concurring.
Prior to this case, the conditional variance doctrine recognized in Gougeon v. Board of Adjustment of Stone Harbor, 52 N.J. 212 (1968) (Gougeon I), had not been applied to improved property. Here, both the Law Division and Appellate Division determined that the variances granted by the Cherry Hill Planning Board, allowing an existing structure to be used as an office building, should be invalidated because an abutting owner submitted an unconditional offer to purchase the property for a “fair and reasonable” price. I concur with the majority opinion’s holding that the offer did not compel the invalidation of the variances. I write separately because the majority opinion leaves unresolved the question whether evidence of an abutting owner’s offer to purchase the property was admissible in the proceedings before the Planning Board. The lower courts held that such evidence was not only relevant but that it was determinative of the variance application. In my view, the Planning Board’s consideration of the abutting owner’s offer was a misapplication of the conditional variance doctrine that has heretofore been restricted to cases in which the property was vacant, undersized, and unable to be used at all without a variance.
I
The first case suggesting that an unconditional offer to purchase a vacant, undersized lot could defeat an application for a “e”-type variance was Harrington Glen, Inc. v. Municipal Bd. of Adjustment of Leonia, 52 N.J. 22 (1968). The property in that case was a 40' X 122' lot in the Borough’s A-2 zone that required a minimum of 80 foot frontage, 8,000 square feet in area, and an aggregate sideyard of 18 feet. The owners agreed to sell the lot to the applicant, conditioned on variances from the frontage, area, and sideyard requirements. The Board of Adjustment denied the variance, and its action was reversed by the Law Division and reinstated by the Appellate *489Division. This Court, observing that the resolution of denial included no specific factual findings as to the statutory criteria, remanded the matter to the local board for reconsideration. The Court’s opinion referred to decisions holding that
a municipality cannot constitutionally restrict the use of an owner’s land in such manner as to deprive him of all practical use of it. They hold that deprivation of that nature is confiscation, and if the governing body deems such restriction necessary to serve the public interest or the general welfare an obligation to compensate the owner for the loss suffered must be accepted. [Id. at 32-33.]
The Court cautioned the Board that “if it finds plaintiffs are not entitled to relief, the ordinance will have zoned their property into idleness.” Id. at 29. We noted that on remand the Board could consider whether adjacent property could be acquired by the applicant to reduce the extent of nonconformity. Id. at 30. Finally, the Court raised the possibility that a fair offer to buy the property could be pertinent to the need for the variance:
There was some indication at the original hearing that a neighbor on Hillside Avenue, the rear of whose premises adjoins the Pou lot, may be interested in adding the Pou land to his holding. The matter was not pursued. If that neighbor or any other interested person is willing at the time of the renewed hearing to buy Pou’s lot at a fair price — for example, at the front-foot value of conforming lots in the general residential area- — that fact may be considered on the issue of hardship. [Id. at 31.]
The issue in Gougeon I, supra, 52 N.J. 212, was virtually identical to that in Harrington Glen. The property was 30' X 110' and the ordinance required an area of 5,000 square feet and sideyards of at least ten feet. The variance application sought relief from the area and sideyard requirements. Evidence at the hearing included an offer to buy the property for $7,000. The variance was denied.
This Court observed that “[t]he square foot area and sideyard requirements of the ordinance, together with the use restriction to one-family residences, have zoned plaintiff’s property into idleness. * * * Thus the hardship seems plain.” Id. at 220. We then instructed the Board that, on remand, an unconditional offer to purchase the property for fair value could be a basis for denial of the variance on the ground that the offer might alleviate the claimed hardship:
*490Under the circumstances, if the overall proof at the rehearing satisfies the negative criteria of the statute, the hardship being established, the variance or exception shall be granted, unless a binding offer is made on the record to pay plaintiff the fair market value of his lot, which value cannot be less than $7,000. If the negative criteria are met, but the $7,000 offer is withdrawn or renewed for less than $7,000, the variance or exception shall be granted. To put the matter another way: If the negative criteria are met, plaintiff may in the discretion of the Board be denied the permission to build his house on condition that a binding offer as described above is made and is available for prompt payment to him. If plaintiff refuses such a fair and reasonable offer, the Board may conclude that his case falls short of the exceptional or undue hardship which justifies relief. [Id. at 224.] 1
Similarly, in Chirichello v. Zoning Bd. of Adjustment of Monmouth Beach, 78 N.J. 544 (1979), the Court reviewed the denial of a variance to allow the owner of a vacant undersized lot to build a house. As in the earlier cases, the Court remanded the matter to the Board of Adjustment for more detailed findings on the record. The Court noted that an offer had been made by a neighbor to buy the land, and suggested that “the salability of the land” was “[ajnother yardstick by which undue hardship is to be measured.” Id. at 555. Again, the Court emphasized that the Board’s task was a “discretionary weighing” of the competing interests of the landowner, neighbors, and the community as a whole. Id. at 556. “In weighing and balancing the elements,” the Court held, “the board may consider the propriety of a conditional variance to attain a just and reasonable solution.” Id. at 561.
