# Chirichello v. ZONING BOARD, BOROUGH OF MONMOUTH BEACH

> Supreme Court of New Jersey · January 22, 1979 · 78 N.J. 544

URL: https://www.frixlaw.com/law-library/cases/9730765

## Case

- **Full name:** Josephine Chirichello, Plaintiff-Appellant, v. Zoning Board of Adjustment of Borough of Monmouth Beach, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** January 22, 1979
- **Citations:** 78 N.J. 544; 397 A.2d 646; 1979 N.J. LEXIS 1166
- **Precedential status:** Published
- **Opinion:** Concurrence by Pashman
- **Judges:** Schreiber
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730765

## Opinion text

*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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730765. Public record. Not legal advice.