I am unable to agree with the holding of the majority in this case on the question of the reasonableness of the restriction of the zoning ordinance upon the use of the land in question and the existence of an undue hardship in the strict enforcement of the ordinance.
The factual situation is set out in the majority opinion. The principles of law to be applied have been stated in the cases. "The statute provides that regulation of use of property shall be made with reasonable consideration to the character of the district and its peculiar suitability for particular uses, with a view of conserving the value of property and encouraging the most appropriate use of the land." Gabrielson v. Glen Ridge,13 N.J. Mis. R. 142. "The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or general welfare." Nectow v. Cambridge,277 U.S. 183. *Page 449
A consideration of the physical situation reveals that the tract which prosecutor seeks to use for lumber yard purposes would be entirely unsuitable for the construction of residences. There is but a 54.5 feet street frontage and insufficient width for the construction of a new street. It extends back in a westerly direction from Lakeview Drive, at approximately the same width, 54.5 feet, for a distance of about 385 feet to the railroad tracks. The longer side of the "L" shaped lot runs along the railroad tracks, at a width of approximately 50 feet, for a distance of 540 feet. There could be constructed upon this large tract of land but one single family residence. To require that it be devoted to such use and no other would be to deprive the owner of its use and would certainly not be devoting the land to its most suitable use. "It is also to be remembered that the use of property is one of the essential attributes of ownership. Ownership without use is fatuous. True, every owner holds his property subject to the implied condition that it will not be used for the injury of others and also subject to a degree of municipal control in the interest of the common good." Frank J.Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183. The ordinary and lawful use of property is not authorized by the statute to be prohibited because it may be repugnant to the sentiments or desires of a particular class residing in the immediate neighborhood but only because such use is detrimental to the interests of the public at large. An examination of the map of the locus in quo discloses that the lot in question abuts residential properties facing Lakeview Drive only at the extreme rear thereof, at distances varying from 150 to 300 feet from the street line. The smaller side of the "L" also runs along the side of two properties facing Lakeview Drive at the point where it has its frontage on that street. By and large there is no very close proximity of the lot to dwelling houses in the zone and for almost half of its boundary the lot abuts the present lumber yard and the right of way of the railroad. There is no showing that a lumber yard is per se dangerous or that it is fire hazard, in view of the fact that such establishments are permitted in a general business zone. Frank J. Durkin LumberCo. v. Fitzsimmons, supra. *Page 450
I am of the opinion that, in view of the existing conditions, the non-conforming use of the adjacent lands, the peculiar location, size and shape of the tract in question, and all the surrounding circumstances, the imposition of the restriction was unreasonable and arbitrary, and worked an undue hardship upon the prosecutor. The action of the board should be set aside. I think likewise that the denial of permission to erect a fence about the lands was arbitrary and without warrant, and not justified by any considerations of public health, safety or general welfare.