Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff appeals from a final judgment of the Law Division dismissing his complaint in lieu of prerogative writ, and ordering judgment in favor of the defendants.
In the fall of 1936 defendant Pond prepared and submitted to the Tenafly Planning Board for its approval a map for the subdivision of a portion of a ten-acre tract then owned by his mother. This map delineated, inter alia , three building lots which were cast from the ten-acre tract and designated thereon as Lots 10, 11 and 12 in Block 189. These building lots, as depicted on that map, fronted on Serpentine Road. The map depicts, as well, a building line for each of the designated lots which is located along a line
set back from Serpentine Road a distance of 25 feet. Pond's power to deal with these lands was derived from a power of attorney from his mother under which he managed her affairs. The planning board approved this subdivision map on December 3, 1936, and on December 8, 1936 it was approved by the borough council. At the time the aforesaid map was submitted, Pond was an acting secretary for the planning board. There is no charge of fraud.
At the death of Pond's mother in 1938 she devised the entire tract to Pond. Some time after Pond obtained title he defaulted in the payment of real estate taxes due to the municipality and in settlement of the municipal lien he conveyed the tract to the municipality, except for the three building lots referred to above.
In 1944 or 1945 title to the tract theretofore conveyed to the municipality was acquired by persons named Haskell. In 1949 or 1950 Pond and the Haskells exchanged deeds for various segments of property. As a result of these exchanges Pond continued his ownership of Lot 10 and acquired, in addition, a ten-foot strip of land (known and designated as Lot 10A), contiguous to the southerly line thereof. Lots 11 and 12 were combined and replotted to make a newly designated Lot 11. This latter lot, however, does not form any part in the consideration of the present case. The perimeter of lots 10 and 10A combined measures approximately 100 feet along the westerly line (bordering Serpentine Road), approximately 140 feet along the northerly leg, approximately 84 feet along the southerly leg and approximately 50 feet along the rear or easterly line.
Under the 1934 zoning ordinance and the amendments thereto the set-back requirement for new buildings in the section of the municipality with which we are here concerned was the average set-back line of existing buildings on the same side of the street between intersections, except where set-back lines had been established prior to 1934. In no event were such set-backs required to be more than 75 feet from the street line. It is agreed that the property in question is bound by a 75-foot set-back requirement.
In 1953 Pond entered into an agreement to sell lots 10 and 10A, covenanting, in part, that the property could be used for the purpose of erecting a single-family dwelling. In the spring of 1953 Pond and his purchasers applied for and obtained from the building inspector of the borough a permit to construct a house on lots 10 and 10A, set back 25 feet from the easterly line of Serpentine Road. Thereafter plaintiff sought to prevent the construction of the house and appealed the issuance of the building permit to the board of adjustment. The board dismissed his appeal and plaintiff appealed that decision to the Law Division (Docket L-8353-52). The matter was heard on a stipulation of facts. The trial judge determined that the planning board had no power in 1936 to establish a set-back of 25 feet, and set aside the issuance of the building permit. Pond did not appeal from the ensuing judgment.
In 1955 Pond petitioned the board of adjustment for a variance from the limiting schedule of the ordinance, both as to set-back and minimum area requirements, upon the ground of undue hardship. R.S. 40:55-39(c). On September 10, 1956 the board denied that petition, stating that although Pond "has presented evidence of an extraordinary condition of the property and undue hardship," he had "failed to adduce substantial evidence that the variance can be granted without substantial detriment to the public good or substantial impairment of the intent and plan of the zone plan and ordinance." Pond appealed the denial of his petition to the Law Division by an action in lieu of prerogative writs (Docket L-1129-56-P.W.). The present plaintiff intervened as a defendant in that action.
The pretrial order entered in that case discloses that the board of adjustment contended that its denial was in all respects valid, there being "no showing of hardship justifying the granting of the variance." Further, that the "intervenor will contend that there was no proof before the Bd of Adjustment sufficient to justify the Bd of Adjustment in granting the requested variance; ...