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Betts v. Board of Adjustment

Decided: February 8, 1962.

MICHAEL P. BETTS, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE CITY OF LINDEN, IN THE COUNTY OF UNION AND STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiff appeals from a judgment entered in the Law Division dismissing his complaint in which he sought to review the defendant's denial of his application for a variance to erect a one-family house.

On September 24, 1943 plaintiff's father, Richard J. Betts, acquired by deed a vacant lot known as 2114 Alberta Avenue, Linden, N.J. When his father died on January 28, 1960 plaintiff inherited the lot. It has always remained vacant, except when plaintiff's father attempted to erect a garage, which later had to be dismantled on complaint of neighbors.

In 1943 the zoning ordinance placed the land in a Residence A district and would then have permitted the construction of a one-family dwelling. That ordinance prescribed limitations that no dwellings should be erected covering more than 50% of an interior lot, with minimum provisions for side yards and a setback for future buildings.

On April 20, 1949 the zoning ordinance was amended to require a minimum lot area of 4,000 square feet and a minimum frontage of 40 feet in the zone in question.

Plaintiff's lot measures 28 feet in width by 125 feet in depth, with an area of 3,500 square feet. It is adjoined on one side by a lot owned by Leonard Urso having a frontage of 44 feet, and on the other side by one owned by Paul P. Tchir having a frontage of 38 feet, dwellings having been erected on both lots. There are no other lots on the same side of the street, in the same block, having a frontage of less than 36 feet. On the other side of the street, where residences are erected, each lot frontage is not less than 50 feet.

Plaintiff's application for a permit to construct a one-family house on the lot was denied by the building inspector. The denial was appealed to the local board of adjustment and on October 17, 1960 a public hearing was held. We have a transcript of those proceedings in which counsel for the plaintiff made an opening statement to the effect that plaintiff seeks to build a ranch-type house on his lot and that a denial of his application would constitute a hardship under the circumstances. Counsel then called the plaintiff as his only witness. The following ensued:

"Q. Mr. Betts, you heard my representation to the Board as the facts of your case. That is a correct representation? A. Yes, sir.

Q. Is there anything you want to add to it? A. No, sir.

Mr. Magner: Have any of the board members any questions?"

Members of the board then proceeded to interrogate the plaintiff. The adjoining property owners testified and objected to the grant of a variance.

At the conclusion of the hearing, and after having conferred on the matter, the board of adjustment unanimously denied the application for a variance on the grounds that (1) to permit a house to be built on the 28-foot frontage would not conform to the surrounding properties; ...


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