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Wajdengart v. Broadway-Thirty-Third Corp.

Decided: March 21, 1961.

DAVID WAJDENGART, ET AL., PLAINTIFFS-RESPONDENTS,
v.
BROADWAY-THIRTY-THIRD CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Goldmann, Foley and Collester. The opinion of the court was delivered by Collester, J.s.c. (temporarily assigned).

Collester

This appeal is taken from a judgment of the Law Division reversing the award of a zoning variance granted pursuant to N.J.S.A. 40:55-39(d).

The defendant contends that the findings of the board of adjustment of the City of Paterson, confirmed by the board of public works of said city, granting a variance for "special reasons" pursuant to N.J.S.A. 40:55-39(d) are supported by substantial evidence and that the trial court

erred in holding that traffic congestion and the need for off-street parking were legally insufficient as "special reasons" under the statute, and in not regarding the board's finding as to existing neighborhood characteristics and property use as sufficient, together, to constitute a "special reason."

In December 1956, 707 Broadway Corp., defendant corporation's predecessor, having contracted to purchase property located at the southwesterly corner of Broadway and East 33rd Street in Paterson (hereafter referred to as the East 33rd Street tract), secured a variance from the city under N.J.S.A. 40:55-39(d) to permit the erection of a professional office building on said property in a zone known as "Multiple Family Residence Zone D-2." In April 1957 the defendant corporation took title thereto, and in May 1957 it also purchased the adjoining property located on the southeasterly corner of Broadway and Wall Avenue which was zoned as "Residence A" (hereafter referred to as the Wall Avenue tract).

The original plans filed to secure the variance for the East 33rd Street tract provided for the construction of a four-story building on piers with parking facilities beneath the building and on part of the tract on East 33rd Street. Some of the plaintiff-objectors, all of whom reside on Wall Avenue in the Residence A Zone, inspected the original plans and made no objection to the granting of the variance. In October 1957, without notice to the objectors, the defendant filed revised plans which provided for the erection of a two-story building, not supported by piers, instead of the building originally proposed. The revision provided for parking on the rear part of the East 33rd Street tract and showed a parking area on the Wall Avenue tract. Thereafter the Physicians' Building was erected at the Broadway and 33rd Street corner.

When one Leon Lanson, one of the plaintiffs, learned of the revised plan and objected, the defendant and he entered into a written "stipulation" dated February 28, 1958, agreeing that the variance granted in December 1956 did not

include the Wall Avenue tract and that such property was subject to all restrictions pertaining to a Residence A Zone. In July 1958, over plaintiffs' protests and without endeavoring to obtain a variance, the defendant constructed a parking lot and driveway on the Wall Avenue tract to be used in connection with the Physicians' Building. On August 1, 1958 plaintiffs filed a complaint and secured a temporary injunction in the Chancery Division restraining the use of the tract for parking, which action is being held in abeyance pending the outcome of this suit.

In November 1958 defendant made application to the local board of adjustment for a variance to permit the use of the Wall Avenue tract for an off-street parking lot to be used in conjunction with the Physicians' Building. Following a hearing the board recommended the variance, subject to certain limitations, which recommendation was thereafter approved by the board of public works for the city. Plaintiffs brought an action in lieu of prerogative writ to review the grant of the variance, alleging that the findings of the board of adjustment were arbitrary, capricious and unreasonable; that the variance was not supported by "special reasons," and that it violated the Zoning Act and Paterson's zoning ordinance. Answers were filed and issue joined. On September 30, 1959 the Law Division entered an order returning the proceeding to the board of adjustment for supplemental findings. These were filed, and the board of public works thereafter gave its approval. The matter then came on for oral argument, resulting in a reversal by the Law Division of the action taken by both boards, and holding the findings not sufficient to show the existence of "special reasons." Defendant appealed the resultant judgment.

Two critical findings are required to be made by the board of adjustment to warrant a recommendation for a variance under N.J.S.A. 40:55-39(d), namely, (1) that "special reasons" exist for the variance, and (2) that the variance can be granted without substantial detriment to the public good and will not substantially impair the intent

and purpose of the zone plan and the zoning ordinance. Andrews v. Ocean Tp. Board of Adjustment , 30 N.J. 245, 249 (1959).

In the instant case the board of adjustment found two "special reasons" upon which the granting of the variance was predicated: (1) traffic congestion and lack of off-street parking in the area, and (2) the undesirability of the property for residential use for which it was zoned. It further found that the granting of the variance would have no adverse effect on the property values in the neighborhood; that the use of the property as a parking area would be a "stabilizing factor" in the neighborhood and would be the best use for the property, for the area and for the community as a whole. It found that the grant would not ...


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