On appeal from Superior Court, Appellate Division, whose opinion is reported in 53 N.J. Super. 539.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Burling, J.
Plaintiff initiated this proceeding in lieu of a prerogative writ in the Superior Court, Law Division, challenging a variance granted by the Board of Adjustment of the Borough of Tenafly under N.J.S.A. 40:55-39(c) concerning land owned by Henry O. Pond. When the trial court found in favor of defendants, plaintiff successfully appealed to the Appellate Division. 53 N.J. Super. 539 (App. Div. 1959). We granted certification. 29 N.J. 512 (1959).
The property involved here, located in the Borough of Tenafly, was originally part of a larger tract owned by Pond's mother until her death in 1938. In 1936 Pond had a map prepared in connection with a subdivision of part of the tract, submitting it to the planning board for approval. Although Pond was at that time secretary of the local planning board, the approval was given without his participation. The map purportedly established a 25 foot setback line for properties located along Serpentine Road, including the lot in question here. Pond's mother died on January 17, 1938. By her will, probated February 1, 1938, Pond became the owner of the entire tract in fee.
A considerable amount of real estate taxes accrued on this land. In satisfaction of these, Pond conveyed to the Borough of Tenafly, on December 2, 1941, the larger portion
of the tract, retaining land marked as lots 10, 11 and 12 on the subdivision map made in 1936. These lots all fronted on Serpentine Road. Lots 11 and 12 were contiguous, but a strip of land approximately 55 feet wide separated lots 10 and 11. Some time in 1944 or 1945 the borough sold its portion of the original Pond land to Harold R. and Virginia Haskell. Then the Haskells and Pond agreed on an exchange of property whereby Pond was to convey a large portion of lot 11 and a smaller portion of lot 12 and receive in return a block of land directly in back of the portion of lot 12 retained by Pond, along with a small strip of land contiguous to lot 10, abutting it on the side closest to what had been lot 11. This redistribution was made the subject of another subdivision map, approved by the local planning board on November 9, 1949. The small strip was called lot 10A. The portions of lots 11 and 12 retained by Pond, in addition to the other land obtained by him from the Haskells, were combined and called new lot 11, which Pond conveyed to Basil and Frances Lo Presti on May 2, 1950. Of the original Pond tract, this transfer left Pond with lots 10 and 10A, which was a parcel running 100 feet along Serpentine Road, at a point where that road curves slightly giving this portion of the lot a concave appearance, and with a back line of 50 feet, connected to the front by sides 140 feet long along the north and 84 feet long along the south.
In 1953 buyers agreed to purchase the lots from Pond provided the land could be used for the purpose of erecting a single family dwelling. The building inspector issued a permit allowing the construction of a single family house set back 25 feet from Serpentine Road. Plaintiff, an adjoining property owner, contested this action before the Tenafly Board of Adjustment, and, failing there, before the Superior Court, Law Division. That suit (Docket L-8353-52) was decided in favor of plaintiff. The building permit, based upon the 25 foot setback line established by the 1936 subdivision map, was ordered cancelled. The court held that
the 1936 map, approved by the planning board but not given the sanction of ordinance by the municipality, was not effective to establish a 25 foot setback line. Judgment in that case was entered April 22, 1954.
In 1955 Pond applied to the Tenafly Board of Adjustment for a variance which would allow him to modify both the setback line and minimum area requirements of the local zoning ordinance. Pond wished to build within 25 feet of the street on a lot roughly 7,200 square feet in size. At the hearings held November 6, 1955 and February 6, 1956, plaintiff appeared as an objector. Both parties were represented by counsel. The board denied the application by a resolution dated September 10, 1956 stating that despite "evidence of an extraordinary condition of the property and undue hardship" there was not "sufficient evidence that the variance * * * [could] 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 to the Superior Court, Law Division (Docket L-1229-56 P.W.) where the court sustained the board, finding from the record below that Pond had failed to prove that his variance would not work a substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance, and also found that any hardship was self-created. The judgment was entered March 13, 1957.
No appeal followed this decision. About one month after it was rendered, however, Pond applied again to the building inspector, submitting plans which extended the proposed setback from 25 to 30 feet, reduced the area to be used for building from 18% of the total lot to 12% and, apparently as a consequence of these changes, placed the proposed dwelling on the lot in a different manner than in the prior plans. On appeal from the building inspector's denial of a permit, the board of adjustment, after two ...