The same principles were set forth in Commons v. Westwood Bd. of Adjustment, 81 N.J. 597 (1980). There, the vacant lot had a frontage of 30 feet and an area of 5,190 square feet; the ordinance required a minimum frontage of 75 feet and an area . of 7,500 square feet. The applicant had offered to sell the lot *491to a neighbor, but was offered an inadequate price. The Board of Adjustment denied the variance, and its action was affirmed by the Law Division and the Appellate Division. This Court, determining that the record was inadequate and the Board’s findings conclusory, remanded the matter for a supplemental hearing, specifically adverting to the relevance of a fair offer to purchase the property on the issue of undue hardship:
Endeavors to sell the property to the adjoining landowners, the negotiations between and among the parties, and the reasonableness of the prices demanded and offered are also relevant considerations. See Gougeon v. Stone Harbor Bd. of Adjustment, 52 N.J. 212, 224 (1968), where it was held that if an owner of land refused to sell at a “fair and reasonable” price he would not be considered to be suffering an “undue hardship.” If on the other hand the owner is willing to sell at a “fair and reasonable'price” and the adjoining property owners refuse to make a reasonable offer, then “undue hardship” would exist.
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There lurks in the background of cases of this type the possibility that denial of a variance will zone the property into inutility so that "an exercise of eminent domain [will be] ... called for and compensation must be paid.” Harrington Glen, Inc. v. Leonia Bd. of Adjustment, 52 N.J. 22, 33 (1968). When that occurs all the taxpayers in the municipality share the economic burden of achieving the intent and purpose of the zoning scheme. Compared to this result is the denial of a variance conditioned upon the sale of the property at a fair market value to the adjoining property owners. They will perhaps receive the more direct benefit of the land remaining undeveloped and it may therefore be fairer for them to bear the cost. [Id. at 606-07.]
Finally, in Nash v. Board of Adjustment of Morris Township, 96 N.J. 97 (1984), the vacant lot had a frontage of 110 feet compared with the ordinance’s requirement of 200 feet, and an area of 18,594 feet compared to a minimum area requirement of 35,000 square feet. At the variance hearing, testimony was offered indicating that the lot with a variance was worth $31,000 to $34,000 and without the variance was worth $17,000 to $22,000. Prior to the hearing the abutting owner offered to purchase the lot for $22,000. The Board granted the variance, concluding that the evidence of undue hardship was not offset by an offer to buy the property for at least $10,000 less than its value. This Court, affirming the Appellate Division, agreed that the proper standard to determine the adequacy of the abutting owner’s offer was the fair market value of the proper*492ty assuming the grant of the necessary variances. 96 N.J. at 107.
Two features are characteristic of all of the cases in which offers to purchase have been held relevant to the issue of hardship: First, the lot was vacant and undersized; second, the property could not be used at all unless the variances were granted.
In determining whether an offer to purchase property may be germane to a variance application, it is essential to ascertain the nature of the “practical difficulties” or “hardship” on which the application for the variance is based. The Municipal Land Use Law sets forth in some detail the affirmative showing that must be made to support a “hardship” variance:
Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the board of adjustment shall have the power to] grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship * * *, [N.J.S.A. 40:55D-70(c)(1).] 2
As is evident from the statutory language, relief under subsection “c” is available from any regulation, other than *493restrictions on use, enacted pursuant to the zoning power, including, for example, requirements as to lot size, setbacks, land coverage, height, and parking. Moreover, the claim of “hardship” to support the variance can derive from the property’s exceptional shape, its topography, its physical features, the fact that structures already exist on the site, or from other exceptional situations that uniquely affect the property. Cf. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 174 (1968) (“There is no showing in the record of any exceptional narrowness, shallowness, or shape of the hospital tract, or exceptional topographic condition of the land or any other extraordinary physical condition thereof which would cause undue hardship if the height restriction of the zoning ordinance were enforced.”)
