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Lake Intervale Homes Inc. v. Township of Parsippany-Troy Hills

Decided: August 30, 1957.


Hall, J.s.c. (orally).


This is another chapter in the litigious history of the Lake Intervale development in defendant township. That history derived from prior reported decisions, and the evidence presented to date in the instant case forms the background of the precise issue presently before the court.

This suit seeks to recover money damages from the township representing plaintiff's cost of constructing streets and installing water mains in certain sections of the development. It is brought on a quasi -contractual theory.

On June 9, 1941 the township committee approved a map of the development, the entire tract then being owned by the Lake Intervale Corporation. The map was filed in the Morris County Clerk's Office July 11, 1941. By the map the tract of 70 acres or so, bounded on the north and west by Intervale Road, an established highway, was divided into over 300 lots laid out, except for a few fronting on Intervale Road, on some 13 new interior streets, roughly surrounding a small lake. Practically all of the lots had a frontage of approximately 50 feet and were of varying depths, running from 100 to 200 or so feet, the great majority being from 103 feet to 130.

At that time the municipality had no zoning ordinance or subdivision regulation ordinance. The map was approved and filed under the so-called "Old Map Act," R.S. 46:23-1 to 9, inclusive. Municipal action was required by R.S. 46:23-2(e), which prohibited filing where a map showed new streets until the streets as shown were approved by the governing body. By this statute, and in the light of its purpose to avoid confusion in conveyances, the governing body's approval of the map is confined to that effect. Magnolia Development Company v. Coles , 10 N.J. 223, 226 (1952). The delineation of the lots on such an approved map is no guaranty that each will be sufficient in itself to be built upon when the time comes to do so. Ardolino v.

Florham Park Board of Adjustment , 24 N.J. 94, 103 (1957). After the filing of the map the municipality assessed the tract for tax purposes on an individual lot basis.

The first zoning ordinance was adopted in 1945, placing this tract in a single-family residential zone, and which, by virtue of various amendments, required as of July 1952 a minimum lot area of 15,000 square feet with a minimum frontage of 100 feet, except that where, as here, a map had been approved by the township committee and/or the planning board and filed in the county clerk's office before the passage of the ordinance as amended, containing lots less than 15,000 square feet in area, any such lot would be occupied by a single-family dwelling if the lot had a minimum frontage of 100 feet "and a minimum depth equal to the minimum depth shown on said map for any lot within the whole area covered by the particular lot thus to be occupied by a single family dwelling."

It would appear that no single lot on this map meets this requirement, and only a very few met the requirement prior to the 1952 amendment. In prior litigation it was held that such zoning regulations adopted subsequent to the filing of the map are applicable to the lands delineated thereon. Rodee v. Lee , 14 N.J. Super. 188 (Law Div. 1951); Herman v. Board of Adjustment of Parsippany-Troy Hills Township , 29 N.J. Super. 164 (App. Div. 1953). It should also be noted that the streets shown on the Lake Intervale map, as filed, are also found on the township zoning map.

I take it that in the early years, at least until 1950, the development was singularly unsuccessful, perhaps due to war conditions. Apparently only a very few lots were sold; the evidence before me is not specific. As a result of a mortgage foreclosure sale held in late 1949 and completed in February 1950, Reid Development Corporation acquired title to 332 of the lots. This corporation was dominated by Mr. Abraham M. Herman, a lawyer, since deceased. Maneuvering and litigation thereafter commenced, first seeking to avoid the effect of the minimum lot area and frontage requirements

of the zoning ordinance. By deed dated May 21, 1950, but not recorded until September 27 of that year, six days before the date of passage of one of the zoning amendments involved, Reid conveyed 90 lots to Herman's wife Fannie, for an evident consideration of $500. These lots were apparently in the eastern end of the development with which we are principally concerned in the instant suit. The lots so conveyed were not contiguous but in each instance separated by one still owned by Reid. Apparently about the same time at least 11 lots in the same general area were conveyed to a man named Rodee. Some of these were contiguous; two were not. Efforts to secure variances to permit building on the 50-foot lots on a claim of undue hardship were unsuccessful, except as to the two isolated lots purchased by Rodee, in the Rodee and Herman cases, supra , the court in the latter decision pointing out that the conveyance to Mrs. Herman "was adroitly purposeful in an anticipated effort to avoid the restrictions of the expected ordinance." In the lots involved in the present litigation we find plaintiff meeting zoning ordinance requirements by combining contiguous lots to make up required area and frontage for a single dwelling.

