Gougeon v. Board of Adjustment of Borough of Stone Harbor

• Decision Date: 28 June 1968
• Docket Number: No. A--135,A--135
• Parties: John H. GOUGEON, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the BOROUGH OF STONE HARBOR, Borough Council of the Borough of Stone Harbor, Defendants-Respondents, and Joseph F. Greene and Margaret E. Greene, his wife, and Dillwyn T. Wattis and Bernice Wattis, his wife, Intervenors-Appellants.
• Court: New Jersey Supreme Court

Page 212

52 N.J. 212

245 A.2d 7

John H. GOUGEON, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the BOROUGH OF STONE HARBOR, Borough Council of the Borough of Stone Harbor Defendants-Respondents and Joseph F. Greene and Margaret E. Greene, his wife, and Dillwyn T. Wattis and Bernice Wattis, his wife Intervenors-Appellants.

No. A--135.

Supreme Court of New Jersey.

Argued May 20, 1968.

Decided June 28, 1968.

Joseph F. Greene, Jr., Camden, for intervenors-appellants (Curry, Purnell & Greene, Camden, attorneys).

Joseph P. Greco, Woodbridge, for plaintiff-respondent.

John W. Gilbert, Ocean City, for defendants-respondents.

The opinion of the Court was delivered by

FRANCIS, J.

The issue here is whether plaintiff Gougeon is entitled to a variance or a special exception from the lot-area requirement and the side yard restrictions of the zoning ordinance of the Borough of Stone Harbor. The relief sought was opposed particularly by the intervenors Joseph F. and Margaret E. Greene, husband and wife, and Dillwyn T. and Bernice Wattis, also husband and wife. The Greenes own the property adjoining plaintiff's lot on the east. At the outset of the proceedings the Wattises owned the property adjoining plaintiff's lot on the west. The Wattises' property, an undeveloped lot, has since been sold and Mr. and Mrs. Wattis are not longer in the case. Denial of the application by the Board of Adjustment was reversed by the Law Division of the Superior Court, and the reversal was affirmed by the Appellate Division in an unreported opinion. We granted certification. 51 N.J. 184, 238 A.2d 470 (1968).

Plaintiff is the owner of an undeveloped 30 110 lot known as 415 Berkley Road, Stone Harbor. It is bounded by Berkley Road on the north and by the Stone Harbor Basin on the south. The record indicates that in 1921, when a private company was developing the Borough, lots of 30 feet frontage were the type commonly sold in this area. The lot was acquired in 1936 by Gougeon's father. In 1946 the father conveyed it to plaintiff and his two brothers. By deed dated April 2, 1958 the two brothers transferred their interest to plaintiff.

In December 1947 the Borough enacted a zoning ordinance. It placed the lot in question in the Residential A District. The requirements of the district are that no building 'shall be erected on a lot of less than 5000 square feet.' No frontage requirement was included. Thus a lot 30 167 would be a conforming lot. It was provided also that not more than 25% Of the lot area could be occupied by a building; further, a 10-feet front yard, a minimum 25-foot rear yard and side yards each of a minimum width of 10 feet were required. No building, except a garage or accessory structure, was authorized which would be less in area than 900 square feet, measured at ground level.

The anomalous character of this portion of the ordinance is apparent at once. A 30 170 plot would contain 5100 square feet and so would be an authorized building lot. Yet if 10-foot side yards are required, the building would not exceed 10 feet in width. In order to meet the area requirement of 900 square feet, the building would have to be 10 90 --an impossible prospect. On its face the practical effect of the section is to render 30 lots inutile for residence purposes.

Obviously, when adoption the zoning ordinance the governing body recognized that there were many 30 lots in the Borough, some with homes already built upon them and some undeveloped. The record is not clear as to the number of such lots in plaintiff's area on which homes have been constructed. The statements vary: 17 or 18 out of 60 lots in the area; 21 out of 60; 30 out of 60; about 30 homes on such lots within 300 yards or one-quarter of a mile of plaintiff's lot; six out of 12 homes within 200 feet of plaintiff's property are on 30 110 lots. The matter should not have been left in so ambiguous a state. Precise proof is readily accessible. In fact there is no reason why the parties could not have agreed upon the facts.

