Commons v. Westwood Zoning Board of Adjustment
81 N.J. 597, 410 A.2d 1138 (1980)
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Rule of Law:
When a zoning ordinance renders a pre-existing, isolated, undersized lot unusable for any purpose, 'undue hardship' exists, and a variance should be granted if the owner has made reasonable but unsuccessful efforts to bring the property into conformity and the variance does not substantially impair the public good or the zoning plan.
Facts:
- Plaintiffs Gordon and Helen Commons and their predecessors in title have owned a vacant lot in Westwood since 1927.
- The lot has a 30-foot frontage and a total area of 5,190 square feet.
- When the property was acquired, the borough had no zoning ordinance specifying minimum lot sizes.
- In 1947, the borough amended its zoning ordinance to require a minimum frontage of 75 feet and a minimum area of 7,500 square feet for single-family homes, rendering the plaintiffs' lot nonconforming.
- At the time of the 1947 amendment, most homes in the immediate area (25 of 32) also became nonconforming.
- Plaintiff Gordon Commons offered to sell the lot to an adjacent neighbor, Robert Dineen, for $7,500, but Dineen countered with an offer of $1,600.
- Plaintiff Leo Weingarten, a builder, contracted to purchase the lot from the Commons, contingent on obtaining a variance to build a home.
- Weingarten unsuccessfully attempted to purchase a 10-foot strip of land from another adjacent neighbor, David Butler, to increase the lot's frontage.
Procedural Posture:
- Plaintiffs applied to the Borough of Westwood Zoning Board of Adjustment for a variance to construct a single-family home.
- The Zoning Board of Adjustment denied the variance application.
- Plaintiffs filed a complaint in the Superior Court, Law Division, seeking review of the board's decision.
- The Superior Court, Law Division, affirmed the board's denial of the variance.
- Plaintiffs appealed to the Superior Court, Appellate Division.
- The Appellate Division affirmed the trial court's judgment in a per curiam opinion.
- The Supreme Court of New Jersey granted the plaintiffs' petition for certification.
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Issue:
Does the denial of a zoning variance to build a single-family home on an undersized lot create an 'undue hardship' for the owner when the nonconformity was created by a subsequent zoning ordinance and the property would otherwise be rendered unusable?
Opinions:
Majority - Schreiber, J.
Yes, the denial of a variance under these circumstances can create an 'undue hardship.' When a zoning regulation renders a property unusable for any purpose, and the owner did not create the nonconforming condition, a board of adjustment must grant a variance if the negative criteria are met. The court reasoned that the board's finding of 'no evidence to establish hardship' was unsupported by the record. Undue hardship is established where a denial would zone the property into inutility, the nonconformity was created by the ordinance itself, and the owner has made good-faith efforts to purchase adjacent land or sell the lot to a neighbor at a fair price. The court also found the board's conclusion regarding the negative criteria—that the variance would 'substantially impair' the zoning plan—was a mere conclusory statement without specific factual findings. The board failed to explain how the proposed home, which met use, setback, and side-yard requirements, and was comparable in value to others in the area, would actually harm the character of the neighborhood.
Analysis:
This case significantly clarifies the 'undue hardship' standard for 'c' variances in New Jersey, particularly for pre-existing undersized lots. It establishes that a hardship is not self-imposed when the nonconformity is created by the subsequent passage of a restrictive ordinance. The decision places a new emphasis on the owner's good-faith efforts to mitigate the hardship by attempting to buy adjacent land or sell to neighbors, making the reasonableness of offers a key factual inquiry. Furthermore, the ruling heightens the requirement for zoning boards to produce specific, detailed findings of fact to justify a variance denial, preventing them from relying on conclusory statements about harm to the zoning plan.
