Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
This is an action in lieu of prerogative writs which as tried in the Law Division consisted of an attack upon the refusal of the Wayne Township Board of Adjustment to grant plaintiff a variance from the minimum residential lot size and frontage requirements of the zoning ordinance, and, alternatively, upon the reasonableness and constitutionality of those provisions as applied to plaintiff's property. Since 1955 plaintiff has owned a corner tract of land on which five bungalow-type dwellings were erected prior to 1930, before the zoning ordinance in question was adopted, which have been used as such ever since by tenants. Four of these structures front on Water Street and one on Island Street. Plaintiff sold these homes to their tenant-occupants on installment contracts, but when he delivered a deed to one of them by a description not according with any previously fixed lot lines he was informed by the board of assessors that "this is a subdivision and must be referred to the Planning Board for approval." That body upon consequent application refused plaintiff's request for approval of subdivision of the tract into five lots, one for each dwelling, on the ground "it does not meet present zoning requirements." Whereupon the unsuccessful application to the board of adjustment and the action in the Law Division. That court held for defendants.
On the original briefing and argument of the appeal before us the only issues debated were those mentioned above -- error in the ruling of the board of adjustment and the invalidity of the zoning ordinance lot area and frontage requirements. On subsequent deliberation over the matter by the court, we concluded that the root problem here was the question of the statutory jurisdiction of the planning board over the matter in the particular circumstances presented, or, alternatively viewed, the reasonableness or validity of a denial of approval of subdivision of this fully developed tract of land, in the light of the exempted nonconforming use of the property insofar as the zoning ordinance is concerned.
We directed submission of affidavits bearing upon the facts in relation to these issues and supplemental briefs on these points. These have been filed and have received our further study. The additional facts so supplied are not disputed. Our conclusion, for the reasons hereinafter stated, is that plaintiff is legally free to make separate conveyances to vendees of these dwellings within suitable curtilages of land, without regard for the action of the planning board. This disposes of the controversy and renders the other issues in the case unnecessary of resolution. The more detailed references to the facts infra are partly taken from the supplemental affidavit submitted by plaintiff, which has not been disputed by defendants.
The properties in question are situated in a residence B district under the zoning ordinance wherein residential use is confined to single family dwellings. Minimum lot area and frontage requirements have from time to time been increased by zoning amendments since the first zoning ordinance, adopted in 1930, set the area and frontage requirements at 2500 square feet and 25 feet respectively. The structures here involved are conceded by defendants to have been built prior to that time. As of June 1, 1955, when plaintiff acquired title to these properties, and ever since, the said lot requirements were 15,000 square feet and 100 feet, respectively, subject to certain qualifications not here applicable.
The locus in quo is situated near the southerly end of a residential B zoning district pocket having approximate median dimensions of 2600 feet by 500 feet, lying lengthwise along the Pequannock River, which borders its westerly side. It is abutted along its easterly side by the Erie-Lackawanna Railroad, and beyond that, and also on its north and south ends, by districts zoned industrial. In other words, it is a small residential pocket surrounded by the river and industrial areas. A map in evidence (Ex. P-7) shows the existing lot and building development of the southerly two-thirds of the pocket, including the property
here in litigation. The evidence discussed hereinafter applies to the area shown on that map. The section is dominated by one north-south street, Fayette Avenue. Island Street runs from Fayette Avenue to the river, and Water Street is a dead-end street making a "T" intersection with Island Street near the river. All the lots on the westerly side of Fayette Avenue run down to the river.
About 85% of the land area in question is built up with small dwellings on lots averaging about 25 feet in width. It appears these were all built in the 1920's as recreation bungalows primarily for summer occupancy. Beginning during the housing shortage of the last war, however, they were converted to all-year occupancy by installation of heating plants and insulation. There is evidence that there has been a demand for this type of housing in the area, and we infer from the proofs that many if not most of these properties are now owner-occupied. Some 82 such structures are shown on the map, in several cases more than one on a lot (some on rear areas of 25-foot lots). The market values per house and lot appear to run from $10,000 down to $3,000. An expert witness for defendants conceded this was a "very highly built up area." He further stated: "this area can be and at some day in the very near future should be considered a blighted area and that all structures within that area be torn down and the area be redeveloped." There is occasional flooding from the river. No sanitary sewer system exists here, and the houses are all served by septic tanks. According to the health officer of the township, the water table and soil conditions are such as to preclude any further installations of septic tanks for new construction, and emergency plans are being prosecuted by the municipality for construction of a sanitary sewer system for the area. There have been no sewerage complaints by or on behalf of the municipality, however, as to any of plaintiff's houses. Three of them have individual septic tanks, two share another.
The defendants expressly concede the fact that the buildings of the plaintiff are valid nonconforming uses and entitled to the status accorded such uses by the statute and the ordinance.
The entire general area under discussion was originally platted as shown by a "Map of Lots at Island Park, Mountainview, Passaic Co., N.J., owned by Victor Haviser," dated April 1919, approved by the municipal governing body, and filed in the office of the Register of Passaic County May 10, 1919. Most of the lots shown thereon are, as noted above, about 25 feet in width. Plaintiff's holding consists of all of original lot #27 (frontage 32.28 feet) and a portion of original lots #25, #23, #21 and #19 on said map (all with frontages of 25 feet), the rear segments of the latter lots, which back on Fayette Avenue, having been conveyed away long ago by a predecessor in title. All these lots fronted on Water Street. The irregular tract as a whole measures 132.28 feet on Water Street, 136.83 feet along Island Street, 127.13 feet on the northerly boundary and 81.69 feet on the easterly boundary.
Although the erection of the structures on plaintiff's property ignored the original 25-foot lot lines as filed, it is clear this was done to afford less crowding of the buildings. If erected within the original lot lines, five bungalows could have been built on the Water Street frontage. Instead, four were built on that frontage, affording more space between them, and one on the Island Street side fronting 35.66 feet on that street (lot width 33.13 feet), using the rear portion of the Water Street lots for that purpose. As now proposed by plaintiff to be subdivided to accommodate the five dwellings on separate lots in separate ownership, the parcels would have the following dimensions: (a) 32' x 94'; (b) 32.94' x 94'; (c) 27.53' x 94'; (d) 39.81' x 94' x 101.17'; (e) ...