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Hill Homeowners Association v. Zoning Board of Adjustment

Decided: June 3, 1974.

HILL HOMEOWNERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, BRUNO BARBARESE AND VELIA BARBARESE, HIS WIFE, AND JOSEPH WEINSTOCK AND HILDA WEINSTOCK, HIS WIFE, AND MARTIN L. HELFGOTT AND ESTHER HELFGOTT, HIS WIFE, PLAINTIFFS,
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, ELIAS DRAZIN AS BUILDING INSPECTOR OF THE CITY OF PASSAIC, MAYOR AND COUNCIL OF THE CITY OF PASSAIC AND HARRY STANFORD, DEFENDANTS



Schwartz, L., J.c.c., Temporarily Assigned.

Schwartz

[129 NJSuper Page 174] Plaintiffs challenge the approval by the Board of Adjustment of the City of Passaic of an application under the provisions of N.J.S.A. 40:55-39(c) for variances permitting the construction of an apartment house on premises at the corner of Aycrigg Avenue and High Street in accordance with building plans which failed to conform to the zoning ordinance

in the area of side yard, parking spaces and floor area ratio regulations.

The building plans provided for 252 apartments and various facilities to accommodate the tenants on a plot of land containing 85,750 square feet. The testimony proferred by the applicant related to elevator service, preservation of greenery, water supply, auxiliary power system, garbage collection and ventilation and, in fact, these facilities became the subject of various conditions imposed by the board.

However, no testimony was offered that an apartment building of smaller dimensions which could accommodate side yards, parking spaces and floor area ratio in conformance with the zoning ordinance, could not be readily constructed on the site. Nor could the evidence support a finding that other permitted structures in this zone were not reasonably feasible on a tract of this size. Dissenting opinion of Judge Kolovsky, Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., 127 N.J. Super. 60 (App. Div. 1973), aff'd o.b. 64 N.J. 334 (1974).

If the argument is that a building of smaller dimensions or fewer apartments would not be as profitable, it is fundamental that mere economic hardship is not a sufficient special circumstance upon which to ground a variance. Wilson v. Mountainside, 42 N.J. 426, 451 (1964); Bern v. Fair Lawn, 65 N.J. Super. 435, 450 (App. Div. 1961).

There is no showing in the record of any exceptional narrowness, shallowness or shape of the plot, exceptional topographic condition of the land or any other physical condition thereof which would cause undue hardship or peculiar or practical difficulties to the applicant if the provisions of the ordinance were enforced. There is nothing in this property which is unique to it, differentiating it physically from other property in the zone. Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 174 (1968).

The plot is not undersized under the terms of the ordinance. The applicant seeks to shoehorn an oversized structure into an area not large enough to accommodate the parking

and side yard requirements. The personal hardship does not constitute sufficient ground for the granting of a variance under subsection (c).

The pretrial order refers to legal issues arising from an area of testimony which has not been heretofore reviewed in any reported decision in this State and which is ripe for the court's consideration in the light of the widespread practice of admitting similar evidence which prevails in many municipalities.

The president of the planning board was called as a witness at the instance of the board of adjustment. He was not qualified as a planning expert but recited the minutes of the planning board meeting at which plaintiff had applied for and was granted site plan approval of this project, in accordance with its authority under the local zoning ordinance.

The planning board record, in addition, contained the recommendation that a variance be approved by the adjustment board for the proposal which was deficient in the area of the floor area ratio, side yard and parking spaces requirements of the ordinance.

The report and recommendation of the planning board presented in a variance hearing gives rise to the issues of whether the application for site plan approval should precede or succeed the variance hearing; whether the impartiality of the quasi -judicial board of adjustment is tainted when influenced by a planning board decision and recommendation, and whether site plan applications are statutorily cognate to functions of the board of adjustment rather than the planning board.

I

Unless the premises and the structure which are the subjects of an application for site plan approval conform in all respects to the zoning ordinance, or unless the situs and the proposed construction decisionally conform by grant

of the adjustment board (or governing body under a (d) variance), the consideration of site plan approval is premature.

A site plan reviewing board (the planning board in Passaic) cannot require an applicant to place any structure, whether it is a principal structure or accessory building, or whether it is parking or driveway pavement or barrier, etc., in such a position that it violates the provisions of a zoning ordinance or the terms of a variance.

Until the board of adjustment expresses in its resolution the nature of the adjustment or deviation from the zoning ordinance permitted by it, the site plan reviewing board cannot determine if its requirements will impinge upon the permission vested or conditions imposed by the adjustment board by virtue of its superior statutory authority. Further, any recommendation it makes to the board of adjustment is an impropriety to which we will later advert.

Site plan applications should not be entertained until after the zoning authorities have resolved applications for ...


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