. The planning board approval was sought pursuant to the proviso imposed by it upon further use of this lot at the time it approved the realignment of lot lines on October 18, 1954. The planning board, at their May 23, 1955 meeting, "stated it would review Mr. Ardolino's request after he * * * asked the Borough Engineer and Secretary of the Board of Health to inspect his property and submit a report to the Planning Board." The record with respect to the planning board stops here, but it appears that the course of the drainage ditch was relocated within the lot lines of 366A. Whether this was done with the consent of the planning board or others does not appear, but it was conceded at the oral argument that the borough was aware that the plaintiffs had in fact altered
the course of the ditch preparatory to building a house but did nothing.
On September 12, 1955 the plaintiffs made application to the building inspector of the borough for a permit to build a house on 62-foot lot 366A and submitted a lot plan showing the drainage ditch in its relocated position. The permit was denied solely on the ground that the width of the lot did not comply with the 100-foot requirement of the new zoning ordinance. The plaintiffs then appealed to the board of adjustment, asking either for a reversal of the action of the building inspector, ...