in its discretion, board may consider propriety of variance conditioned on selling property to adjoining property owner
How later courts described this case
- in its discretion, board may consider propriety of variance conditioned on selling property to adjoining property owner
- saleability of land is only another yardstick by which undue hardship is to be measured
- merger of back to back lots fronting on different streets if a house is built overlapping both lots
- “[i]t would be consonant with the interests of all parties to deny a variance conditioned on the purchase of the land by adjoining owners at a fair price”
Written by the judges who cited it.
The opinion
*562 Pashman, J.,
concurring. I concur fully in the opinion of Justice Schreiber speaking for a unanimous Court. I write separately to amplify that portion of our holding dealing with the relationship between an offer to purchase plaintiff’s land and the statutory criterion of “undue hardship.”
As the majority points out, one factor that may be considered on remand in determining whether denial of a variance will cause plaintiff “undue hardship” is whether third persons have offered to purchase the subject premises at a “fair price.” See ante at 555-556. See, e. g., Gougeon v. Stone Harbor Bd. of Adjustment, 54 N. J. 138, 148-149 (1969) (Gougeon II); Gougeon v. Stone Harbor Bd. of Adjustment, 52 N. J. 212, 223-224 (1968) ,(Gougeon I). Caselaw demonstrates unmistakably that the “fairness” of any such offer must be gauged in relation to the fair market value of the premises assuming that the variance has in fact been granted. See Gougeon I, supra, 52 N. J. at 224. In Gougeon, plantiff’s lot did not satisfy the minimum area requirements imposed by a local zoning ordinance for constructing a dwelling on the premises. Justice Erancis, writing for a unanimous Court, discussed the significance of an offer to purchase the premises as follows:
Of course, no offer to purchase should play any part in the consideration of the case unless it represents at least the fair market value of a 30' x 110' lot on which a home could be built * * *.
[Gougeon I, supra, 52 N. J. at 224 (emphasis supplied)]
It is thus clear that on remand, the fairness of any offer made for plaintiff’s land must be judged in terms of the fair market value of her lot assuming a variance has in fact been secured.
Indeed, any other conclusion would be manifestly unjust. Were fair market value determined without assuming the existence of a variance, a plaintiff would rarely, if ever, meet the statutory criterion of “undue hardship.” That is, if no use whatsoever can be made of a particular parcel of *563 property, its “fair market value” would approach zero. Hence, any offer to purchase would effectively negate the existence of “undue hardship.” Such a state of affairs would allow adjacent property owners to take advantage of a particular plaintiff’s plight inasmuch as only they would be able to put the premises to productive use by merging it with their lands.
Given this additional guideline, I join fully in the majority’s opinion.
Justice Schkeibek joins in this opinion.
For reversal and remandment — Chief Justice Hughes, and Justices Mountain, Sullivan, Pashman, Clieeokd, Schkeibek and Handler — 7.
For affirmance — -None.