In order to provide an avenue of relief for the undeveloped 30 foot lots, an exception was authorized in section 9(c) of the ordinance. It appears to be an amendment, but no one mentions it as such, nor does the date of adoption appear. It says:

'Where a lot containing less square footage than required for the district in which it is located, was purchased prior to the effective date of this ordinance, to which this ordinance is an amendment, the then and now owner thereof may erect upon such lot a building with side yards of lesser width than required for the aforementioned district but in no case less than 5 feet for each side yard and 6 feet from the front property line, subject to the approval of the Board of Adjustment as hereinafter created.'

The evidence reveals that two exceptions or variances have been granted under this section since its adoption. They were granted to owners of undersized lots.

Early in 1965 plaintiff decided to build a home on his 30 110 plot. According to the plans submitted to the Borough, it is to be a year-round insulated house, as contrasted with most of the houses in the area which are summer residences. Gougeon and his wife intend to live there permanently upon his retirement. His building is to be a two-story frame structure with a concrete and masonry foundation. It will contain three bedrooms, two bathrooms and a powder room, a living room, den, kitchen and utility room. Dimensions of the building are 20 38 , an area of 760 square feet of 23% Or the 3300 square foot lot. A permit to build was denied by the Building Inspector because the lot was undersized and the 10-foot side yard requirements of the ordinance could not be met.

Plaintiff thereupon applied to the Board of Adjustment for a variance. There is much controversy in the record as to whether the application was for a special exception under section 9(c) of the ordinance (see N.J.S.A. 40:55--39(b)), or a variance as authorized by N.J.S.A. 40:55--39(c) of the zoning act, or under both. The controversy produced a limited approach to the problem by the parties and the Board, and resulted in an improper curtailment of evidence on the rehearing before the Board. In our judgment the application should have been treated as if made both under section 9(c) of the ordinance and N.J.S.A. 40:55--39(c).

As quoted above, under section 9(c) of the ordinance, when an undersized lot is involved, the Board in its discretion may grant permission to the owner to erect a home thereon with minimum side yards of five feet and front set back of six feet. Preliminarily, it should be noted that Gougeon qualifies as an applicant under the section either as a purchaser within its connotation or as an owner who succeeded to the rights of such a purchaser. Harrington Glen, Inc. v. Board of Adjust., Leonia, 52 N.J. 22, 243 A.2d 233 (1968); Wilson v. Borough of Mountainside, 42 N.J. 426, 452, 201 A.2d 540 (1964); Griffin Const. Corp. v. Board of Adjust., Teaneck, 85 N.J.Super. 472, 476--477, 205 A.2d 313 (App.Div.1964), certif. denied, 44 N.J. 408, 209 A.2d 143 (1965); Graves v. Bloomfield Planning Bd., 97 N.J.Super. 306, 315, 235 A.2d 51 (Law Div.1967). See also Stabel v. Gertel, 111 N.J.L. 296, 168 A. 645 (E. & A. 1933). But the discretion of the Board to grant an exception is not an unbridled one. Its exercise is confined by the negative criteria set forth in N.J.S.A. 40:55--39: 'No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'

Verona, Inc. v. Mayor & Council of West Caldwell, 49 N.J. 274, 283, 229 A.2d 651 (1967); Wilson v. Borough of Mountainside, supra, 42 N.J. at p. 447, 201 A.2d 540; Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 411, 169 A.2d 814 (1961); Tullo v. Millburn Twp., 54 N.J.Super. 483, 149 A.2d 620 (App.Div.1959). The variance contemplated by N.J.S.A. 40:55--39(c), also subject to the cited negative criteria, may be granted

'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 * * *.'

In rejecting the application for a variance or special exception to build on plaintiff's 3300 square foot lot, the Board gave as reasons

'1. Aesthetic beauty and intent of the Zoning Ordinance would be impaired.

2. The neighboring building owned by Mr. Greene would be only 9.14 feet from proposed building.

3. Fire and safety hazard.

4. Construction on this lot would definitely be detrimental, since the Ordinance was adopted to prevent overcrowding.'

These statements, except for (2), are conclusionary in character and inadequate. Moreover, they are not sufficiently related to the negative criteria quoted above to furnish a true indication that such criteria were given consideration. Supporting and explanatory facts and factual findings for the conclusions must be set forth. Unless such facts and findings are recited, a reviewing court cannot determine fairly whether the Board acted properly and within the limits of its authority. Harrington Glen, Inc. v. Board of Adjust., Leonia, supra. On the remand to be ordered, whatever its result, we assume that the facts supporting the conclusions will be fully and completely stated.

At the first hearing before the Board no stenographic record was made. The appendix contains a sketchy outline of the proceedings and the short letter of the Board to Gougeon denying his application. The reasons given were that the lot has an area less...