Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Defendants appeal from a final judgment of the Superior Court, Law Division, reversing the action of the Building Inspector of the Borough of Spring Lake in refusing to issue a building permit to plaintiff and that of the board of adjustment in refusing to grant her a variance.
The parties have stipulated the facts, and briefly they are as follows. In 1946 the plaintiff purchased contiguous lots 16 and 17 on the north side of Pennsylvania Avenue, Spring Lake, 200 feet west of Ocean Avenue, having a combined frontage of 100 feet and a depth of 150 feet. Each lot has a 50-foot frontage.
At the time plaintiff purchased the two lots and when plaintiff erected a dwelling house on lot 17 in 1952, the local zoning ordinance required a 50-foot frontage and a depth of 100 feet for a residential building. Lot 16 has always remained a vacant lot. But in May 1957 the mayor and council adopted an amendment to the zoning ordinance which increased the frontage requirement to 100 feet for building purposes.
In January 1958 plaintiff applied to the local building inspector for permission to erect a dwelling on lot 16. Her application was denied on the ground that lot 16 failed to comply with the new lot-size requirements. The following
month application was made to the board of adjustment for a variance from the amendment. This was denied for the same reason.
To review the propriety of those denials, plaintiff brought this action in lieu of prerogative writs. The stipulated facts reveal that she has been and will be unable to sell lot 16, except at a considerable sacrifice, unless purchasers will be able to erect a dwelling thereon and that lot 16, as presently situated, is useless. The complaint proceeds upon the theory that "undue hardship" entitles her to a variance and a building permit. The pertinent statutory provisions, contained in N.J.S.A. 40:55-39, give the board of adjustment the following powers:
"c. Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under the act would result in peculiar and exceptional practical difficulties to, of exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship; provided, however , that no variance shall be granted under this paragraph to allow a structure or use in a district restricted against such structure or use.
No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance."
The trial judge inspected the premises in the company of counsel. He stated in his opinion deciding the matter in favor of plaintiff that "[t]he physical character of the entire block on both sides of the street and the surrounding area is built up with homes situate on 50-foot frontage lots except the lots adjoining Lot 16 to the west which is (sic) not owned by this plaintiff and which are undeveloped." With the exception of two homes on 100-foot lots on the other side of the street, counsel agreed at the oral argument that the foregoing statement is factually correct. The conclusion
of the trial judge that the variance should be granted on the basis of undue hardship rested primarily on Ardolino v. Board of Adjustment of ...