Thus, a lot with unusual topography may provide a basis for a variance from restrictions as to maximum height. A narrow lot may in some instances justify a sideyard variance. The existence of a nonconforming structure may justify a variance from maximum land-coverage requirements. The availability of public parking on adjacent property may be a factor that would support a variance from parking requirements. In each of these examples, the claimed hardship need not result in the inability to make any use of the property. Typically, the contention is that the strict enforcement of the zoning ordinance, in view of that property’s unique characteristics, imposes a hardship that may inhibit the extent to which the property can be used.
Obviously, an offer to purchase any property that is the subject of a variance application, under either 40:55D-70(c) or *494(d), would, in the broadest sense, eliminate the need for the variance. But it has never been suggested that in every variance application before a municipal board of adjustment or planning board, offers to purchase the affected property may be submitted for consideration. Such a practice would directly conflict with the statutory scheme that entitles every applicant for a variance to offer proofs to satisfy the positive and negative criteria and obtain a decision by the municipal board granting or denying the variance application.
The only variance cases in which offers to purchase the affected property may properly be considered are those in which the offer is germane to the particular claim of hardship that is advanced to support the variance. As our cases demonstrate, such offers have heretofore been found pertinent only where the claim of hardship is the inability to use the property for any purpose. In such cases, the availability of a fair price for the property is directly relevant to the claim that without the variance, the property has in effect been confiscated by the zoning ordinance. Harrington Glen v. Leonia, supra, 52 N.J. at 29. Absent a variance claim based on inutility, evidence of offers to purchase the affected property should be excluded since they are irrelevant to the statutory criteria on which the municipal board is required to base its decision.
II
Application of these principles to the case before us is particularly difficult because the municipality apparently misapplied its own ordinance in determining what variances were required, and no appeal was taken from that determination. The majority opinion recognizes that “a question exists whether all the requested variances were required.” Ante at 486. At oral argument, appellant’s counsel acknowledged his concern that the municipality improperly required his clients to appeal for variances that were unnecessary. Since I believe the conditional variance doctrine should be restricted only to properties that *495could not be used without the grant of variances, an analysis of the application before the local planning board will demonstrate that the doctrine was misused in this case.3
Concededly, the lot in question was substantially undersized (6,571 square feet compared with an ordinance requirement of 20,000 square feet) and narrow (45.87' frontage compared with an ordinance requirement of 120'). Nevertheless, the ordinance exempts pre-existing lots under single ownership from the area and frontage requirements.4 The record before us contains no explanation for the municipality’s failure to accord this property the benefit of the area and frontage protection apparently afforded by the ordinance.5
Appellant was also required to seek variances for front and sideyard setbacks, driveway width, and open space. The uncontradicted testimony before the Board demonstrated that compliance with these requirements was impossible primarily because of the size and location of the existing structure. The structure had been on the property since at least 1939, had been used as a residence until 1981, and was now proposed for conversion to office use, a use permitted by the ordinance. It constituted a “[n]oncomforming structure,” defined by the Municipal Land Use Law as
*496a structure the size, dimension or location of which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment. [N.J.S.A. 40:55D-5.]
The Municipal Land Use Law expressly protects existing structures against zoning ordinance changes that render such structures nonconforming. N.J.S.A. 40:55D-68 provides:
Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.
The statutory protection afforded to nonconforming structures precludes a municipality from enforcing setback and other spatially related requirements against a structure in existence before the ordinance’s requirements were adopted. Accordingly, it would appear that the municipality in this case erred in requiring appellant to seek variances for front and sideyard setbacks, driveway width, and open space, since the deviations from the zoning ordinance requirements for these aspects of the application were attributable to the pre-existing location of a nonconforming structure on the lot.6
The remaining variance was for insufficient parking. Although the structure contained a basement of 1,416 square *497feet, a first floor of 1,824 square feet, and a second floor of 425 square feet, the applicants testified that they intended to occupy only the first floor. The zoning ordinance required one parking space for each 200 square feet of office space, but Section 2401 of the ordinance appeared to exempt existing structures from this requirement as well:
2. None of the off-street parking facilities as required in this Ordinance shall be required for any existing building or use not now conforming to these requirements, unless said building or use shall be enlarged, in which case the provisions of this Ordinance shall apply.
