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Phillips v. Board of Adjustment of Town of Westfield

Decided: April 11, 1957.

CHARLES ALAN PHILLIPS AND ELEANOR C. PHILLIPS, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD, ETC., ET AL., DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

[44 NJSuper Page 493] The defendants appeal from a judgment of the Law Division of this Court, setting aside resolutions adopted by the Board of Adjustment of the

Town of Westfield granting the application of the defendant, Margaret D. Eckert, for permission to erect a one-family dwelling on premises located on an unimproved street.

The facts are not in dispute. The defendants, Herbert R. Eckert, Sr. and Margaret D. Eckert, his wife, are the owners of two vacant lots known as No. 612 and No. 620 Maine Street, each having a frontage of 80 feet. These lots adjoin the rear of plaintiffs' corner residential property which fronts on Rahway Avenue and runs along Maine Street for a distance of 109 feet. Maine Street is a paper street dedicated and accepted by the municipality, and is shown on the town's master plan and tax map. For its entire length of 835 feet, it is unimproved, being neither paved nor curbed in accordance with town standards, and the area is described as being "overgrown" and "half-wooded." However, 20 lots, each 100 feet in depth and of various widths, have been laid out along it.

The Eckerts applied to the building inspector for permission to erect a one-family dwelling on No. 620. The application was denied for the reason that it was found to offend N.J.S.A. 40:55-1.39, which prohibits the grant of a permit to build a dwelling on an unimproved street. The Eckerts then appealed to the local board of adjustment under N.J.S.A. 40:55-1.40, which provides that:

"Where the enforcement of sections nine and ten of this act would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the structure to be related to a street, the applicant for the permit may appeal from the decision of the administrative officer having charge of the issuance of permits to the board of adjustment in any municipality which has established such a board, or, in municipalities where there is no board of adjustment to the governing body, and the same provisions shall apply to such appeals and to such board or body as are provided in cases of appeals in respect to zoning regulations. The board may in determining any such appeal, make reasonable exceptions and issue a permit subject to conditions that will assure adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the official map or on a master plan of streets duly adopted by a planning

board. Where such master plan of streets exists, the board of adjustment or governing body, as the case may be, shall refer the application to the planning board for report and recommendation before taking action."

The "act" referred to in the forepart of this excerpt is the "Official Map and Building Permit Act," L. 1953, c. 434, p. 2186, of which section 11 is quoted. Its purpose is to provide for the establishment of official maps of municipalities, fixing, among other things, "the location and width of streets" and to regulate the issuance of building permits with reference to streets on which erection of buildings is to take place. It was adopted as part of a general legislative planning program which included the "Municipal Planning Act," L. 1953, c. 433, p. 2168, N.J.S.A. 40:55-1.1 et seq. Section 10 of the act here in question, N.J.S.A. 40:55-1.39, provides, so far as here material, "before any such permit [building permit] shall be issued, such street shall have been certified to be suitably improved to the satisfaction of the governing body * * *."

After referring the defendants' application to the planning board, the board of adjustment after a hearing granted the application upon the express condition that the Eckerts provide a pavement of road stone, 18 feet in width, along the center of Maine Street for access from Rahway Avenue, an improved street, to the Eckert lot, a distance of 270 feet to the westerly boundary of No. 620.

At the hearing before the board of adjustment the Eckerts' application was opposed by the plaintiffs, Phillips. The testimony taken at the hearing disclosed that although there is a sanitary sewer which runs through Maine Street, the town has no present intention to pave the street for some years, and that to pave the portion of it from Rahway Avenue to the far end of the Eckert lots would cost in excess of $5,000. The board made specific findings that (1) Maine Street is an accepted but unimproved street and is shown on the master plan of the Town of Westfield, and that no other practical access to Eckerts' property is available; (2) that it would be an unnecessary hardship to

compel Eckert to install full-width paving and curbing from Rahway Avenue to the end of his property at a cost in excess of $5,000; (3) that the enforcement of such a requirement would, because of the cost, deprive him of the use of his property; (4) that the stone roadway to be constructed will assure adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and ...


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