Stanton, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
[51 NJSuper Page 525] This is an appeal by the planning board and the mayor and council of the Borough of Ramsey from a judgment of the Law Division setting aside a resolution
of the planning board classifying a proposed subdivision of plaintiffs' lands as a "major" and not a "minor" subdivision and "disapproving" it, directing the mayor and council to approve it as a "minor" subdivision, and dismissing a counterclaim asserted by the governing body for injunctive relief against alleged interference by plaintiffs with a drainage easement held by the municipality over the lands.
Since our view of the case involves administrative procedural considerations under certain aspects of the Municipal Planning Act (1953) (L. 1953, c. 433; N.J.S.A. 40:55-1.1 et seq.) not previously considered by our appellate courts, we think it advisable first to sketch the pertinent provisions of the act and of the land subdivision ordinance of the borough adopted pursuant to the authority thereof, the latter of a type in common use in this State today.
One of the powers granted to municipalities by this statute is authority to regulate the subdivision of land (N.J.S.A. 40:55-1.14), which is defined as "the division of a lot, tract, or parcel of land into two or more lots, sites or other divisions of land for the purpose, whether immediate or future, of sale or building development * * *," with certain non-pertinent exceptions (N.J.S.A. 40:55-1.2). Such regulation is, like zoning, another tool for planning. Cf. Kozesnik v. Montgomery Township , 24 N.J. 154 (1957); Cunningham, "Real Property ," 12 Rutgers L. Rev. 218, 249 (1957). It is not mandatory but permissive, exercisable by municipal ordinance. The basic method of such regulation is "by requiring the approval of the governing body, by resolution, of all plats [the map of a subdivision] after favorable referral by the planning board before such plats may be filed with the county recording officer * * *." (N.J.S.A. 40:55-1.14). Lake Intervale Homes, Inc. v. Parsippany-Troy Hills Township , 47 N.J. Super. 334, 349 (Law Div. 1957). Alternatively, the same section permits such approval to be exercised by the planning board alone, acting in lieu of the governing body, if provision to that effect is made in the ordinance creating the planning board. If no such provision is made, the planning board acts merely
as an initial reviewing and reporting agency to the governing body (except as hereinafter noted) "in accordance with regulations, requirements and standards established by the governing body" in the ordinance (N.J.S.A. 40:55-1.14). Ramsey adopted the first of the two alternatives, its subdivision ordinance stating: "The approval provisions of this ordinance shall be administered by the governing body after favorable referral by the Ramsey Planning Board * * *." The latter is, consequently, what has come to be called a "weak" planning board, as distinct from one given full approving powers commonly known as a "strong" planning board.
The mechanics of approval of a subdivision provided by the statute and carried into the ordinance, broadly speaking, provide for three steps. The first one derives from another permissive provision of the act stating that any subdivision ordinance
" may exempt from the requirement of local municipal approval , subdivisions wherein the number of new lots is less than a designated number, or plats that do not involve new streets, or such other classes of subdivisions as such ordinance shall designate. In all cases involving such exempted subdivisions, the mayor or planning board chairman, as the case may be [depending on whether the planning board is a "weak" or "strong" one], and the municipal clerk shall certify the exemption on the plat, deed, or instrument to be filed with the county recording officer." (N.J.S.A. 40:55-1.14) (Emphasis ours throughout).
Where an ordinance provides for such exemption the first step, therefore, involves the classification of the proposed subdivision as exempt or non-exempt. If found to be exempt, approval, in the sense of affirmative action by the governing body as distinct from the mere ministerial certification by the mayor, is unnecessary. If found not to be exempt, the next steps come into play. Again broadly speaking, they are, in most instances, "tentative" approval (N.J.S.A. 40:55-1.18) based on a preliminary plat and, ultimately, final approval. We are not involved in this case with the latter two steps and are not called upon to comment on the statutory and ordinance provisions relating thereto.
