Beirn v. Morris

• Decision Date: 08 March 1954
• Docket Number: No. A--97,A--97
• Citation: 14 N.J. 529,103 A.2d 361
• Parties: BEIRN et ux. v. MORRIS et al.
• Court: New Jersey Supreme Court

Page 529

14 N.J. 529

103 A.2d 361

BEIRN et ux. v. MORRIS et al.

No. A--97.

Supreme Court of New Jersey.

Argued Feb. 8, 1954.

Decided March 8, 1954.

Joseph J. Mutnik, Plainfield, for appellants.

John T. Keefe, New Brunswick, for respondents.

The opinion of the court was delivered by

HEHER, J.

In this proceeding in lieu of the prerogative writ of Certiorari, to review a resolution adopted January 22, 1953 by the defendant board of adjustment refusing the plaintiff landowners a variance under R.S. 1937, 40:55--39(c), as amended, N.J.S.A., from the terms of a local zoning regulation forbidding the particular use, there was judgment of affirmance, which also adjudged 'valid' the zoning regulation itself, 'in so far as it relates to the property of plaintiffs.'

The case is here on our own certification of the landowners' appeal to the Appellate Division.

At base, the grievance asserted is that the challenged local action was arbitrary and unreasonable and a 'practical confiscation' of plaintiffs' lands. It is said, in a word, that plaintiffs sustained the onus of proof of the 'extraordinary and exceptional situation or condition' of the particular plot that would entail 'peculiar and exceptional practical difficulties' or 'exceptional and undue hardship' to the landowners were the regulation to be strictly enforced, relievable without 'substantial detriment to the public good' or 'impairment' of the 'intent and purpose of the zone plan and zoning ordinance,' and so the standard of action laid down in the cited section 40:55--39(c) is met.

The locus is at the northeast corner of West Seventh and Walnut Streets, and is designated on the township tax map as Lot 43, in Block 45. Walnut Street intersects West Seventh Street at an angle of almost 45 , and all abutting lots, including plaintiffs', extend from Walnut Street at right angles, thus making for varying side lines. Plaintiffs' parcel has a diagonal frontage of 101.91 feet on the northerly side of Walnut Street; its northerly side has a depth of 275 feet, running at a right angle from West Seventh Street; its southerly side has a parallel death of 211.87 feet, and there is a uniform width of 80 feet throughout the latter death. There is no street parallel to Walnut Street. Plaintiffs acquired the lot by purchase on August 4, 1952, intending to erect thereon a cinder block garage, 20 feet high, for the housing of 12 buses employed in the performance of existing contracts for the transportation of children to the township's Arbor School and New Market School. But the lot was then, to plaintiffs' knowledge, and is now, situate in a Residence 'B' zone delineated by the ordinance, closed to such use. Plaintiffs acquired the land believing, after consultation with 'several of the neighbors,' that there would not be neighborhood objection to such use.

The ordinance establishes a minimum lot size of 50 ft. 100 ft.; plaintiffs' lot is 80 ft. 200 ft., or more; and a master plan is now in process of formulation by the local planning authority which will provide for the upgrading of the subject Arbor section as a residence area, by means, Inter alia, of a minimum lot size mandate of 75 ft. 100 ft. or 7,500 square feet for the individual lot, 'to avoid overcrowding conditions and difficulty with sanitary facilities,' and a revision of the zoning ordinance in keeping with the altered concepts of socio-economic needs and use policy.

We do not find the particular zoning regulation in the appendix. But we have the unchallenged statement in the landowners' brief that under the ordinance a 'B' Residence zone 'may be used for no other purposes than single-family detached dwellings, non-business clubs and lodges, educational and religious uses, excluding hospitals and sanitariums, except where authorized by the special exception of the Board of Adjustment, and for farms, nurseries or greenhouses.' And the brief submitted by the defendant local authority affirms without exception that in zones of this class the ordinance 'prohibits a garage, and the use of lots for garage purposes.'

These are the circumstances advanced in support of the basic contention that 'exceptional and undue hardship' would attend the strict application of the general regulation: Next door, on the northerly side, is the Arbor Fire House and Arbor Rescue Squad building; there is a 'combination' gasoline station and confectionery store at the northeast corner of Walnut and West Seventh Streets, and a 'combination' garage and gasoline station on the southeast corner of the intersection, in each instance a nonconforming use; there is a one-family dwelling on the southwest corner, 'fronting Walnut Street and facing north, away from the intersection'; the existing dwellings are 'staggered along Walnut Street in order to be parallel to the side of the lot (and consequently not parallel with the street),' and the 'result is that should plaintiffs erect a residence maintaining the same set back, they would be looking out of their dwelling at the middle or toward the rear of the fire house and, because of the peculiar angle of the intersection, facing the gas station on either corner across the way,' and 'any house not built in line with the peculiar set back and pattern of the street would not only stand out like a sore thumb but would unfavorably affect the looks of the neighborhood' this from the testimony of a real estate broker who is also chairman of the Board of Adjustment of Plainfield, a witness called by plaintiffs. Another of plaintiffs' witnesses, a real estate broker of wide experience in the Plainfield area, testified that the lot in question is not 'suitable or desirable for residential purposes.' And these were his reasons: The location of 'a rescue squad and fire house immediately next door to it, which buildings are utilized at any hour of the day or night'; 'Also the fact that there is a siren on top of the fire house, plus the fact that immediately across the street--practically regardless of how you sit, that is, regardless of how you put your house on this lot--you cannot help but see the Esso gasoline station and Tydol gasoline station and a small one story building servicing that Tydol station which appears to be somewhat of a store,' and 'In addition to that, a garage beyond the Esso station; all of which is certainly not conducive to residential building.' He drew support for this conclusion from the fact that 'the lot has been unused for a great many years.' He observed that while most of the area 'was built up in the middle '20s and the fire house was built roughly in the early '30s,' and 'there has been a lot of building since then,' there has been 'very little building right around that fire house for residential purposes.' He added that 'the highest and best use for this particular piece of ground is commercial, commercial of the automotive variety, either a new car agency or a repair garage or a combination of repair and a gasoline station because there is considerable traffic in that area,' but a 'storage garage such as is proposed here is probably the best that could be hoped for of that particular variety.'

These considerations are manifestly insufficient for the exertion of the statutory power to vary the terms of the general regulation. The landowners acquired the property fully cognizant of the use restrictions, avowedly to make a more profitable use of the lands than conformance to the use regulation would permit, if that could be accomplished--such as would serve their own private business interests at the time; and the profit motive is not an adequate ground for a variance. Brandon v. Montclair,124 N.J.L. 135, 11 A.2d 304 (Sup.Ct.1940), affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A.1940)...