For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[54 NJ Page 139] This zoning case is before the Court for the second time. Plaintiff John H. Gougeon, owner of an undeveloped lot on the bay or basin front in the Borough of Stone Harbor, sought a variance or exception from the lot-area requirement of the zoning ordinance in order to build a year-round home thereon. After a hearing the Board of Adjustment denied the application. Subsequently the Superior Court, Law Division, reversed the Board's action and the
Appellate Division affirmed the reversal. After granting certification, 51 N.J. 184 (1968), we concluded the record was inadequate for a proper disposition of the matter and remanded to the Board for further hearing and redetermination. 52 N.J. 212 (1968). More particularly, we directed that on the rehearing, consideration be given to conditions, particularly lot sizes, both developed and undeveloped, over the widest relevant area bearing upon plaintiff's right to a variance or exception. In addition, referring to N.J.S.A. 40:55-39, we instructed the Board to deal precisely with the question whether a variance or exception could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and ordinance. And we indicated that if those conditions were met "the right to a special exception or a variance would appear to exist." 52 N.J., at 220. We said also that whatever conclusion was reached with respect to these negative criteria, the specific factual findings and reasons on which they were based should be stated. Finally, we said that if the evidence at the new hearing satisfied the negative criteria, the Board could consider, in deciding whether denial of relief would visit exceptional or undue hardship, whether plaintiff had received any offers from third persons to buy his lot at its fair market value. 52 N.J., at 224.
The rehearing was held and additional evidence was received by the Board. Unfortunately a substantial part of the time was spent in colloquy and objections between counsel for the Board of Adjustment and for the intervenors Greene on the one hand and counsel for Gougeon on the other. Much of the difficulty centered around efforts by the intervenors and Board counsel to limit the geographical area to be considered by the Board. The intervenors had come to the hearing planning to limit the territory to be discussed to a certain area, i.e., the southern portion of a peninsula on which the lot in question is located. The area is described as blocks 99, 100 and 200 on the tax map and in total length, from 99th Street to the bay, is about 1,060 feet, a distance excluding
the width of the two east-west streets, approximately equal to the frontage of thirty-two 30-foot lots. The intervenors, with the concurrence of the Board attorney, prevailed upon the Board to accept their so-called environmental limitation over Gougeon's objection that a significantly larger area ought to be considered. In fact Gougeon wanted the Board to consider the densely populated residential area just 175 feet across the bay basin from his property, where most of the homes were built on lots the same size as his. This section is in full view of his property and the other lots on Berkley Road, where plaintiff's lot is situated, and is separated only by a distance of less than six 30-foot lots. These lots are in block 103, and as one map of the intervenors shows, the great majority of them have 30-foot frontage. The photographs in evidence showing the lots of the intervenors Greene and of the plaintiff, as well as the development across the strip of water, give the appearance that the two sections are very close to each other. In our view Gougeon's suggestion would have provided a broader base for evaluating his claim for relief and should have been accepted. Acceptance would have been thoroughly consistent with the statement in our earlier opinion that the Board should give "consideration * * * to conditions existing over the widest possible residential area which may reasonably bear upon the plaintiff's right to a variance or exception." 52 N.J., at 222. Considerable justification for the quoted suggestion is found in the statement of the intervenors' real estate expert who described the development of Stone Harbor as dense and congested.
At the conclusion of the rehearing the Board recessed for 20 minutes and returned with a decision denying the variance or exception. It said also that even if the proof did satisfy the negative criteria of the statute, the relief sought would be denied if within 15 days the intervenors offered to pay the fair market value of the lot which it found to be $8,100. Such an offer in the Board's view would remove any claim of undue or exceptional hardship. The
offer was made and rejected. Pursuant to our reservation of jurisdiction Gougeon now seeks a review of that decision here.
In order to present the case in its present form it is necessary to repeat some of the facts outlined in our earlier opinion. Gougeon 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-foot frontage and 110-foot depth were the type commonly sold in the area. Plaintiff's lot was acquired in 1936 by his 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. 52 N.J., at 216.
In December 1957 the Borough enacted a zoning ordinance which placed plaintiff's lot in the Residential A district. In such district no building can "be erected on a lot of less than 5,000 square feet." There is no minimum frontage requirement. Thus a lot 30' x 167' would be a conforming lot. The ordinance 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 construction, except for a garage or accessory structure, was permitted which would be less in area than 900 square feet, measured at ground level.
The odd character of this ordinance is obvious. A 30'x 170' plot would contain 5,100 square feet and so would be a conforming building lot. Yet if 10-foot side yards are required, the building could 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 ordinance is to render 30-foot lots useless for residential building. 52 N.J., at 216, 217.
As we noted in the earlier opinion, obviously when the governing body adopted the zoning ordinance it knew 30-foot
lots were characteristic of the Borough, many of which had homes already built upon them and many of which were undeveloped. This knowledge led the Council to create an avenue of relief for owners of undeveloped 30-foot lots. Section 9(c) was added which provides:
"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 ...