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Toutphoeus v. Joy

Decided: December 19, 1963.

FRANK TOUTPHOEUS, GEORGE B. ULRICH, R. B. PARRY, D. KNIEBEL, DANIEL RANDALL, ROBERT J. GOODYEAR AND HARRY F. WALTHER, PLAINTIFFS-RESPONDENTS,
v.
FRANK JOY, JR., DEFENDANT-APPELLANT, AND BOARD OF ADJUSTMENT OF THE BOROUGH OF ORADELL, EDWARD OPSUT, BUILDING INSPECTOR OF THE BOROUGH OF ORADELL, MAYOR AND COUNCIL OF THE BOROUGH OF ORADELL, PLANNING BOARD OF THE BOROUGH OF ORADELL, DEFENDANTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Defendant Frank Joy, Jr. appeals from a judgment of the Law Division, setting aside and declaring null and void (1) a subdivision of his property into two lots, each with a frontage of 85 feet, conditionally approved by the planning board of the Borough of Oradell, and (2) a variance granted by the board of adjustment on the ground of hardship allowing use of the subdivided lots for residential purposes, notwithstanding the local zoning requirement of a minimum frontage of 100 feet for each lot.

The case was presented to the Law Division solely on the record below, briefs and oral argument. The Law Division determined that (1) there was no proof of hardship, and (2) the chairman of the board of adjustment had not completely removed himself from the proceeding before the board, after publicly disqualifying himself at the hearing on the ground that he had an interest in the application, even though he did not participate in the discussion or vote. The Law Division also found lacking in merit defendant Joy's contention that plaintiffs, property owners within a radius of 200 feet of the subject property, had not filed their complaint within the time limited by R.R. 4:88-15.

Plaintiffs had also attacked the planning board's treatment of Joy's application as one for a "minor subdivision" and its granting thereof without notice to the neighboring property owners or any opportunity afforded them to be heard. The Law Division decided that the planning board had properly

processed the application as one for a minor subdivision. There is no cross appeal from that phase of the judgment.

Joy purchased the property as two separate parcels, known as lot 22A in block 227 and lot 23 in block 270. There was a one-family house on the corner lot, lot 23, which had a frontage of 113 feet on Forest Avenue and a depth of about 281 feet along Oradell Avenue. Adjoining on the south was lot 22A, measuring 80 x 281 feet.

Prior to March 7, 1960 the zoning ordinance required lots in this AA residential zone to have a street frontage of at least 75 feet. On that date the borough adopted an ordinance increasing the required frontage to 100 feet and providing for a minimum area of 10,000 square feet for each building plot. Joy purchased subsequent to this ordinance.

On May 9, 1961 Joy applied to the planning board for approval of a minor subdivision to eliminate part of the line dividing his lots and establishing a new line (dotted line on diagram, infra), so as to create three lots, as follows:

[]

His application was granted without notice or hearing.

On October 10, 1961 Joy applied for a further minor subdivision, whose effect was to divide 170 feet of his property along Oradell Avenue into two lots, each with a frontage of 85 feet on that avenue. Because of the depth of these proposed lots, the one contained an area of 12,506 square feet and the other 15,227 square feet, thus meeting the minimum area

requirement. The application was granted without notice or hearing. The map was signed on October 12, 1961 with the notation "conditionally approved." Since the lots had less frontage than the minimum 100-foot requirement of the zoning ordinance, planning board approval was ...


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