Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants appeal from a summary judgment entered by the Superior Court, Law Division, on plaintiffs' motion, ordering the Board of Adjustment of Washington Township to grant plaintiffs or their assigns a variance permitting them to erect a one-family dwelling on their property.
Plaintiffs are the owners of a 50' x 100' lot on Colonial Boulevard, Washington Township, located in the Class B residential district established by the township zoning ordinance of 1941, as amended. They acquired the lot in 1931, long before the adoption of the zoning ordinance in 1941, which required a minimum frontage of 50' for any building lot located in the district in question. The ordinance was subsequently amended in May 1952, to change this minimum frontage requirement to 75'. Plaintiffs have never owned any property adjacent or contiguous to their lot. Adjoining their property on the north is the Sanzone home, built on a 50' frontage, and immediately to the south is the Enger home, built on a 75' lot.
Plaintiffs entered into a contract to sell their property for residential use, the sale being contingent on their first obtaining a variance. Accordingly, on April 3, 1958 they applied to defendant township building inspector for permission to erect a one-family dwelling on their 50' lot. The application was denied, and on the same day they applied to the local board of adjustment for a variance to permit the requested use.
The board held a public hearing on May 20, 1958. Evidence was taken indicating that plaintiffs had agreed to sell their property, subject to the granting of a variance. Both their present attorney, Mr. Kosoff, and the real estate broker, Mr. Werner, refused to produce the agreement. The broker, whose qualifications as an expert were not questioned, testified that in his opinion a substantial one-family house, conforming with other houses in the area, could be erected on the lot in question; that such a dwelling would not result in substantial detriment to the public good or impair
the intent and purpose of the zone plan and zoning ordinance; and it would not depreciate values in the area. He said that unless a variance were granted there was no other use to which the owners could put the land, except for a garden. He also testified that the property had been offered to the adjoining owners at a figure of $2,500. The Sanzones said they would not be interested in paying even $500, and the Engers said they had no money to purchase the lot. It was also brought out that the board of adjustment had granted a variance for a 50' corner lot nearby.
Neighboring property owners voiced objection to the granting of the variance because of alleged sewage and drainage problems and their general unhappiness over a house being constructed on plaintiffs' lot. As to this, we might observe that (1) if there were any sewage and drainage problems, they presumably would have to be solved in accordance with the building code before any building permit would issue, so that the objections on this ground would seem irrelevant; and (2) the lot in its present condition is unattractive, so that a house would certainly enhance the appearance of the neighborhood.
At the close of the hearing counsel for the township requested that the matter be continued to the next regular meeting of the board on June 17, 1958, to afford him an opportunity to produce and examine witnesses and to subpoena the contract of sale. The hearing was again continued to July 15, 1958 because the subpoena had not been served, and on that date the matter was further adjourned to August 19, 1958 for lack of a quorum. Meanwhile, plaintiffs had instituted a proceeding in lieu of prerogative writs by complaint filed July 11, 1958, pursuant to N.J.S.A. 40:55-45.
At the continued hearing on August 19, 1958 counsel for plaintiffs objected to the right of the board of adjustment to sit since the matter had been removed to the Law Division, thereby stripping it of jurisdiction to consider or act upon the variance application. Despite this protest, the board proceeded with the hearing. Plaintiffs' attorney refused to
be sworn or to produce the contract of sale. The board then took the testimony of a real estate expert produced by the township who said that the erection of a home on plaintiffs' plot would have a detrimental influence on the value of surrounding properties and would impair the intent and purpose of the zoning plan and zoning ordinance. His conclusion was based primarily on the view that any 50' frontage in Class B residential district is undesirable, and the fact that there are a large number of such isolated 50' lots in the township. We observe that the testimony so taken on August 19 was, of course, never presented to nor filed with the trial court. Following this hearing the matter was further adjourned to September 16, 1958. The case is still pending before the board of adjustment.
Plaintiffs' complaint of July 11, 1958 outlined their attempt to obtain a variance by appeal to the board of adjustment from the building inspector's denial of a permit, and alleged that the board's failure to act by July 3, 1958 amounted to a denial of their appeal. They demanded judgment ordering the building inspector to issue the requested permit. In their answer defendants, among other defenses, alleged that plaintiffs were not entitled to a variance; that granting the requested variance would be in violation of the zoning ordinance, would result in substantial detriment to the public good, and substantially impair the intent and purpose of the zone plan and zoning ordinance; and that the board had not yet acted but had reserved decision pending continued hearing. Plaintiffs then moved for summary judgment, submitting supporting affidavits of their own, their counsel and their real estate expert, setting out the facts already recited. Defendants submitted an affidavit recounting the hearing and adjournments, and an affidavit by the real estate expert in which he described the premises, stating ...