For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Francis, J.
[52 NJ Page 215] The issue here is whether plaintiff Gougeon is entitled to a variance or a special exception from the lotarea requirement and the side yard restrictions of the zoning ordinance of the Borough of Stone Harbor. The relief sought was opposed particularly by the intervenors Joseph F. and Margaret E. Greene, husband and wife, and Dillwyn T. and Bernice Wattis, also husband and wife. The Greenes own the property adjoining plaintiff's lot on the east. At the outset
of the proceedings the Wattises owned the property adjoining plaintiff's lot on the west. The Wattises' property, an undeveloped lot, has since been sold and Mr. and Mrs. Wattis are no longer in the case. Denial of the application by the Board of Adjustment was reversed by the Law Division of the Superior Court, and the reversal was affirmed by the Appellate Division in an unreported opinion. We granted certification. 51 N.J. 184 (1968).
Plaintiff is the owner of an undeveloped 30' x 110' lot known as 415 Berkley Road, Stone Harbor. It is bounded by Berkley Road on the north and by the Stone Harbor Basin on the south. The record indicates that in 1921, when a private company was developing the Borough, lots of 30 feet frontage were the type commonly sold in this area. The lot was acquired in 1936 by Gougeon's father. In 1946 the father conveyed it to plaintiff and his two brothers. By deed dated April 2, 1958 the two brothers transferred their interest to plaintiff.
In December 1947 the Borough enacted a zoning ordinance. It placed the lot in question in the Residential A District. The requirements of the district are that no building "shall be erected on a lot of less than 5,000 square feet." No frontage requirement was included. Thus a lot 30' x 167' would be a conforming lot. It was provided also that not more than 25% of the lot area could be occupied by a building; further, a 10-foot front yard, a minimum 25-foot rear yard and side yards each of a minimum width of 10 feet were required. No building, except a garage or accessory structure, was authorized which would be less in area than 900 square feet, measured at ground level.
The anomalous character of this portion of the ordinance is apparent at once. A 30' x 170' plot would contain 5,100 square feet and so would be an authorized building lot. Yet if 10-foot side yards are required, the building would not exceed 10 feet in width. In order to meet the area requirement of 900 square feet, the building would have to be 10' x 90' -- an impossible prospect. On its face the practical effect
of the section is to render 30' lots inutile for residence purposes.
Obviously, when adopting the zoning ordinance the governing body recognized that there were many 30' lots in the Borough, some with homes already built upon them and some undeveloped. The record is not clear as to the number of such lots in plaintiff's area on which homes have been constructed. The statements vary: 17 or 18 out of 60 lots in the area; 21 out of 60; 30 out of 60; about 30 homes on such lots within 300 yards or one-quarter of a mile of plaintiff's lot; six out of 12 homes within 200 feet of plaintiff's property are on 30' x 110' lots. The matter should not have been left in so ambiguous a state. Precise proof is readily accessible. In fact there is no reason why the parties could not have agreed upon the facts.
In order to provide an avenue of relief for the undeveloped 30 foot lots, an exception was authorized in section 9(c) of the ordinance. It appears to be an amendment, but no one mentions it as such, nor does the date of adoption appear. It says:
"Where a lot containing less square footage than required for the district in which it is located, was purchased prior to the effective date of this ordinance, to which this ordinance is an amendment, the then and now owner thereof may erect upon such lot a building with side yards of lesser width than required for the aforementioned district but in no case less than 5 feet for each side yard and 6 feet from the front property line, subject to the approval of the Board of Adjustment as hereinafter created."
The evidence reveals that two exceptions or variances have been granted under this section since its adoption. They were granted to owners of undersized lots.
Early in 1965 plaintiff decided to build a home on his 30' x 110' plot. According to the plans submitted to the Borough, it is to be a year-round insulated house, as contrasted with most of the houses in the area which are summer residences. Gougeon and his wife intend to live there permanently upon his retirement. His building is to be a two-story frame
structure with a concrete and masonry foundation. It will contain three bedrooms, two bathrooms and a powder room, a living room, den, kitchen and utility room. Dimensions of the building are 20' x 38', an area of 760 square feet or 23% of the 3,300 square foot lot. A permit to build was denied by the Building Inspector because the lot ...