Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants appeal from a Law Division judgment setting aside the Fair Lawn board of adjustment's denial of plaintiffs' application for a variance, directing the board to grant the variance, and ordering the building inspector to issue a building permit after the board had acted.
Plaintiffs Clarence and Thelma Smith are the owners of two adjacent 20' x 100' lots located on the east side of Elizabeth Street in the Borough of Fair Lawn, 234.36' north of Union Street. Clarence's parents had acquired the lots in 1928, when the borough had no zoning restrictions. In April 1961 the father conveyed the premises to plaintiffs. Defendants do not contest that this conveyance was by way of gift.
It appears that the borough first adopted zoning in 1933. At that time the premises in question were placed in a residential zone where building lots had to have a 50' minimum frontage. A 1954 ordinance amendment established the following minima for lots in that zone: 7,500 square foot area, 75' frontage, 100' depth, 30' setback and 12' sidelines.
On July 20, 1961 plaintiffs contracted to sell their 40' x 100' lot to Lawn Holding Co., Inc., for $2,500, subject to their obtaining a variance which would permit the erection of a dwelling in conformance with the building code. The contract was to be considered null and void if such a variance could not be obtained. Plaintiffs applied to defendant building inspector on September 7, 1961 for a permit to construct a dwelling measuring 21.67' x 46', with a setback of 25' and sidelines of 10' and 8.33', respectively. He denied the application because the building would violate the minimum requirements of the zoning ordinance. Plaintiffs immediately appealed to defendant board of adjustment, requesting a variance under N.J.S.A. 40:55-39(c) from the lot dimension and sideline requirements. (No mention was made of the setback requirement.) The board held a hearing and at the close of the testimony denied plaintiffs' application.
Plaintiffs then filed a complaint in lieu of prerogative writs in the Law Division demanding judgment setting aside the zoning ordinance as unreasonable and arbitrary insofar as it regulated their property; reversing the refusal of the board of adjustment to grant a variance, and requiring defendants to issue plaintiffs a permit to erect a one-story residence in accordance with the plans and specifications theretofore submitted. Defendants answered, and both sides then filed cross-motions for summary judgment. The matter was submitted on the pleadings, the record and transcript of testimony taken before the board of adjustment, affidavits and briefs. The Law Division judge found that plaintiffs had established undue hardship under the statute and concluded that they should have been permitted to erect a dwelling on their lot with side yards of 10' and 8.33', in conformance otherwise with the borough building code. Although counsel for defendants pointed out to the trial judge that the board had never acted on the side yard variance, the court proceeded to enter the judgment under appeal.
The "Schedule of Bulk Requirements" forming part of the zoning ordinance prescribes, among other things, minimum lot area and dimensions, and minimum front, side and back yard dimensions in each of the six several residential zones of the borough. Section IX of the ordinance, entitled "Supplementary Regulations," provides:
5. DWELLINGS ON SMALL LOTS.
When lot or lots within a residential district on one side of a street have dimensions which do not conform to the minimum lot area and or minimum lot dimensions required by this ordinance and there is a pronounced uniformity of dwellings on said side of the street which exist on lots with lot area and/or lot dimensions which do not conform with the terms of this ordinance, then the Board of Adjustment may upon application in any individual case grant an exception to said minimum requirements provided that
A. the applicant demonstrates it is impossible to acquire additional land for a reasonable price or at all so as to comply with ...