This matter is before the court on a writ of certiorari allowed, prior to September 15, 1948, to review an order of the Board of Adjustment of Teaneck denying the appeal of Wyndham Construction Co. for a variance from the zoning ordinance.
Plaintiff erected a group of apartment houses at the corner of Sterling Place and Red Road in Teaneck. Subsequently he planned to have one of the apartment houses contain seven apartments. The building permit for this was refused as it did not conform toSection 1-b-3 of the zoning ordinance which provided: "That no building in a row or group shall exceed three stories or 45 feet in height or contain dwellings for more than six families." An appeal to the Board of Adjustment was denied.
Plaintiff first attacks the ordinance as prohibiting it from making lawful use of its property. This point is not available on this appeal since it is not comprehended within the reasons filed. Next it is said that the Board of Adjustment had no jurisdiction to deny a variance. This argument is wholly without merit as a reading of R.S. 40:55-39 clearly indicates. Lastly it is said that the action complained of was arbitrary and capricious. We find as a fact that no unnecessary hardship resulted from a literal enforcement of the ordinance.
The order under review is affirmed with costs. *Page 199