On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes, and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Schreiber, J. Pashman, J., concurring. Justice Schreiber joins in this opinion.
At issue in this case is the propriety of denying a variance from area requirements in a zoning ordinance where the property owner proposes to comply with the ordinance's use restrictions. The proceedings were initiated when plaintiff Josephine Chirichello filed a complaint in lieu of prerogative writ to review the correctness of the denial by the Board of Adjustment of the Borough of Monmouth Beach of her application for a variance to construct a house on an undersized lot. The Superior Court, Law Division, and the Appellate Division affirmed. However, one judge of the Appellate Division dissented and the plaintiff's appeal as of right, R. 2:2-1(a), has brought this matter before us.
Though the record is somewhat sparse, the facts adduced at the hearing before the board of adjustment are substantially undisputed. On October 18, 1957 Joseph Chirichello and his wife Josephine, the plaintiff, purchased a lot on Wesley Street in Monmouth Beach. The deed description, which is not by metes and bounds, designated the property by reference to lot 153 on a certain map of Columbus Park, dated October 1925. That lot is now also identified as lot 8 in Block 31K of the borough's tax map.
Lot 8 is located on the north side of Wesley Street. It has a frontage of 53.6 feet and a depth of 118.3 feet on the west and 137.7 feet on its east side. Adjoining lot 8 on the west is lot 9. Lot 9 is on the corner of Wesley Street and Spaulding Place. Its frontage is 53.6 feet, and its sidelines 98.9 feet and 118.3 feet. George West lives in a one-family home located on this tract. He purchased his home in 1951.
Charles Rose owns lot 7 which is adjacent to lot 8 on the east. Its frontage is 53.6 feet and its depth is 87.7 feet on one side and 107.1 feet on the other. Charles Rose purchased his home in 1969. He asserted that his house had been built 20 years before.
Immediately to the east of lot 7 is lot 6. A house also stands on this property which also has a frontage of 53.6 feet.
In December 1957 Mr. and Mrs. Chirichello purchased lots 10 and 11 in Block 31K. These lots front on Spaulding Place and do not face Wesley Street. The south side of lot 10 is adjacent to the rear of Mr. West's property and lot 8. Adjoining lot 10 on the north is lot 11. Both lots 10 and 11 are 100 feet deep. In February 1974 Mr. and Mrs. Chirichello sold lots 10 and 11 to their son Louis.
In 1975 Mrs. Josephine Chirichello (her husband having died) desired to construct a house on lot 8. At that time a Revised Zoning Ordinance, which became effective April 28, 1970, classified the area as A-1 residential. The A-1 zoning restrictions limited usage of the land to single-family homes and required a minimum lot acreage of 9000 square feet, minimum width and depth of 75 feet and 100 feet, respectively, a side yard limitation of 8 feet and a front setback of 25 feet. The plans for the plaintiff's proposed house met all the requirements of the zoning ordinance except that the frontage on Wesley Street was 53.6 feet and not 75 feet and the total area of the lot was 6400 square feet and not 9000 square feet.
The Revised Zoning Ordinance had superseded a Revised Building Zone Ordinance adopted in September 1953. Under
that ordinance the property in question had also been located in a residential zone. However, the minimum lot area was 7500 square feet, although the frontage requirement was the same, 75 feet. The 1953 ordinance indicated that it was a revision of "The Zoning Ordinance of Monmouth Beach, N.J." enacted September 9, 1930, presumably the initial zoning ordinance adopted by the municipality.
Mr. West testified that when he bought his home in 1951, the four separate lots (6, 7, 8 and 9) were in existence. He figured no one would ever want to build a house on lot 8 because it did not have a clear title. He offered the opinion that if Mrs. Chirichello were permitted to build her home there would be four houses within a 200-foot frontage thus creating a fire hazard and a crowded condition. In April 1974, about a year before the proceedings before the board of adjustment were held, Mr. West and Mr. Rose had offered to purchase lot 8 for $5000, but Mr. Chirichello had refused to sell because he thought the land was worth more.
The board of adjustment, after finding the facts substantially the same as recited above, concluded that as a result of construction of the proposed Chirichello house there would be four houses on Wesley Street between Spaulding Place and Bayonne Avenue. This would create a "crowding condition in the existing residential zone which would substantially impair the quality of the residential area, tend to diminish the value of the existing houses in the area, and contribute to creating an unnecessary fire hazard." The board also found that because lots 10, 11 and 8 were at one time in common ownership, thereby merging into one tract upon which a home could have been built, and because plaintiff had received a reasonable offer for lot 8, no exceptional and undue hardship existed. The board concluded the proposed construction could not be accomplished without detriment to other properties in the vicinity and that the variance could not be granted without substantial detriment
to the public good and to the intent and purpose of the zone plan.
The Law Division, relying upon Loechner v. Campoli, 49 N.J. 504 (1967), held that when lots 8, 10 and 11 came under common ownership, they became one lot. Therefore the hardship in which plaintiff found herself had been self-created when she sold lots 10 and 11. Furthermore, she had been offered $5000 for lot 8, which was a fair price. Lastly, the trial court held that the plaintiff had made no attempt to demonstrate compliance with the negative criteria of N.J.S.A. 40:55-39, now codified at N.J.S.A. 40:55D-70. Accordingly, it affirmed the board of adjustment's denial of the variance.
The Appellate Division, although noting that the evidence did not support the finding that the $5000 offer was a fair one, an observation with which we agree, affirmed substantially for the other reasons stated by the trial court.
N.J.S.A. 40:55-39(c) authorized a board of adjustment to grant variances where, by reason of some exceptional situation or condition of the property, application of the zoning ordinance would result in peculiar or exceptional practical difficulties to or exceptional and undue hardship upon the property owner. That section read as follows:
The board of adjustment shall have the power to:
c. Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under the act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship; provided, ...