Lynch, Larner and Horn. Horn, J.A.D. (dissenting).
Plaintiff, a contract purchaser of a lot with a frontage of 25 feet and depth of 90 feet, applied for a variance from the zone requirements in order to construct a one family home. N.J.S.A. 40:55-39(c). The local ordinance required a minimum frontage of 50 feet and area of 5,000 square feet. In addition, the application sought a variance for side yards totalling five feet rather than the minimum requirement of ten feet.
The board of adjustment denied the variance in a resolution which found that the requested variance "would impair the intent and purpose of the Zone Plan" and "would be substantially detrimental to the public good." It also concluded that the applicant had failed to establish the requisite hardship required by the statute.
In its subordinate findings the board pointed out that the variance, if granted, would adversely affect the values of adjacent properties, that there was insufficient proof of inability to dispose of the lot through other means, that there existed potential drainage problems with respect to the rear of the property, and that there are no one-family homes on a 25-foot lot on the entire street.
In an action in lieu of prerogative writs the trial court reversed the action of the board of adjustment and directed the grant of a variance and the issuance of a building permit. The court's sole finding was that "there has been a satisfaction on the part of the plaintiff referable to the requirements as to the negative criteria and hardship."
In assessing the propriety of the judgment below it is advisable to point out briefly the respective limitations on the function of the trial court and the appellate court in reviewing a board's denial of a variance.
It is fundamental that the action of the board is presumptively correct and that plaintiff has the burden to prove that it was arbitrary and capricious. Rexon v. Haddonfield Bd. of Adj. , 10 N.J. 1, 7 (1952). The trial court is not permitted to substitute its own judgment for that of the local board, and can only overturn the board's determination if it finds on the record that the board has acted arbitrarily. Ibid. Where the board's action consists of a denial, the court must sustain the same unless there is "an affirmative disclosure that it was unreasonable, arbitrary or capricious." Herman v. Parsippany-Troy Hills Tp. Bd. of Adj. , 29 N.J. Super. 164, 167 (App. Div. 1953). See also Ring v. Rutherford Mayor and Council , 110 N.J. Super. 441 (App. Div.), certif. den. 57 N.J. 125 (1970), cert. den. 401 U.S. 911, 91 S. Ct. 876, 27 L. Ed. 2d 810 (1971). And at the appellate level we must examine the record to determine whether it supports the trial court's conclusion to that effect. Home Builders Ass'n of Northern N.J. v. Paramus , 7 N.J. 335 (1951).
Our review of the record herein convinces us that the trial court did not make a finding that the board of adjustment acted arbitrarily, but rather decided the case ab initio on its merits. And even if the court's conclusion is interpreted as an implied finding of arbitrariness, the record before the board fails to demonstrate that the applicant bore its burden of proving that the board's action was arbitrary or capricious.
The requested variance sought to construct a home having a frontage of 50% of the ordinance minimum, an area of less than 50% of the required square footage and side yards 30% less than the minimums. The uncontradicted evidence was that there is no other home on the street with a frontage as small as 25 feet.
Under such a factual picture, regardless of the board's finding as to the affirmative hardship criterion, it had sufficient evidence to conclude, within the broad discretion granted to it as a local governmental agency, that the negative criteria of the statute were not met. If the trial court disagreed with this conclusion it was not authorized to substitute its own judgment, for plaintiff failed to establish the arbitrariness which is a prerequisite for the court's interference with the discretion vested in the board of adjustment. For the same reason, as an appellate court, we are also constrained to uphold the determination of the local board regardless of our independent view as to the advisability of the grant or denial of the variance.
Under a section (c) variance (N.J.S.A. 40:55-39(c)) an applicant has the burden of establishing not only the affirmative prequisite of exceptional and undue hardship but also the negative prerequisite that the relief can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." See Griffin Const. Corp. v. Teaneck Bd. of Adj. , 85 N.J. Super. 472, 475 (App. Div. 1964), certif. den. 44 N.J. 408 (1965); Bierce v. Gross , 47 N.J. Super. 148, 157 (App. Div. 1957). The board found that plaintiff failed to establish this prerequisite, and we conclude that the record fairly supports this finding.
The trial judge relied on Mischiara v. Piscataway Tp. Bd. of Adj. , 77 N.J. Super. 288 (Law Div. 1962), in arriving at his conclusion. That case is not controlling because the record before the board was quite different from that before the board herein. There the evidence established that there were six other nonconforming uses in the area on undersized lots.
In addition, an expert testified that the construction on plaintiff's lot would neither depreciate the neighborhood nor impair the intent and purpose of the zoning plan. And the board made no factual findings other than the recitation of the statutory language to support the denial. The trial court thus concluded that the board's action was arbitrary.
Another case cited by plaintiff, Griffin Constr. Corp. v. Teaneck Bd. of Adj., supra , is also distinguishable on its facts in that there was evidence of ten other structures in the area on lots with substandard frontage equal to that of the applicant and still others with a frontage less than the ordinance minimum. The court found that the addition of an "eleventh to the ten present dwellings on 40-foot lots" contradicted the board's finding that it would alter the essential character of the neighborhood. Id. , 85 N.J. Super. at 475. In addition, the board's findings were wanting in that they merely mouthed the conclusory statutory language without evidential support. In the case at bar the board made more meaningful findings which are supported by the record of the hearing.
Contrary to the conclusion of the dissent herein, we are of the opinion that a remand is inappropriate. The applicant should not be afforded another opportunity to present further proofs. And since we view the board's findings as adequate in light of the burden of proof which the law imposes upon the applicant, we also conclude that a remand for further findings is fruitless.
We cannot accept the premise that mere inability of a property owner to construct a building because of violation of ordinance standards dictates the imperative that a variance be granted. As articulated by the Supreme Court in Collins v. Margate City Bd. of Adj. , 3 N.J. 200 (1949):
HORN, J.A.D. (dissenting). My disagreement with the conclusions of my learned colleagues rests on three bases. First, in general, I believe that in cases such as the instant one, where the denial of a variance amounts to confiscation of the subject premises, the zoning board is obliged to view the application with a mind to grant relief, if at all possible. This was not done. Second, specifically and apart from the first, I believe that the majority err in accepting the conclusory statements of the zoning ...