Harrington Glen, Inc. v. Municipal Bd. of Adjustment of Borough of Leonia

• Decision Date: 03 June 1968
• Docket Number: No. A--69,A--69
• Citation: 52 N.J. 22,243 A.2d 233
• Parties: HARRINGTON GLEN, INC., a New Jersey corporation, et al., Plaintiffs-Appellants, v. The MUNICIPAL BOARD OF ADJUSTMENT OF the BOROUGH OF LEONIA, et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 22

52 N.J. 22

243 A.2d 233

HARRINGTON GLEN, INC., a New Jersey corporation, et al Plaintiffs-Appellants, v. The MUNICIPAL BOARD OF ADJUSTMENT OF the BOROUGH OF LEONIA et al., Defendants-Respondents.

No. A--69.

Supreme Court of New Jersey.

Argued Jan. 8 and 9, 1968.

Decided June 3, 1968.

Paul A. Wurtzel, Perth Amboy, for appellants (David S. Greenberg, Englewood, attorney).

Donald A. Sterling, Englewood, for respondents.

The opinion of the court was delivered by

FRANCIS, J.

This is a zoning variance case. The Law Division reversed the denial of the variance application by the Board of Adjustment. In turn the Appellate Division reversed the Law Division holding that on the record presented plaintiffs had not shown that the action of the Board was arbitrary or unreasonable. This Court granted certification. 49 N.J. 369, 230 A.2d 401 (1967).

The lot in question is located on the easterly side of Glenwood Avenue, Leonia, N.J. It has a frontage of 40 feet on Glenwood Avenue and a depth of 122 feet; the total area is 4880 square feet. The northern extremity of Glenwood Avenue dead-ends at the Englewood Golf Course. Plaintiffs' lot is within the block of Glenwood Avenue which terminates at the golf course. It is separated from the golf course by four taxmap lots with a frontage of 107 feet. The four lots are in a single ownership, and contain a one- family dwelling, its southerly side being very close to plaintiffs' northerly line.

Some time after Mr. and Mrs. Pou acquired their property in 1932, it was placed in the A--2 residential zone by the Borough zoning ordinance. The record inexplicably does not show when the designation was made I.e. whether in the original zoning ordinance, which apparently was adopted after 1932, or whether the allocation to the A--2 zone occurred in 1955 when the ordinance was revised. Whatever may be the chronology, it is undisputed that, when acquired, the Pou lot was not in the A--2 zone with its frontage or side-yard requirements. Moreover, there is no proof in the record to show the existence of either a zoning ordinance in 1932, or any front-foot or side-yard requirement for building lots at that time.

The A--2 zone is restricted to one-family dwellings. To qualify for building purposes, lots in the zone must have a minimum frontage of 80 feet, a minimum area of 8000 square feet, and the construction must have side yards totaling 18 feet, no one of which can be less than eight feet.

On June 11, 1965, Mr. and Mrs. Pou contracted to sell the lot in question to Harrington Glen, Inc. for $5,000. Completion of the transaction was conditioned upon obtaining a variance from the frontage and side-yard requirements of the A--2 zone so that Harrington could build a one-family home thereon. The request for a building permit having been refused by the Borough building inspector, Harrington appealed to the Board of Adjustment for a variance to permit the proposed home to be constructed on the Pou lot with its 40-foot frontage and 4880 square foot area, and, as the plans disclosed, with a seven-foot side yard on each side. The appeal was based upon N.J.S.A. 40:55--39(c) which authorized the Board of Adjustment to grant a variance

'Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, * * * 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 * * *.'

The Board conducted a hearing to consider the matter.

At the hearing it appeared that the existing homes on Glenwood Avenue in the block in which the Pou lot is located are in the low to mid-$30,000 price range. On the westerly side of Glenwood Avenue within this block the property is in the A--3 one-family residence zone. The front-line requirement for that zone is 50 feet. Two houses have been built on that side of the street, none, however, with less than 80-foot frontage. (Of course, any further construction may be on 50-foot lots.) The same is true of those on the easterly side in the A--2 zone; the one house on that side has the 107 foot frontage. The first intersecting street to the south on Glenwood Avenue is Hillside Avenue. Property on Hillside Avenue to the west of Glenwood Avenue is in the A--3 50-foot frontage zone. A number of the homes on both sides of Hillside Avenue have 50-foot frontages or less. Two lots with homes on them have 25-foot frontages. They are just a short distance west of Glenwood Avenue. To the east of Glenwood Avenue on the south side of Hillside Avenue, the properties are also in the A--3 50-foot frontage zone. The testimony showed that some of these lots with homes on them within the first block to the east of Glenwood Avenue have frontages of 40 feet.

