Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
[100 NJSuper Page 582] These are two appeals, consolidated for argument, involving separate actions of the Board of Adjustment of Fairview in reference to the same property. In No. A-42-67, referred to hereinafter as the Branagan case, the Law Division, Bergen County, affirmed the grant of a "hardship" variance by the board under N.J.S.A. 40:55-39(c). in favor of the Schettinos, owners of a 25' X 112' lot, for the erection of a two-family dwelling thereon. In No. A-446-66, hereinafter denominated the
Wehmann case, the Law Division, prior to its decision of the Branagan case, had reversed the board of adjustment in respect of its ruling, in an appeal brought under N.J.S.A. 40:55-39(a). from an adverse decision by the building inspector, that the Schettinos had the right, under an exemption based upon section 8 of the 1959 amendment to the borough's zoning ordinance, to build the two-family house on the lot. The court construed that section against the claimed right of construction.
Certain facts stipulated or proved are material to resolution of both appeals.
In May 1965 the Schettinos purchased from one Schwarzenbach three contiguous lots, each 25' X 112', numbered, reading from west to east on an old filed map, 25, 26 and 27. The lots front on Prospect Avenue and lot 25 abuts Cottage Place at the northeasterly corner of the intersection of these streets. The deed of conveyance referred to and described lots 25 and 26 as a parcel separate from lot 27, as follows:
"* * * [W]hich two (2) lots, plots, tracts or parcels of land hereby intended to be described and conveyed together forming a plot of tract of land Fifty (50) feet in width, front and rear, with a depth of One Hundred and Twelve (112) feet on each side and throughout, and situated at the Northeasterly corner of Cottage Street and Prospect Avenue * * *."
A 60-year-old dwelling stood on the middle lot, 26. At the rear of lots 26 and 25 there was an old structure, used as a garage for the dwelling on lot 26, which occupied portions of both lots, with its entrance facing Cottage Place. On the rear of lot 27 was a small storage shed.
The area where the property is situated has for some time been zoned for two-family residential occupancy. Section 5 of the zoning ordinance prior to the March 24, 1959 amendment provided:
"Lot area per family: No dwelling or apartment house shall hereafter be erected or altered to accommodate or make provision for more than 2 families to each 2,500 square feet of lot area, provided
that any plot existing at the time of the passage of this Act, may be built upon for dwelling purposes."
On March 24, 1959 section 5 was amended to read:
"'Lot Area Per Family' No dwelling shall hereafter be erected or altered to accommodate or make provisions for more than two families to each four thousand (4,000) feet of lot area. (A lot having a frontage of 40 feet ...