On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
J. H. Coleman and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
Plaintiffs appeal from a Law Division decision affirming the grant of certain variances to property adjoining theirs and the denial of plaintiffs' application to condition the variances upon plaintiffs' offer to purchase the property in question at its fair market value. We affirm in part and reverse and remand in part.
In 1951 Henry M. Weeks subdivided a parcel of land owned by him into three lots. The original parcel had 228.52 feet of frontage on Trenton-Pennington Road. A permanent easement was created running along the north side of the property being 28.50 feet in width and running along the north side of the first two newly created lots and terminating at the third lot. The newly created front lot, now Lot 23 in Block 68, has frontage on Trenton-Pennington Road of 200.02 feet and a depth of approximately 230.62 feet, with an area of 1.270 acres plus or minus. The original three-story brick building with a two-car garage on the north side remains on that lot. The garage intrudes 17.50 feet into the easement for a distance of approximately 42 feet.
Immediately behind Lot 23 is a newly created flag lot, now Lot 27 in Block 68, which measures approximately 100 feet by 200 feet with an area of 20,000 square feet and adjoins the easement on its north side. This lot is presently owned by plaintiffs who reside in what was formerly a carriage house. To the rear of this property is the lot in question upon which the variances were granted. This lot is known as Lot 5 in Block 68 and measures 100 feet by 228.50 feet, thus having an area of 22,850 square feet.*fn1 At the time of the subdivision, the zoning ordinance required a minimum lot area of 20,000 square feet.
Some time thereafter this requirement was increased to 40,000 square feet.
At the time of the application under review, Lot 23 was owned by the Dallrymples. Lot 27, being approximately 230 feet from the road with the north side facing on the easement, is owned by plaintiffs. The second flag lot, Lot 5 in Block 68, was owned by Mrs. Weeks.
For some time Mrs. Weeks, through her son David F. Weeks, and plaintiffs had discussed plaintiffs' desire to purchase Lot 5. Mrs. Weeks made it clear to her son that plaintiffs were to have first refusal on the lot. Accordingly, on April 23, 1986 David Weeks notified plaintiffs that he had been approached by a real estate agent who presented an offer on behalf of his daughter and her husband, defendants James T. and M. Christie Prater (Praters), to purchase the lot for $15,000. The offer was contingent upon successful testing for water and septic requirements and obtaining the necessary variances. Weeks gave plaintiffs until May 5 to make an offer, after which time he would assume they did not wish to make an offer. In his letter Mr. Weeks said:
If the land does not pass the necessary tests, or if the buyers are unable to get the necessary permits, then only the abutters will be interested in the lot. Should this happen, I will extend to you again the first refusal privilege.
Plaintiffs concede they did not respond by May 5, but claim that, at a meeting between Weeks and plaintiff prior to Weeks entering into the contract with the Praters, plaintiffs offered to meet the $15,000 offer of the Praters. Although not conditioned on obtaining variances, the offer was conditioned upon an acceptable percolation test. Plaintiffs asked Weeks to obtain the necessary tests although they agreed to pay for them. Since Weeks did not want to go to the trouble of arranging for the tests and considered the Praters' offer the "simplest and clearest" deal, he entered into a contract with the Praters on May 29, 1986 for the sale of the property for a purchase price of $15,000, conditioned upon acceptable percolation tests and necessary zoning and building approvals.
VARIANCES SOUGHT BY THE PRATERS
Thereafter on November 19, 1986 the Praters filed an application for the necessary variances having obtained from the board of health in October 1986 a lot-size variance for construction of the septic system. After an initial hearing on December 2, 1986 when jurisdictional matters were resolved without any testimony being taken, the matter was heard in January and February 1987.
The property is located in the R-100 zone. The minimum requirements of that zone as contrasted with the proposal of the Praters are as follows:
Lot Area 40,000 sq. ft. 22,850 sq. ft.
Lot Width at Street 150 none
Lot Coverage 15% approx. 5%
Ultimately the board of adjustment granted three variances, one for lot area, one for lot width and the other for lot frontage. Although the proposed side yards would only measure 35 feet, the ordinance provided that single-family detached homes may be located any distance from the side lot providing the minimum distance between homes is 40 feet. This proposal met that requirement. The resolution of approval adopted by the board contained findings of fact and conclusions and was passed by a vote of five to one.*fn2
Decisions of the board of adjustment are presumed valid and should not be set aside unless arbitrary, capricious or unreasonable. Kessler v. Bowker, 174 N.J. Super. 478, 486 (App.Div.1979), certif. den. 85 N.J. 99 (1980); see also Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 285 (1965). To receive a variance under N.J.S.A. 40:55D-70(c), applicants must satisfy two criteria: (1) that they will suffer exceptional or undue hardship if the variance is not granted -- the so-called positive criteria, and (2) that the variance will not result in a substantial detriment to the public good or the zoning plan -- the so-called negative criteria. Nash v. Bd. of Adjust. of Morris Tp., 96 N.J. 97, 102 (1984).
The board granted the Praters' application for variances pursuant to N.J.S.A. 40:55D-70(c)(1), "peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developers of the property" and not the so-called "flexible c" variance under N.J.S.A. 40:55D-70(c)(2). See Kaufmann v. Planning Bd for Warren Tp., 110 N.J. 551 (1988). In granting the variances, the board of adjustment said:
1. The requested bulk variances are justified under 40:55D-70(c)(1) because exceptional hardship has been shown in that no effective use could be made of this particular isolated "flag lot" if the variances were not ...