The general locality is made up of one-family residences on various size lots. It does not appear that there are any sizeable estates or large homes in the immediate area. As noted above, the portion of Glenwood Avenue involved here ends at the golf course. No property adjacent to the Pou lot on the north is available for purchase; to the south there is a small lot, approximately 40 60 , which if it could be acquired would add about 2400 square feet to plaintiffs' property. Even if this additional piece could be purchased, and there is no proof that it is in the market for sale, the resulting oddly shaped lot would have a total area of 7280 square feet, still under the required 8000 square feet.

The real estate broker who described the section of the Borough involved, the size of the lots and the price range of homes thereon, testified also that he was familiar with the type home to be constructed on the Pou lot, and that he had been told the expected sales price upon completion would be approximately $30,900. No objection was offered to this statement of the price, and when plaintiffs' attorney began to pursue the matter further by offering the plans, the parties as well as the Board indicated the statement would be accepted. In the resolution denying the variance, however, the Board said the evidence 'did not satisfactorily indicate that the proposed building would be of the same or similar valuation as those of surrounding property owners.' In view of the apparent agreement at the hearing, the conclusion was unfair. Since a remand is being ordered, further and more precise proof of the value of the proposed structure may be offered, unless the parties reach an agreement on the matter.

At the conclusion of the real estate broker's testimony he gave the opinion that the variance would not be a detriment to the neighborhood or the existing zoning plan. He said also that the Pou property was useless unless a one-family house could be built on it. There was no expert proof to the contrary. Some of the neighboring owners voiced objections to the grant of a variance, saying it would adversely affect their property and the character of the area.

The Board denied the variance by a resolution which falls far short of legal sufficiency. It contains no specific factual findings with respect to the criteria set out in N.J.S.A. 40:55--39(c), the basis for testing a property owner's right to such relief. It says only that no satisfactory evidence was introduced showing sufficient hardship to justify grant of a side-yard variance or 'a variance to construct a dwelling on the property in question.' It concludes be declaring that the variance 'could not be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and ordinance.' Denial of a variance on a summary finding couched in the conclusionary language of the statute is not adequate. There must be a statement of the specific findings of fact on which the Board reached the conclusion that the statutory criteria for a variance were not satisfied. Unless such findings are recited, a reviewing court cannot determine fairly whether the Board acted properly and within the limits of its authority in refusing a variance. Griffin Const. Corp. v. Board of Adjust. of Tp. of Teaneck, 85 N.J.Super. 472, 475, 205 A.2d 313 (App.Div.1964); Peoples Trust Co. of Bergen County v. Board of Adjust. of Borough of Hasbrouck Heights, 60 N.J.Super. 569, 160 A.2d 63 (App.Div.1959); Tullo v. Millburn Twp., 54 N.J.Super. 483, 149 A.2d 620 (App.Div.1959). Under the circumstances we find it necessary to remand the matter to the Board of Adjustment for a review of the record, a reconsideration of the evidence, and if denial of the variance is reaffirmed, for a full and complete statement of the factual findings on which the denial is based. Such findings should have a clear N.J.S.A. 40:55--39(c) orientation. They should be made in the light of the affirmative and negative criteria specified both in subsection (c) and in the last paragraph of section 39. Particular consideration must be given to the factor of hardship to be suffered by the property owner. In this connection reference should be made to another matter. As we indicated in Wilson v. Borough of Mountainside, 42 N.J. 426, 452--453, 201 A.2d 540 (1964), when neither the owner of the lot at the time of adoption of the zoning ordinance which made the lot undersized, nor a subsequent owner, did anything to create the condition (I.e., the undersized lot) for which the variance is sought, a right to relief possessed by the original owner passes to the successor in title. Such right is not lost simply because the succeeding owner bought or contracted to buy with knowledge of the lot-size restriction. See 2 Rathkopf, Law of Zoning & Planning, c. 48, p. 48--20 (3d ed. 1966).

There is a stern necessity in a case like this one for thorough evaluation of facts and crystal clear findings with respect to the...