Kolovsky, Matthews and McGowan. The opinion of the court was delivered by Kolovsky, P.J.A.D.
[123 NJSuper Page 297] Defendant township appeals from a judgment declaring that
* * * the provision of S-60 of the Springfield Township Zoning Ordinance of September, 1968, is invalid, arbitrary and unreasonable in its application to the rear of Lots 1 and 2 of Plaintiffs' subject property; that Plaintiffs are entitled to use the said rear portions of Lots 1 and 2 of the subject premises for office "O" zone purposes, including use for additional on site parking in conjunction with the existing office building and parking facilities; * * *
The judgment further provided that if plaintiff uses the rear portions of the lots for parking, it shall comply with ordinance provisions requiring a 10-foot buffer area, a 6-foot high close woven wood fence, and appropriate evergreen shrub screening.
The controversy here presented stems from the fact that, under the township's zoning ordinance, properties on the north side of Morris Avenue extending three blocks west from Short Hils Avenue are zoned for office purposes to a depth of only 150 feet. While lots 3 and 4 of plaintiff's property extend less than 150 feet north of Morris Avenue, the depth of lot 1 is 184 feet and that of lot 2, 195 feet.
Lot 1, fronting 105 feet on the north side of Morris Avenue and 185 feet on the west side of Short Hills Avenue, had been owned by Anna O. Grate. Lots 2, 3 and 4, which had been owned by a Mr. and Mrs. Lubenau, is a plot fronting approximately 150 feet on Morris Avenue and 118 feet on Lewis Drive. Lot 2, which adjoins lot 1 on the west, is 60 feet wide and 195 feet deep. The depth of lots 3 and 4 from Morris Avenue is 118 feet.
Plaintiff AMG Associates had contracted to purchase lot 1 from Mrs. Grate and lots 2 to 4 from Mr. and Mrs. Lubenau. As required by their contracts, Mrs. Grate and Mr. and Mrs. Lubenau applied to the board of adjustment for use variances, pursuant to N.J.S.A. 40:55-39 (d), so that the portions of lots 1 and 2 extending beyond the 150-foot zone line could be used for office purposes. The building plans prepared by AMG Associates and submitted with the applications provided for the construction of an office building on the front 150 feet of lot 1 and the use of the rear of lot 1 and all of lots 2, 3 and 4 for parking.
The board of adjustment recommended that the variances be granted, with several limiting conditions. The township committee rejected the recommendation and denied the variances sought.
Plaintiff AMG Associates and Anna O. Grate then filed a complaint in two counts. (The sale by Mrs. Grate was thereafter consummated and she was eliminated as a party plaintiff by the pretrial order.) The first count sought an adjudication not only that the township committee acted arbitrarily in denying the variance but also that the conditions imposed by the board in its recommendation for a variance were arbitrary. The second count sought an adjudication that the township's 1967 zoning ordinance was "void, unconstitutional and ineffective to prevent plaintiffs, or any devisees thereof from using the entire subject premises as permitted in said 'O' district of the Township of Springfield," and a judgment directing the building inspector to issue a permit to erect the proposed office building and "to use the entire subject premises for 'O' zone use."
The action was not pretried until 15 months after the complaint was filed. By that time plaintiff had changed its building plans and, after the institution of this action, had erected a three-story office building on lots 3 and 4 at the corner of Morris Avenue and Lewis Drive.
The trial court, Grate v. Township of Springfield , 117 N.J. Super. 130, ruled that the changed circumstances resulting from the construction of the building on a portion of the tract other than that indicated on the plans submitted to the board and the township committee made it ...