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Alperin v. Mayor and Township Committee of and Township of Middletown

Decided: May 5, 1966.

MARTIN ALPERIN AND BARBARA ALPERIN, PLAINTIFFS,
v.
THE MAYOR AND TOWNSHIP COMMITTEE OF AND TOWNSHIP OF MIDDLETOWN, MONMOUTH COUNTY, NEW JERSEY, A MUNICIPALITY OF THE STATE OF NEW JERSEY, THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLETOWN, MONMOUTH COUNTY, NEW JERSEY, RICHARD W. SEUFFERT, INDIVIDUALLY, AND NEWTON A. MALLETT, INDIVIDUALLY, DEFENDANTS



Horn, J.s.c.

Horn

Plaintiffs brought their action to restrain defendants from enforcing one of two conditions imposed on them as conditions precedent to the granting of a variance to a zoning ordinance.

In May 1959 plaintiff Martin Alperin was a practicing physician. He and his wife Barbara acquired title to the land and the building thereon located on New Monmouth Road, a paved county highway, at its intersection with Oakwood Way, a township highway, in the Township of Middletown, Monmouth County (Township). In 1961 they resided in a portion of the premises and another part was used as medical

offices. As his practice grew, the doctor found the office facilities limited and therefore desired to build an addition thereto.

The property in question is situate in a zone designated R-22 Residential which does not permit the use of any part of a building as a doctor's office. By reason thereof he was restricted from increasing the area of the nonconforming use.

On or about February 1, 1964 Dr. Alperin applied to the defendant board of adjustment (board) for a variance to construct an addition to his office approximately 10 feet in width and 24 feet in length. On or about February 10, 1964 the township committee, following affirmative action by the board, authorized the variance on the conditions that plaintiffs double the size of their off-street parking facility and also that they deed to the township sufficient land for a 30-foot right of way from the center line of the road. This required plaintiffs to deed a strip of land 9.25 feet wide across the frontage of their lot. Plaintiffs were notified of the grant of the variance and the conditions imposed.

Before commencing construction plaintiffs determined that the doctor needed a larger addition, i.e., 12 feet by 24 feet. He therefore made a further application to the board, with a request that the variance be amended accordingly. On or about May 18, 1964 the board determined that this was a particular case in which special reasons existed and recommended to the municipal governing body that the variance be granted on the same conditions that the initial variance was granted. On May 26, 1964 the township committee, acting upon this recommendation, granted the new variance conditioned as aforesaid.

Plaintiffs were notified of the governing body's action and commenced to build without complying with the condition requiring the deed. Cf. Cohen v. Borough of Fair Lawn, 85 N.J. Super. 234, 239 (App. Div. 1964), on subject of good faith. On or about June 16, 1964 the construction was halted by the building inspector, who stated that plaintiffs were not to proceed further until the township was given the right of

way. This action was then filed to restrain the enforcement of the condition. An order of this court was made upon the consent of the parties on June 26, 1964 which provided that plaintiffs could complete the addition, but if the final judgment herein is adverse to them, then they would execute and deliver the deed.

Plaintiffs are willing to comply with the condition requiring the increase of the parking facility, so that same is not in issue.

At the trial it was stipulated that the second condition required only a right of way (easement), and that though plaintiffs' land was situate on a corner, the grant of the right of way was only with respect to New Monmouth Road.

Plaintiffs contend that the requirement that they give the deed is illegal, confiscatory and unconstitutional, in violation of N.J. Const. 1947, Art. IV, ยง VI, par. 3. They argue that there is no statute or other authority authorizing same; that the Legislature has authorized municipalities to acquire land for highway purposes only by gift, devise, purchase or condemnation (N.J.S.A. 40:60-2), and that the imposition of such condition is opposed to public policy.

At the hearing it was disclosed that a residential subdivision is being built approximately one-quarter of a mile away on New Monmouth Road and that the property in between is partially developed and suitable for further development. The highway in question was previously widened at the location of this development. An expert testified that a professional office inherently generates a larger volume of traffic than a one-family residence. He also stated that with the increased traffic generated by the afore-mentioned subdivision and the inherent generation of a larger volume of traffic by accommodating more patients, the widening of the highway would be beneficial for the passage of traffic. He also said that if the highway in front of plaintiffs' ...


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