The evidence before me is to the effect that prior to 1954 only eight lots had been built upon, although apparently some others had been sold here and there to persons other than Reid, Mrs. Herman and Rodee. The evidence on the latter point is very general and vague. The houses built were obviously under an earlier provision of the zoning ordinance permitting single-family residences on lots of less than 7,500 square feet in old platted areas, and they are said to be about 15 years old. One street, Lake Drive, for a distance of about 500 feet south from Intervale Road, in the easterly part of the development, appears to have been paved and water mains installed, but there is no evidence as to when or under what circumstances. The lots built upon were served by this drive or from Intervale Road. No other streets in the development were improved prior to late 1955, and only about 600 feet of water main had been

installed, that on Fairway Place, the most easterly northsouth street leading off Intervale Road, under circumstances now to be mentioned.

In April and May 1950 Reid applied to the township for this 600-foot installation of a water main, at municipal expense, the water system being municipally owned and operated, from the main on Intervale Road, southerly on Fairway Place. Reid did not at the time own all of the land on both sides of the street which the main would traverse. The municipality offered to share in the cost, provided Reid revised the map to provide for 100-foot-frontage lots and secured planning board approval. The township had no subdivision regulation ordinance at the time requiring approval of plats or installation of improvements by developers, as permitted under the old Planning Act. R.S. 40:55-12 to 14, inclusive, as amended L. 1948, c. 464, p. 1904, et seq. Perhaps it should be noted that the municipal position in this respect was taken prior to the decision in the Herman case holding that subsequent zoning ordinances are applicable to previously filed maps with respect to lot area and frontage requirements. An action in lieu of mandamus was instituted and the trial court denied Reid relief. Pending the litigation in August 1951 the township passed an ordinance relating to the extension of water mains, obviously bad for lack of a standard governing the exercise of the discretionary authority granted thereby. On appeal the Supreme Court reversed, holding that the ordinance was invalid and that Reid was entitled to relief by way of mandamus on the grounds that "it was an abuse of discretion to use the grant as a means of coercing the landowner into acceptance of the minimum lot-size restriction upon his lands, however serviceable to the common good." Reid Development Corporation v. Township of Parsippany-Troy Hills , 10 N.J. 229, 238 (1952). The court specifically said that there was no issue or claim that the requested enlargement of the service was indefensible on economic grounds, either on the basis of need or cost. As a result

of this case the 600 feet of water main on Fairway Place was installed by the municipality at its sole expense.

Immediately after the Supreme Court's decision was handed down June 23, 1952, Reid renewed an earlier request for some 3,060 feet of additional main. Three days previously the township had adopted an ordinance requiring that developers install water mains at their own expense. The exact location of the mains sought is not disclosed. The length stated is greater than is involved in the present action; I presume the general location is the same. Refusal of the municipality to accede to the demand resulted in another action in lieu of mandamus. The trial court denied relief. On appeal the Appellate Division held the ordinance invalid "because of the lack of statutory authority to impose the costs in the manner ordained," but found that there was no abuse of discretion, as a matter of fact, in the municipal refusal to extend the mains, on economic grounds. Reid Development Corporation v. Township of Parsippany-Troy Hills , 31 N.J. Super. 459 (July 16, 1954).

It is to be noted that there appears to have been no litigation involving any claim or demand by Reid for the construction of streets by the township.

On June 1, 1954 the township adopted a subdivision regulation ordinance pursuant to the authorization of the Planning Act of 1953 (N.J.S.A. 40:55-1.14 et seq.), requiring the approval of plats of subdivision by the governing body after favorable referral by the planning board, and the installation of improvements or guarantee thereof, as may be required by the governing body, including street pavement and water mains, before the granting of final approval and the filing of the map.

Plaintiff's evidence in the instant case goes beyond the issue presently before me. From all the evidence received pertinent to ...

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