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Bove v. Board of Adjustment of Borough of Emerson

Decided: March 20, 1968.

FRANK BOVE AND JOSEPHINE BOVE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF EMERSON, DEFENDANT-RESPONDENT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

In this proceeding in lieu of prerogative writs, the Law Division refused to set aside a determination of the Board of Adjustment of the Borough of Emerson denying plaintiffs' application for a variance to erect a dwelling house on an undersized parcel of land. Plaintiffs appeal.

They are the owners of four contiguous lots at the southeast corner of High Street and Jefferson Avenue, having a frontage on High Street of 106.62 feet, with a depth of 100 feet and a total area of 10,662 square feet. These lots are situate in Block 307 in a residential zone of the borough and were originally known as lots 36, 37, 38 and 39 (herein referred to by those lot numbers). They are also described as lots 7, 8, 9 and 10, respectively, on the Tax Assessment Map of 1959, and collectively as lot 7 on the revised 1960 Tax Assessment Map.

Interior lots 36 and 37 (total frontage 50 feet), upon which plaintiffs have located their home, were acquired by them in 1939. In 1949 they bought the corner lot 39 which has a frontage of 31.62 feet, and thereafter, in 1953, they procured the adjoining interior lot 38, having a frontage of 25 feet. When lot 39 was purchased the municipal zoning ordinance required a frontage of 60 feet for corner lots. The present zoning ordinance, enacted in 1959, provides for a minimum corner lot frontage of 85 feet with a total area of 8500 square feet, and retains the minimum 75-foot frontage

for interior lots which prevailed at the time lot 38 was acquired.

In 1967 plaintiffs applied for a variance under N.J.S.A. 40:55-39(c) to erect a single family dwelling upon lots 38 and 39 (total frontage 56.62 feet). At the hearing before the Board of Adjustment plaintiff Frank Bove testified that these lots were purchased with the intention of building a house thereon and, unless a variance were granted, they "will be a dead piece of ground." He stated, "* * * and I kill myself cutting the lawn and buying grass seed. After all, I want to try to get something out of it."

The board found specifically that the parcel of four lots had a frontage of 106 feet and it appears as one individual homesite without any artificial or natural indication of division; the grass, shrubs and trees "and some ornamentation" thereon are part of the general landscaping of the plot on which the house is located; the two lots in controversy have been used since 1955 as an integral part of the homesite; for an eight block distance there is only one property on High Street with a house on a 50-foot lot, two on lot frontages of 75 feet, and the rest on lots with frontages of between 80 feet and 169 feet; and the character of the homes on High Street is different from that of the intersecting streets.

In its resolution denying plaintiffs' application the board declared that the granting of the requested variance would create additional substandard lots; would make it "almost impossible to maintain the present standards and prevent a flood of other applications to subdivide lots for economic gain"; the applicants have not shown any hardship that would warrant the variance; and

"It is the further judgment of this Board, after weighing the integrity of this street, the character, size and frontage of lots, that the granting of this variance would be inconsistent with the maintenance of the area and would be substantially detrimental to the public good and would substantially impair the intent and purpose of the zoning ordinances and the plan of the Borough of Emerson."

The trial court found that the presumption of validity which attaches to the board's action had not been overcome.

Plaintiffs, in their brief on appeal, stress an observation made by the Law Division in its opinion that "there is a great deal of confusion in the law and the appellate decisions are not always clear when Burke v. Spring Lake Board of Adjustment, 52 N.J. Super. 498 (App. Div. 1958), shall be applied," and they argue if the Burke decision "is valid, the ownership of adjoining property would not be ...


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