Ramsey's ordinance does purport to provide for "exemption" of certain kinds of subdivisions by use of terms which, though somewhat confusing in the light of the statutory language, have become very common in such ordinances, i.e. , classification as a "minor subdivision" or a "major subdivision." The term "exempt" is not used in this ordinance, but we think the classification must find its origin and, therefore, its incidents in the statutory exemption provision. "Minor subdivision" is defined as: "Any subdivision containing not more than four lots fronting on an existing street, not involving any new street or road or the extension of municipal facilities and not adversely affecting the development of the remainder of the parcel or adjoining property and not in conflict with any provision or portion of the master plan, official map, zoning ordinance or this ordinance." "Major subdivision" is defined as: "All subdivisions not classified as minor subdivisions."
The statute further requires that the local ordinance must contain standards "for approving the design of subdivisions and the required street improvements, requirements for the submission of subdivision plats, and the procedure to be followed by subdividers." (N.J.S.A. 40:55-1.15). In addition, certain compulsory standards are imposed on the board by N.J.S.A. 40:55-1.20 in acting on all plats, i.e. , whether it is a matter of exemption or, if non-exempt, of approval in the case of a "strong" board or favorable referral to the governing body in the case of a "weak" board. This section specifies that the board
"shall require, among other conditions in the public interest, that the tract shall be adequately drained, and the street shall be of sufficient width and suitable grade and suitably located to accommodate the prospective traffic, to provide access for fire-fighting equipment to buildings and to be co-ordinated so as to compose a convenient system, * * *."
"that all lots shown on the plats shall be adaptable for the intended purposes without danger to health or peril from flood, fire, erosion, or other menace."
Further in this regard, the Ramsey ordinance, in the section devoted to design standards of lots, specifies, inter alia:
"Where there is a question as to the suitability of a lot or lots for their intended use due to factors such as rock formations, adverse soil, flood conditions or similar circumstances, the planning board may, after adequate investigation, withhold approval of such lots."
The governing body (not the planning board even in the case of a "strong" board) may also require, before final approval of plats, "in accordance with the standards adopted by ordinance, the installation, or the furnishing of a performance guarantee in lieu thereof," of such improvements as it may deem to be necessary or appropriate in the public interest. N.J.S.A. 40:55-1.21. (Ramsey specifies in advance its requirements for such improvements by detailing them in the ordinance.) Obviously this section can have no application where the subdivision is found to be an exempt one not requiring any further approval.
The procedural pattern prescribed by the Ramsey ordinance, in purporting to follow the authority of the enabling act, provides initially, in the case of all proposed subdivisions, for the submission of a "sketch plat," "for purposes of classification and preliminary discussion" to be filed with the borough clerk and submitted by the latter to the planning board for consideration. The ordinance directs that the chairman of the board shall appoint a "subdivision committee" of three members to "classify subdivisions in accordance with the provisions of this ordinance," meaning classification as between "major" and "minor." If the committee unanimously classifies the proposal as minor, it shall place a notation to that effect on the sketch plat and file the same together with a written report of its action with the governing body, and the plat shall then be turned over to the mayor and clerk for certification and the original plat returned to the subdivider within one week following the next regular meeting of the governing body. "If the plat is classified and approved as a minor subdivision, but is not
approved by unanimous action of the committee, then the plat shall be referred to the Planning Board with the written report of the committee for further action," and if the board "also classifies and approves the plat as a minor subdivision," the same procedure is to be followed as in case of unanimous action by the committee. (Note the presence in the case of non-unanimous committee action of a requirement not only of classification but also of approval -- by which we assume is meant a finding of conformity with the various substantive standards and requirements of the statute and ordinance as heretofore referred to -- and the omission of any requirement of approval where the committee acted unanimously. The omission in the latter case would appear to be inadvertent rather than deliberate.) The same section of the ordinance further provides that if a plat is classified as a major subdivision, i.e. , is not found to be exempt from further approval, notation to that effect shall be made on it and the plat returned to the subdivider for compliance with the further procedure of the ordinance relative to tentative and final approval of major subdivisions.
One other provision of the statute is of decisive importance in the instant case. It is found in N.J.S.A. ...