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Commons v. Westwood Zoning Board of Adjustment

January 18, 1980


On certification to Superior Court, Appellate Division.

Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.


The opinion of the court was delivered by SCHREIBER, J.

We are again called upon to examine the proceedings before and findings of a board of adjustment which denied a zoning variance for construction of a single-family residence on an undersized lot. See N.J.S.A. 40:55-39(c). Plaintiffs, Gordon L. Commons, Helen T. Commons and Leo Weingarten, filed a complaint to review the denial of the variance by the Borough of Westwood Zoning Board of Adjustment. The superior Court, Law Division, and the Appellate Division affirmed the board's action. We granted plaintiffs' petition for certification. 79 N.J. 482 (1979).

The facts developed at the hearings before the Board of Adjustment were substantially undisputed. The property in question is a vacant lot, designated as Lot 20 in Block 208 on the tax map of the Borough of Westwood. Located in an established residential area consisting of one and two-family dwellings, this lot is the only undeveloped property in the neighborhood. Plaintiffs Gordon and Helen Commons are the present owners. They and their predecessors in title have owned this plot since 1927. Plaintiff Weingarten, a builder, contracted to purchase the property on the condition that he could construct a one-family residence on the lot.

A variance from the borough's zoning ordinance was necessary for two reasons. The land was located in a District B residential zone requiring a minimum frontage of 75 feet and a minimum area of 7500 square feet. The lot, however, has a frontage on Brickell Avenue of only 30 feet and a total area of 5190 square feet.

When adopted in 1933, the borough's zoning ordinance contained no minimum frontage or area provisions. However, a 1947 amendment required that one-family houses be located on lots with a frontage of at least 75 feet and an area of no less than 7500 square feet. At the time the amendment was adopted there were approximately 32 homes in the immediate area. Only seven satisfied the minimum frontage requirement. The nonconforming lots had frontages varying from 40 to 74 feet.

This situation has remained virtually unchanged, only two homes having been constructed thereafter, one in 1948 with a frontage of 70 feet and one in 1970 with a frontage of 113 feet.

Weingarten proposed to construct a single-family, one and one-half story "raised ranch" with four bedrooms, a living room, dining room, kitchen, two baths and a one-car garage. Weingarten had no architectural design of the proposed house, but submitted a plan for a larger home which he claimed could be scaled down. The proposed home would have an approximate width of 19 feet, 18 inches and a depth of 48 feet. It would be centered on the 30-foot lot so as to provide five-foot side yards, the minimum required by the zoning ordinance. The proposed setbanck would also conform with the zoning plan. Weingarten further explained that the proposed residence would be roughly 18 feet from the house belonging to Robert Dineen located on adjacent land to the north, and 48 feet from the two-family residence owned by David Butler on the property to the south. The Dineen property has a 50-foot frontage, and the Butler frontage measures 74.5 feet.

The proposed home would be offered for sale for about $55,000. That price compared favorably with the market values of other nearby homes which a local realtor, Thomas Reno, estimated at between $45,000 and $60,000. Reno testified that the proposed home would not impair the borough's zoning plan because the house would be new, its value would compare favorably with other homes, its setback from the street would be at least as great as others, and the distances between the adjoining houses on each side would be substantial.

In 1974, plaintiff Gordon Commons had offered to sell the lot to Dineen for $7,500. Negotiations terminated, however, after Dineen countered with a $1,600 proposal, the assessed value of the property. When Weingarten contracted to purchase the land, he sought, albeit unsuccessfully, to purchase from Butler a 10-foot strip, adjacent to the south side of the lot.

Many neighbors opposed the application for a variance. Butler testified that a house on a 30-foot lot would be aesthetically displeasing, would differ in appearance by having a garage in front rather than alongside the dwelling, and would impair property values in the neighborhood. Another property owner, whose home was across the street, expressed her concern about privacy, reasoning that the occupants of a four-bedroom residence on a small lot would cause a spillover effect in terms of noise and trespassing.

The board of adjustment denied the variance, finding "that the applicant failed to demonstrate any evidence to establish hardship" and "that the granting of the variance would substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance of the Borough of Westwood." The trial court, after reviewing the testimony, affirmed because it felt that to permit the variance "would be detrimental to the entire area wherein the property in question is situated." The ...

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