Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
[78 NJSuper Page 75] This is a zoning case which involves the issue of plaintiff's right to a variance under N.J.S.A. 40:55-39(c) to erect a single-family dwelling upon an undersized plot of land. Defendant Board of Adjustment of the Borough of Norwood (hereafter board) denied the requested variance, holding (1) the applicant failed to establish "any hardship," and (2) the erection of the proposed dwelling on plaintiff's limited property area would seriously impair the intent and purpose of the zoning ordinance and would result in substantial detriment to the public good.
A proceeding in lieu of prerogative writs thereon initiated by plaintiff Carl Holman in the Superior Court, Law Division, resulted in a finding that "a hardship does exist." The trial court reversed the board's determination and entered a judgment that "the defendant, the Board of Adjustment of the Borough of Norwood, shall issue the necessary variance." Appealing that judgment the board contends the granting of the variance sought by plaintiff contravenes the proven facts and the applicable law.
In 1941 plaintiff purchased, at a cost of $25, a tax title certificate encumbering the subject property and, in 1947, through subsequent tax lien foreclosure proceedings acquired title thereto. At that time the municipal building restrictions did not limit the lot size for dwelling construction. The property consists of eight 20' x 100' parcels, known as Lots 9 through 16, Block 183, West Section Yorkview in the Borough of Norwood. They represent a total area of 16,000 square feet -- 160' frontage on Fifteenth Street with a depth of 100'. Plaintiff has never owned any lands contiguous to his eight lots in question, although he did possess title to Lots 24 to 28, inclusive, fronting Fifth Avenue at the north end of Block 183.
That entire block, situate in an undeveloped wooded section of the municipality, is a part of the "R-40 residential zone" subject to a comprehensive zoning ordinance which limits the area to a residential development with a minimum lot size requirement of 40,000 square feet and minimal lot dimensions of 150' x 150' for construction of a one-family dwelling. There are 23 lots in Block 183 facing Fifteenth Street, and to the rear of these lots is a ten-foot "map sidewalk" easement separating them from the rear of 23 similar lots in Block 184, fronting Sixteenth Street. The easement strip is perpendicular to a comparable ten-foot dedicated access strip to the north forming the rear boundary of ten lots on Fifth Avenue. The borough owns all of the lands in Block 184. In Block 183 the eight lots abutting plaintiff's property on Fifteenth Street and to the south side thereof are owned by
one Scott. They were not available for sale. Four adjacent lots on the north side were owned by Isaac Sanger, who was a willing seller at the asking price of $3,500.
The stenographic record of the board's rehearing reveals that the only proffered testimonial evidence was that of plaintiff himself, and a Raymond E. McKenna on behalf of the board. McKenna, a borough councilman and "chairman of property," testified that the borough property in Block 184 was for sale, saying:
"* * * we would like to protect our zoning ordinance as much as possible. I would not recommend to the governing body to sell any land in 184 unless someone in 183 who owned the land in 183 wanted to conform as much as possible to our zoning in that area, which is one acre. I would not sell it as a building part of 184. I would sell it contiguous to other lands that are owned in Block 183."
He referred to dwellings in the R-40 zone which conform with the ordinance restrictions and to others which nearly conform, and voiced the opinion, if Holman were to be permitted to build on "as small an area" as he now owns, it would "not only be detrimental as far as the zoning ordinance * * * but I believe it would also be detrimental to the people who own property in [Blocks] 185 and 186." He indicated that for the sum of $1,500 plaintiff could purchase lots in Block 184 (to the rear of Lots 9 to 16 in Block 183) equivalent to his present property, plus the intervening ten-foot sidewalk easement region, which would give Holman sufficient square footage to represent "as much as possible" a substantial compliance with the ordinance. The fairness of the suggested price was not disputed.
Plainly, the refusal of plaintiff to negotiate with the borough for the acquisition of additional lands to equal or approximate zoning conformity was a dominant factor in the board's deliberations. The minutes of the board (January 24, 1961) contain a motion "that Appeal #168 of C. Holman be denied inasmuch as no appreciable effort had been made on the part of the applicant to acquire property from the Borough."
At the conclusion of a second hearing (July 13, 1961), held pursuant to remand by the trial court for a more adequate record, there was ...