(dissenting). This is an appeal from a judgment in an action in lieu of a prerogative writ which judgment affirmed the granting of a variance under R. S. 40:55-39 (c) by the Board of Adjustment of the Township of Cranford.
There is a presumption that the power and discretion of a board of adjustment has been properly exercised, and we have held that this court will not exercise its original juris*344diction in such matters in the absence of clear proof that such action is arbitrary or capricious to the extent that an abuse of discretion is spelled out. Lynch v. Hillsdale, 136 N. J. L. 139, 133 (Sup. Ct. 1947); affirmed 137 N. J. L. 380 (E. & A. 1948); Oliva v. Garfield, 1 N. J. 184 (1948) ; Monmouth Lumber Co. v. Ocean, 9 N. J. 64, 76 (1952).
It is only where there is no competent proof of unnecessary hardship or where the board bases its action upon an unauthorized standard for determining “unnecessary hardship” and acts beyond its statutory sphere of action, that an appellate court should apply the necessary corrective. Bamsbotham v. Board of Public Works, 3 N. J. 131 (1949); Siolz v. Ellenstein, 7 N. J. 391 (1951).
While the applicant has the burden of proof to establish unnecessary hardship to justify a variance by the board of adjustment, Home Builders Ass’n. v. Paramus, 7 N. J. 335 (1951), on review or appeal the appellant has the burden of establishing that the action of the board of adjustment is arbitrary and capricious.
In this case the record is meager and possibly deceptive. Neither the zoning ordinance nor the map is before the court. We have what is referred to as a “blown up” copy of the tax map for the locality which gives meager evidence of the irregularity of the plot, but we have no proof whatsoever as to grades or the topography of the land, especially since part of the area is bounded by a branch of the Rahway River. The topography of the land could have been a vital factor in the decision of the board. Likewise nothing appears as to the size of the buildings or other structures used in the commercial enterprise of the Cranford Convalescent Home which is adjacent to the tract in question. This could have a militating effect on the use of this property for residences in a Class A residential zone. These factors added to those testified to by the real estate expert of the respondent make out a plausible ease for the applicant.
The majority opinion apparently concedes all of these facts but bases its conclusions upon two or three legal premises *345which it deduces from the applicable statutory provision. The first is that the respondent has made no attack on the reasonableness of the ordinance. I do not think that such a question has to be raised in an application for a variance and that it could not be decisive on the question of the granting of a variance on the ground of undue hardship. The test of whether a zoning ordinance is reasonable depends upon its application to all of the property in ah entire township, not to its impact upon a particular piece of property. And it is for this reason that there is carefully provided in the zoning statute sections permitting variances for the various reasons set up in R. S. 40:55 — 39.
It could very well be that the respondent may be able to prove in a direct proceeding that due to the large number of substantial variances, granted and existing on contiguous and adjacent properties in the immediate area, that the denial of his application would amount to a denial to him of due process and the equal protection of the law, but he does not have to go that far in order to justify a variance under the section in question.
The second proposition advanced by the majority is that the board of adjustment is required by R. S. 40:55-39 to make an express finding that the relief “can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” I find no such explicit direction in the statute and where, as here, the proofs are such that they indicate there was no substantial detriment to the zone plan, zoning ordinance or the health, morals and safety of the general public in the township, then the omission of such an express finding does not and should not render the finding of the board void. Additional inconvenience which might possibly disturb the even tenor of the present use of adjacent or contiguous properties resulting from the fact that additional neighbors may enter the area is not the substantial detriment the statute intends.
*346The third premise upon which the majority opinion rests is that the phrase “specific property” as used in the statute limits the power of the board of adjustment in granting a variance “to the sizes generally of pieces of property in the zone devoted to the permitted use.” By so interpreting this phrase the majority are reading into the statute an important limitation which is not there even by inference.
Zoning ordinances ordinarily speak prospectively and their greatest impact is felt upon undeveloped lands. An owner is entitled to use his land to its best and highest use subject to reasonable zoning requirements and the size of his property is relatively unimportant because an owner with 9% acres of rocky hillside or gully is entitled to entirely different treatment under a zoning plan or ordinance, than the owner of 9y2 acres of flat level land. The. topography and physical aspects of the land are of vital and decisive force not only on the question of zoning but on the question of a variance to be granted under the zoning act. The mere observation of property lines and acreage on a plat map or zoning map merely leads to abstract deductions as a matter of plane geometry in determining the extent of the irregularity of the linear dimensions. Zoning involves considerably more than that, and while it may very well be that a zoning ordinance may limit the size of lots and regulate the size of buildings on lots so subdivided, yet there is nothing before this court that indicates that is the situation in this case.
The danger in this broad pronouncement in the majority opinion is that it will give a. distinct advantage to the developers of choice tracts of land who have already subdivided their acreage in a manner most advantageous to them which subdivision, if binding, as the majority intimates^ on the owners of adjacent tracts would prevent the owner of hilly or rocky lands or lands cut through by gullies and gorges to make the best possible, use of his acreage.
I do not think that in the absence of proof in this case that the size of the lots were fixed by the zoning ordinance, that the pronouncement on this point by the majority is relevant *347and necessary. The case is a close ease on its facts but I feel the weight of the present proofs sustain the granting of the variance by the board and that the appellant has failed to make out a case of arbitrary action. I would affirm.
Mr. Justice Burling authorizes me to state that he concurs in this dissent.
For reversal — Chief Justice Vanderbilt, and Justices Heher, Wacheneeld, Jacobs and Brennan — 5.
For affirmance — Justices Oliphant and Burling — 2.