Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
This is another in the series of cases before our courts in recent years involving the right of variance to build on a lot of lesser size or dimensions than those fixed as minimum for the zone by a zoning ordinance. Some of the decisions are unreported. Of the reported cases, see Ardolino v. Florham Park Board of Adjustment , 24 N.J. 94 (1957); Burke v. Spring Lake Board of Adjustment , 52 N.J. Super. 498 (App. Div. 1958); Kryscnski v. Shenkin , 53 N.J. Super. 590 (App. Div. 1959); Smith v. Paquin , 77 N.J. Super. 138 (App. Div. 1962); Mischiara v. Board of Adjustment, Piscataway Tp. , 77 N.J. Super. 288 (Law Div. 1962); Holman v. Board of Adjustment, Norwood , 78 N.J. Super. 74 (App. Div. 1963).
The case now before us was decided adversely to the applicant by the Law Division on the ground that it "bought into" the situation with knowledge that the property "could not be
built upon" and that there consequently was no hardship as to it. That basis for a determination of this kind of case is completely dissolved by the recent ruling by the Supreme Court in Wilson v. Borough of Mountainside , 42 N.J. 426, 452-453 (1964), albeit there made in specific reference to a paragraph (d) case under the statute, N.J.S.A. 40:55-39, whereas we have before us here a paragraph (c) case. The Wilson case simplifies the problem in these "undersized lot" cases where the property has been sold after adoption of the restrictive ordinance.
The lot here in question is 40' by 100' on Voorhees Street, off Teaneck Road, in Teaneck. The original platting in this neighborhood was of 20-foot lots. The locus in quo , constituting two of the original 20-foot lots, was acquired in 1926 from the developer by one Parenti. It was later inherited by one DeRosa who sold it to one Fusco in 1961. The latter contracted to sell to plaintiff subject to the condition that a variance be obtained permitting erection of a dwelling. But when the variance proceedings before the board of adjustment and the Law Division became protracted, and Fusco insisted that plaintiff elect to take the property or rescind the contract, the latter elected to close title. It did so at a time after an initial denial of variance by the board of adjustment but prior to a remand to the board for rehearing directed by the Law Division. (The reasons for the direction of rehearing do not appear on this record; the parties and the trial court treated the matter as one calling for review of the final action of the board, and so shall we.)
When Parenti acquired his lot in 1926 it was free from minimum area or dimensional zoning restrictions. Thereafter from time to time such provisions were adopted by the municipality, all calling for lot widths of more than 40 feet, the most recent being a 1955 amendment of the zoning ordinance setting a minimum width requirement of 75 feet and area minimum of 7,500 square feet.
The properties adjoining plaintiff's lot on both sides are built upon, as are most of the building lots on both sides of
Voorhees Street between the adjoining intersecting streets. If a building variance is not granted this lot, its economic utility is for all practical purposes destroyed. The parties are in agreement that two other 40-foot lots on this street have been improved by dwellings, and that of a total of 57 building lots within the two-block area centering on Voorhees Street and bounded by the next adjacent streets (Teaneck, Hamilton and Stuyvesant Roads and Van Cortlandt Terrace) 11, including that here involved, are of 40-foot widths. The other ten are all built upon. Most of the other homes in the specified area are built upon 60-foot lots, although some are on larger plots.
At the two hearings before the board of adjustment the opposition was by nearby homeowners who felt that building on this lot would downgrade the neighborhood and argued that plaintiff would sustain no hardship if the variance were denied as it knew of the ordinance requirement when it bought the lot. The last consideration was the substantial basis for the denial of variance by the board of adjustment although it also found in its resolution of denial that granting the variance "would alter the essential character of the neighborhood" and would involve "substantial detriment to the public good" and impair "the intent and purpose of the Zone Plan and Zoning Ordinance of the Township of Teaneck."
At the outset, we find no support in this record for the finding, in effect, that adding an eleventh to the ten present dwellings on 40-foot lots in the 57-parcel area mentioned above would "alter the essential character of the neighborhood." As for the other mentioned finding by the board, while it is true that the statute precludes the grant of a variance without a finding of the "negative criteria" of absence of substantial detriment, etc., and of impairment of the zone scheme, a denial of a variance is not automatically sustainable upon a perfunctory finding, phrased in the statutory conclusionary language, of applicant's failure to satisfy such negative criteria, ...