On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For reversal and remandment -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling and Francis. For affirmance -- None. The opinion of the court was delivered by Heher, J. Wachenfeld, J., concurring in result.
[27 NJ Page 300] There was judgment for the plaintiffs in this proceeding in lieu of the prerogative writ of mandamus directing the defendant borough to "recognize" a lot division of lands situate on the northerly side of Beacon Boulevard in the Borough of Sea Girt, acquired by the plaintiff Helen
Angermeier on May 11, 1946, designated on the borough's assessment map as Lots Nos. 13 and 14, Block 68, according to a conveyance of a portion of the lands made November 3, 1955 by Helen Angermeier to her co-plaintiffs, Wilbur E. Angermeier and Inez Angermeier, his wife, and to "treat" the land latterly conveyed "as a separate and independent lot or plot to be designated on the tax maps of the Borough as Block 68, S. 157', Lots 13 and 14," and the land retained by Helen Angermeier "as a separate and independent lot or plot to be designated on [the] tax maps as Block 68, N. 150', Lots 13 and 14"; and also to issue a building permit to Wilbur E. Angermeier and Inez Angermeier for the alteration and improvement of a "structure" presently on the southerly portion of Lots 13 and 14 in accordance with plans and specifications filed with the Borough October 30, 1956.
We certified, sua sponte, defendants' appeal to the Appellate Division of the Superior Court.
The vice of the judgment, the borough says, is that it "creates a lot that does not have the foot frontage required" by the borough's zoning ordinance and sanctions "two one-family dwelling units on the lot that is zoned for one-family dwellings."
Lots 13 and 14, as acquired by Helen Angermeier, consisted of two adjacent 25-foot lots fronting on the northerly side of Beacon Boulevard and extending the same width of 50 feet northwardly, between parallel side lines, 299.33 feet on the west and 322.33 feet on the east. The northerly boundary of the tract, according to the findings, "is located near Wreck Pond, a tidal body of water, but the Borough * * * owns a strip of land between the northerly end of the Angermeier lots and the edge of Wreck Pond"; and "[a]t the time of acquisition by Mrs. Angermeier, the property was improved by a two-story frame dwelling located near the northerly end of the property, with the front of the house facing Wreck Pond and the rear of the house to Beacon Boulevard, plus a garage with living apartments above located toward the southerly portion of the lots * * *."
In the early part of May 1955 Helen Angermeier applied to the local governing body "for approval of a subdivision of the property into two plots, the one plot to have a frontage of fifty feet on Beacon Boulevard and a depth of 157 feet, which plot would contain the garage apartment, and the other plot being that portion of the two lots lying northwardly of the first plot and having a depth of 153.83 feet." The application was denied.
Then came the conveyance, November 3, 1955, by Helen Angermeier to Wilbur E. and Inez Angermeier, of the southerly portion of the tract, fronting 50 feet on Beacon Boulevard and extending northwardly a depth of 157 feet. The deed "reserved" to the grantor, Helen, "a ten-foot easement for a right of way from the northerly of the two plots through the most southerly plot out to Beacon Boulevard, a public highway."
It was stipulated that "two pedestrian lanes [each five feet wide] lead into the property from Beacon Boulevard, namely, the one lane running north and south between lots 10 and 11 shown [on the map, Ex. P-9] and the other running parallel to the first lane, running between lots 24 and 25."
On or about October 30, 1956 Wilbur E. Angermeier submitted to the defendant building inspector plans and specifications for the "enlargement and improvement" of the garage and living quarters on the land thus conveyed to him. A building permit was refused. There was no appeal to the local board of adjustment.
The building inspector testified in this proceeding that the proposed plans were "all right," save that "they violated the zoning ordinance which prohibits a second dwelling on a single plot," and the governing body had "rejected the application for a subdivision of the plot."
There was testimony, and the judge found as a fact, that "while the easement for a right of way reserved by Helen Angermeier extends along the most easterly side of the whole plot out to Beacon Boulevard, in fact she actually uses the
driveway that has existed for years from her dwelling house out to Beacon Boulevard, which intersects the boulevard somewhere near the middle of the plot, and that in fact there is only one driveway being used for access to the boulevard, namely, the same driveway that has been in use for years."
The lands are situated in Residence District No. 2 as delineated by the local zoning ordinance, limited by section 4 to single or one-family dwellings, as in Residence District No. 1. The requirements for these districts are much the same: in each "not more than one dwelling and one garage shall be erected on any one plot" having a minimum frontage of 50 feet; and "no attached or built-in garage" is permissible "nearer than five feet from the side lot line, nor nearer than five feet from the front building line of the plot upon which [the] garage shall be" erected or maintained, except on "such plots as front on two streets." In district No. 2, the "dwelling building" shall occupy not less than 10% of the plot, exclusive of an attached garage or porches, and the ground floor area of the dwelling house shall not be less than 750 square feet; and in district No. 1, the requirements in these respects are, respectively, 12 1/2% and 937.50 square feet.
All lots on the north side of Beacon Boulevard in the vicinity of plaintiffs' lands extend from the boulevard to the borough-owned strip on the edge of Wreck Pond; and the residences on the lots there are also, for the most part, on the northerly portion of the lot, as is Helen Angermeier's, and the houses face toward Wreck Pond. Only two of these dwelling houses were built within the last 25 years; the others are 35 to 50 years old. The plot in question has the only garage ...