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Bierce v. Gross

Decided: October 17, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


[47 NJSuper Page 151] Plaintiffs appeal from a summary judgment entered in defendants' favor in the Law Division of the Superior Court, in an action in lieu of prerogative writ contesting the validity of a variance granted defendants Gross by defendant board of adjustment, as well as the approval by defendant planning board of a proposed subdivision of the Gross property as a minor subdivision. Plaintiffs own property in the neighborhood.

On June 27, 1956 defendant Albert S. Gross entered into a contract to purchase lots 7 to 18, inclusive, in block 179, located on the easterly side of Jones Road, between Maple Street and Linden Avenue in the City of Englewood. The property is vacant land situated in Residence District No. 1, the most highly restricted residence zone in Englewood. On September 17, 1956 he, as equitable owner of the premises, applied to defendant board of adjustment for a variance from the local zoning ordinance. That ordinance, as adopted January 12, 1954, called for a minimum lot area of 15,000 square feet in Residence District No. 1. As amended June 22, 1954, the ordinance prescribed a minimum for building plots in that district of 22,000-square-foot area, 150-foot depth and 120-foot width (measured at right angles to the side line). The variance sought by Gross was for the purpose of permitting him to subdivide the property into two building plots. The first, consisting of lots 13 to 18, inclusive, would comply in every particular with the zoning ordinance minima; the other, made up of lots 7 to 12, inclusive, would not. It was Gross' intention to build a home on the latter, and there is no question but that this dwelling would meet the set-back, side-line, rear yard and other requirements of the zoning ordinance and building code.

Lots 7 to 12, inclusive, comprise 19,900 square feet, or 2,100 square feet less than the prescribed minimum area. They front on Jones Road, which cuts across them at an acute angle. Lots 11 and 12 have a depth of well over 200 feet; however, the depth of the other lots runs from 123.61' on the southern boundary of lot 10, to 159.29' on the northern boundary of lot 7. Thus, at its shallowest point, the plot made up of lots 7 to 12, inclusive, falls 26.39 feet short of the required 150-foot minimum depth. The back of the plot presents a step-like aspect.

At the zoning board hearing held September 28, 1956 Gross claimed hardship because of the shape of his property. He said he had tried to purchase land immediately to the rear of lots 7 to 10, so as to acquire the needed depth and acreage, but the owner refused to sell. It also appears that

he had unsuccessfully attempted to sell parts of his property to adjoining non-conforming owners, but without success. Gross' real estate expert described the property in question and testified that an improved plot on Maple Street, to the rear of the Gross holdings, contained 20,520 square feet. This, however, was a non-conforming property, predating the amendment of the ordinance. In his opinion, the amendment created a hardship as to the plot owned by Gross, lots 7 to 18, because it was oversize for the location, and granting the requested variance would not have a detrimental effect on the neighborhood.

Some 17 owners in the immediate area objected to the variance. They pointed out that Gross, an attorney, had bought the property with full knowledge of the zoning requirements; that as land for the building of homes became less available in Englewood, owners of larger holdings would inevitably apply for variances to divide their plots, so that more than one home could be built on them; that the reason for amending the ordinance to increase the minimum area requirement was to preserve the high residential character and beauty of the area; and that granting the variance would be an entering wedge to the destruction of the character of the neighborhood and residential values.

On October 24, 1956 the zoning board adopted a resolution reciting that lots 7 to 12, although conforming to the minimum 120' width requirement, did not meet the minimum requirements of depth and area; that Gross had applied for a variance to permit the erection of a one-family residence on those lots; that "no further property is available," and concluding that "strict application of the Zoning Ordinance in this case would work an undue hardship on the owner and that the granting of the permit would not be contrary to the public interest, nor substantially impair the intent and purpose of the zone plan and zoning ordinance."

The complaint characterizes the board's action as arbitrary, capricious and unlawful in that the granting of the variance was not supported by adequate, competent evidence; there was no proof of hardship; the board made no proper findings

of fact; and its decision was contrary to and destructive of the comprehensive zoning scheme of the City of Englewood and would result in substantial detriment to the property values of plaintiffs and others.

Gross and his wife proceeded to take title on October 29, 1956. Englewood had adopted a land subdivision ordinance pursuant to the Municipal Planning Act of 1953, N.J.S.A. 40:55-1.1 et seq. , which required approval by the Planning Board of Englewood of all real property subdivisions. Pursuant to application made by Gross, the planning board on November 27, 1956 approved the proposed subdivision of lots 7 to 18, inclusive, as a minor subdivision and referred the same to defendant Common Council of Englewood for action. Plaintiffs charge that the subdivision approval is unlawful and contrary to the land subdivision ordinance in that it would result in the creation of a building plot smaller in area and shorter in depth than prescribed by the zoning ordinance, and they seek to set aside the action of the planning board as void.

At the oral argument counsel for the parties were requested, in the exercise of our original jurisdiction, R.R. 1:5-4, to submit a map of the area surrounding the Gross property. We have before us a small-scale land use map of Englewood, as well as a larger scale tax assessment map which shows the properties in the immediate vicinity of the land in question. The latter map indicates lot dimensions, acreages, improved and vacant lands, and also whether any lots improved prior to the zoning ordinance amendment of June 22, 1954 are non-conforming. The land use map clearly shows that the Gross property is in the south-central part of a large area consisting of improved properties, most of which far exceed the 22,000-square-foot minimum. It is undisputed that the northeastern part of Englewood is a residential area of the highest ...

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