Garden View Homes Inc. v. Bd. Of Adjustment Of City Of Passaic

• Decision Date: 18 March 1948
• Docket Number: No. 273.,273.
• Citation: 137 N.J.L. 44,57 A.2d 677
• Parties: GARDEN VIEW HOMES, Inc. v. BOARD OF ADJUSTMENT OF CITY OF PASSAIC et al.
• Court: New Jersey Supreme Court

137 N.J.L. 44

57 A.2d 677

GARDEN VIEW HOMES, Inc.

v.BOARD OF ADJUSTMENT OF CITY OF PASSAIC et al.

No. 273.

Supreme Court of New Jersey.

March 18, 1948.

Applications by Garden View Homes, Incorporated, for writs of certiorari and mandamus to review an order of the Board of Adjustment of the City of Passaic, denying prosecutor's application for a variance from a zoning ordinance requirement after denial of a building permit by Frank I. Ackerman, city building inspector.

Applications denied.

January term, 1948, before DONGES, COLIE and EASTWOOD, JJ.

Heller & Laiks, of Passaic, for prosecutor.

Thomas E. Duffy, of Passaic, for respondents.

COLIE, Justice.

Prosecutor holds a contract to purchase land at the corner of Pennington and Lafayette Avenues in the City of Passaic. The contracting parties have agreed that the contract to purchase becomes binding if the land is available for the erection of two one family dwellings thereon. The zoning ordinance requires that the proposed houses shall have a setback of 40 feet but the plans submitted to the Building Inspector called for a 25 foot set-back. Under these circumstances, the denial of a building permit was proper. Thereafter, prosecutor applied to the Board of Adjustment for a variance to permit the buildings to be erected on a 25 foot set-back. The Board of Adjustment denied the application. The prosecutor's argument on this application is that he can use the land to better advantage if he erects two buildings thereon rather than one and that it is unreasonable and arbitrary to deny him a variance from the zoning ordinance to accomplish that end. The mere fact that the land will be more profitable to the prosecutor if the variance is granted is not a sufficient reason for the granting of it. Brandon v. Board of Com'rs of Town of Montclair, 124 N.J.L. 135, 11 A.2d 304 affirmed 125 N.J.L. 367, 15 A.2d 598.

Prosecutor failed to establish a case of unnecessary hardship and that being so, the Board of Adjustment did not act capriciously or arbitrarily. Scaduto v. Town of Bloomfield, 127 N.J.L. 1, 20 A.2d 649.

The applications are denied with costs.