By removing an existing garage on the property, appellant was able to provide six parking spaces, requiring at the maximum a variance for a shortage of four spaces, without regard to the protection accorded by the exemption for existing structures. The testimony at the hearing was that the offices would be occupied by one attorney, who also maintained an office in Pennsylvania, a one-man real estate office, and a secretary servicing both occupants. Although the issue was not raised before the Board, a voluntary restriction of occupancy to 1200 square feet of the structure could apparently have eliminated the need for any parking space variances.
In view of the imperfect record before us, it is indeed difficult to reconstruct the application to that which should have been the subject of the Planning Board’s review. Because the Board’s site plan hearing followed the variance hearing, it was understandably abbreviated; the site plan review process undoubtedly would have been more elaborate if the municipality had correctly determined the variances required by the application. Nevertheless, it would not appear that this was a case in which the municipality properly could have denied appellant the right to make any use of the property for offices. In fact, the objector’s expert conceded that a smaller office building of approximately 1,000 square feet, with parking below the building, would be an appropriate use. At most, the board may have been empowered to restrict the extent of the occupancy of the existing structure because of the apparent deficiency in parking spaces.
*498Variance appeals afford an opportunity for property owners to seek relief from various aspects of municipal zoning regulation. Such appeals are entrusted to the sound discretion of the municipal board, guided by the positive and negative criteria set forth in the statute. Ordinarily, an applicant for a variance is entitled to a grant or denial of the application without reference to whether an abutting owner may be interested in purchasing the property. Until now, our cases have properly restricted the consideration of an abutting owner’s offer to purchase the property to appeals involving a vacant, undersized lot in which the denial of required variances would render the property useless. In my view, the Board’s consideration of the adjacent owner’s offer in this case was clearly erroneous. The majority opinion’s neutral position on this issue may generate unnecessary confusion in future variance cases as to the relevance of offers to purchase the affected property.
As stated, I concur with the majority’s reversal of the Appellate Division’s judgment.
WILENTZ, C.J., and STEIN, J., concurring in the result.
For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7
For modification — None.
On remand, the Board denied the variance on condition that the intervenors offer to buy the lot for $8,100. The offer was made and rejected. Gougeon sought review of the Board’s action and this Court reversed, concluding that although the offer to purchase was a "circumstance to be considered in the application of the Board’s statutory discretion," Gougeon v. Board of Adjustment of Stone Harbor, 54 N.J. 138, 149 (1969) (Gougeon II), the Board’s denial of the variance nevertheless constituted an abuse of discretion. Id.
The recently adopted amendments to the Municipal Land Use Law, L. 1984, c.20, resulted in an expansion of the statutory grounds for which a board of adjustment could grant bulk variances
where in an application or appeal relating to a specific property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the board of adjustment shall have the power to] grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board *493has power to review a request for a variance pursuant to subsection 47 a. of this act * * *. [N.J.S.A. 40:55D-70(c)(2).]
This amendment, which creates what has been termed the flexible “c” variance, see New Jersey State Bar Ass'n Land Use Law Section Newsletter, June, 1984, Vol. IV, No. 1, p. 3, apparently reflects the Legislature's intention to permit bulk variances where there is inadequate evidence of hardship but where the variance would advance the purposes of the Municipal Land Use Law.
Although not part of the record before the Planning Board, counsel has furnished the Court with the current municipal zoning ordinance adopted in 1976, as amended.
Section 510 of the zoning ordinance provides:
Any parcel of land with an area or width less than that prescribed for the zone in which such lot is located, which parcel was under one ownership at the date of the adoption of this Ordinance, when the owner thereof owns no adjoining land, may be used as a lot for any purpose permitted in the zone other than multiple dwellings, provided that all other regulations prescribed for the zone by this Ordinance are complied with.
Conceivably, the property’s nonconformity with frontage and area requirements initially occurred as the result of an earlier ordinance that did not protect pre-existing lots. There is nothing in the record to indicate that this occurred.
The ordinance required a minimum width of 25 feet for two-way driveways. At the hearing before the Board, plaintiffs architect testified that the driveway width at the entrance to the lot was 22 feet but that the width of the driveway tapered down to 10.8 feet as a result of the location of the existing structure. Although the record is unclear, it is reasonable to assume that the entire deficiency in the width of the proposed driveway is attributable to the location of the structure on the lot.
The ordinance also required open space equal to 25% of the area of the lot, but parking areas and driveways were not included as part of the required open space. The applicant's inability to comply with the open-space requirement was attributable to the combined effect of the area of the existing structure (approximately 1,800 square feet), the area occupied by the six proposed parking spaces (approximately 1,200 square feet) to be installed where an existing garage was being demolished, and the area occupied by the driveway.