On appeal from Superior Court, Law Division, Morris County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D.
This is another in the long series of cases in our courts involving application for variance from the bulk provisions of a municipal zoning ordinance where a lot was once in conformity with ordinance requirements but was rendered nonconforming by reason of later upgrading of the bulk specifications. For the latest such case see Miriam Homes, Inc. v. Perth Amboy Bd. of Adj. , 156 N.J. Super. 456 (App. Div. 1976), aff'd o.b. 75 N.J. 508 (1978).
In the present case there are two applications for variance under N.J.S.A. 40:55D-70(c),*fn1 one by the owners of an undersized lot and the other by the conditional contract purchaser from the owners who is a contractor intending to build a two-story home on the 110-foot lot to sell for $110,000 if the variance is granted. Since the second application will be mooted if the first is held to have been justifiably denied, we initially confine our discussion to the merits of the owners' case. The Board of Adjustment of Morris Township denied the variance, and the Law Division affirmed. Hence this appeal by the owners.
The owners of the lot for which a variance is sought also own an adjoining 110-foot lot on which they built a home in 1952 which they still occupy. The subject lot was acquired later, but prior to the zoning upgrading. Current minimum lot frontage under the zoning ordinance is 175 feet. Substantially all the physical and historical facts affecting the issue before us are set forth in the findings and conclusions of the board of adjustment. Subject to slight qualifications to be noted, the findings of fact are adequately supported by the evidence adduced at the hearing held by the board. The findings are as follows:
1. Both lots involved, if treated as a single parcel, have a frontage on Westminster Place (a public street) of 220 feet and a depth of 170 feet, with an area of 37,400 square feet.
2. Lots 2 and 3 [the locus in quo ] each have a frontage on Westminster Place of 110 feet and a depth of 170 feet. They each have an area of 18,700 square feet, which is approximately 53% of the required area.
3. Said lots are located currently in an RA-35 residential zone. Said zone requires a minimum lot area of 35,000 square feet, a minimum lot width of 175 feet, a minimum lot depth of 175 feet, a minimum front yard setback of 75 feet, a minimum side yard of 30 feet but both side yards must equal 75 feet, and a minimum rear yard of 25 feet. The maximum building coverage allowed is 15%, maximum height of the building is 35 feet and may not exceed 2 1/2 stories, nor may the maximum livable area exceed 3,000 square feet.
4. The particular RA-35 zone in which the premises are located is surrounded on three (3) sides by an Open Space/Government Use Zone and on the fourth by lands in the Town of Morristown and is relatively small compared to said surrounding zone. Prior to 1955, this zone was part of a much larger zone requiring a minimum lot area of 15,000 square feet, a minimum lot width of 100 feet, a minimum lot depth of 150 feet, a minimum front yard setback of 50 feet, a minimum side yard of 10 feet and a minimum rear yard of 25 feet. In 1955, this larger zone was divided into two zones; one zone designated R-3 (a relatively small portion of the entire zone) contained essentially the same requirements as the previous zone, and one zone designated R-2 contained essentially the same requirements as the present RA-35 zone in which the premises in question are located. In 1972, the R-2 zone was substanially reduced, a portion thereof was added to the R-3 zone and an extensive area was designated as an office and laboratory zone. In 1974, the R-2 zone was further reduced in size, the large portion was designated as an Open Space/Government Use Zone and a small area was added to the R-3 zone (redesignated RA-15). What remained of the R-2 zone was what is now the present RA-35 zone. The neighborhood in question constitutes all of the area included in this RA-35 zone and consists of property abutting Westminster Place, Overlook Road, Longwood Road and Edgewood Road. It consists of a neighborhood access to which is only obtained through Morristown by the use of Overlook Road which, generally speaking, has a north-south axis, and two short side streets, Longwood Road to the south and Westminster Place to the north. Edgewood Road to the east would parallel Overlook Road but it is apparently not a travelled street; the testimony suggested it may have been vacated and the zone map delineates it with dashed lines.
5. The testimony established that Lot 3 was purchased by the Galdieri's in September of 1950 and Lot 2 was purchased in March of
1952. The presently existing dwelling was built on Lot 3 in 1951 and was completed prior to the acquisition of Lot 2. The applicants' daughter testified that the purpose leading to the purchase of Lot 2 was to provide a site for the building of a house for her when she married. Over the years, Lot 2 was left unimproved except for some gardening, and the weeds and brush were kept cut back. At the time of the purchase of these lots, the dwellings on Lots 1 and 4 [see par. 7 infra ] were in existence.
6. At the time that Lots 2 and 3 were acquired they were in a zone requiring minimum size lots of 15,000 square feet with a minimum frontage of 100 feet. These lots, with others, were laid out on a map dated December, 1931 and have been so delineated on the Township Tax Map for many years. The proposed use of Lot 2 would substantially comply with the area, bulk and yard requirements of the current RA-15 residential zone (except for the maximum livable area requirement) which would be similar to the zoning in effect when said lot was purchased.
7. There are five lots, including the lots in question, located on the northeasterly side of Westminster Place between Overlook Road and Edgewood Road. Lot 1, adjoining Lot 2 on the southeast, is in separate ownership and is of the approximate size of Lot 2 and is improved by a dwelling. Lot 4, adjoining Lot 3 on the northwest is identical in size and contains a dwelling and garage and is held in separate ownership. Lot 5, to the northwest of Lot 4, is located at the corner of Westminster Place ...