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Smilow v. City of Orange Planning Board

Decided: November 16, 1959.

MARC R. SMILOW, PLAINTIFF-RESPONDENT,
v.
CITY OF ORANGE PLANNING BOARD, BOARD OF COMMISSIONERS OF THE CITY OF ORANGE, DEFENDANTS-APPELLANTS, AND DERBRO, INC., DEFENDANT-APPELLANT



Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.

Haneman

On November 1, 1958 Derbro, Inc. (Derbro), the owner of a lot in the City of Orange known as lot 4, block 205, and located at 621 Berkeley Avenue, applied to the City of Orange Planning Board for approval of a subdivision thereof into three lots. This proposed subdivision was submitted to the planning board as a minor subdivision under Article IV of the land division ordinance of the City of Orange, which reads:

"4. Minor Subdivisions. Any subdivision containing not more than three (3) lots fronting on an existing minor 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.

5. Major Subdivision. All subdivisions not classified as minor subdivisions."

Article V of said ordinance, as amended, reads:

"(b) If classified and approved as a minor subdivision by the unanimous action of the Subdivision Committee, a notation to that effect will be made on the sketch plat. In all such cases involving such exempted subdivisions, the Mayor of the City of Orange and the Municipal Clerk shall certify the exemption on the plat, deed or instrument to be filed with the County Recording Officer, and thereupon returned to the subdivider within one week following the next regular meeting of the governing body. No further governing body approval shall be required."

As for major subdivision, Article V continues:

"2: (b) The secretary of the planning board shall notify by mail at least five (5) days prior to the hearing all property owners within 200 feet of the extreme limits of the subdivision as their names appear on the municipal tax record. Said notice shall state the time and place of hearing, a brief description of the subdivision and that a copy of said subdivision has been filed with the municipal clerk for public inspection. The secretary shall also cause notice of the hearing to be published in the official newspaper or a newspaper of general circulation in the municipality at least ten (10) days prior to the hearing."

On November 12, 1958 the planning board, having determined that the request was for a minor subdivision, approved the same without public notice or hearing. On December 18, 1958 the Board of Commissioners of the City of Orange approved the subdivision.

Plaintiff, who is the owner of a lot which faces Tremont Place and which has a common boundary with a portion of the southerly line of the Derbro lot, filed an action in lieu of prerogative writs contesting the validity of the foregoing action of the planning board and of the board of commissioners. Plaintiff's complaint alleges, in part, the following:

"4. The application asked that the lot in question be subdivided into three (3) smaller parcels, one of which would contain a garage-residence as the only structure thereon. The garage-residence was a nonconforming use in that it predated and failed to conform to the then effective Zoning Ordinance of the City of Orange. The sizes of the side lot and the front lot of this smaller parcel were less than the minimum standards of the Zoning Ordinance.

6. On November 12, 1958, the defendant Planning Board approved said application of Derbro, Inc.

8. This approval by the defendant Planning Board was beyond its authority in that the granting of said subdivision altered the character of the aforementioned nonconforming use in such a manner as to cause it to lose its immunity under the Zoning Ordinance of Orange, New Jersey. Such an alteration of character constituted the creation of a Zoning Ordinance violation, or the creation of a Zoning Ordinance variance, neither of which is within the Planning Board's power to grant.

9. The adoption and approval of the defendant Planning Board's instant action was beyond the authority of the defendant Board of Commissioners in that it constituted an unauthorized and improper action."

Cross-motions for summary judgment were made by plaintiff and Derbro pursuant to R.R. 4:58. The trial court concluded that the subdivision was illegal and judgment was entered for plaintiff. Defendants appeal from this judgment. The record was settled by order of the trial court.

The planning board and board of commissioners argue, inter alia , that: (1) the proposed subdivision was a minor

subdivision since it concerned no more than three lots and was not "in conflict with any provision or portion * * * of the zoning ordinance"; (2) Peterson v. Board of Adjustment of Town of Montclair , 7 N.J. Super. 282 (App. Div. 1950), is not apposite to the present cause and the trial court erred in relying thereon; and (3) the presumption of the validity of municipal action was not rebutted by plaintiff. They conclude that their action resulted in a legal subdivision.

Derbro argued that the subdivision was valid since it did not result in a violation of any section of the zoning ordinance of the City of Orange, and therefore was a "minor subdivision."

Plaintiff argues that: (1) the use and location of a building on the rear of lot 4, block 205 were in conflict with the purposes and provisions of the zoning ordinance; (2) Derbro, therefore, sought a major rather than a minor subdivision, and (3) as a result, the approval of the subdivision without prior notice and hearing was illegal.

The basic question which is the common denominator of all of appellants' contentions is whether the subdivision here sought was minor or major; all of appellants' arguments revolve about this pivotal query. In order to find the solution it is necessary to determine whether the proposed subdivision is "in conflict" with any provision or portion of the zoning ordinance, since it is undisputed that the other essentials of a minor subdivision, as set forth in the ordinance are here present.

The planning board and the board of commissioners argue that the words "in conflict" are not synonymous with the words "in violation." They rationalize that planning and zoning ordinances are separate and distinct and that it is not the duty, generally, of a planning board, when passing on a subdivision of plots, to concern itself with zoning regulations. They reason that a planning board, when functioning under a subdivision ordinance, "is not primarily concerned with zoning regulations, but with land division,"

and this becomes clear and is made manifest on a reading of the statute dealing with subdivision standards. N.J.S.A. 40:55-1.15, which reads:

"Before the planning board may take the action of favorable referral and the governing body may approve subdivisions or before a planning board may be authorized to grant final approval, the governing body shall adopt by ordinance, 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. Where there is a municipal zoning ordinance, the standards in the subdivision ordinance with respect to minimum lot sizes and lot area requirements shall be identical with the provisions of the zoning ordinance. Where a zoning ordinance contains no such provisions or where there is no such ordinance, the standards including minimum lot sizes and lot area requirements shall be specified in the subdivision ordinance. * * *"

The statute, they say, indicates that the main thrust of subdivision is intelligent lot division or land area. Under the statute, it is said: "the norms to be followed in subdivision do not concern the technical zoning provisions. The norms are those naturally concerning subdivision, namely, lot area and lot size. These are the only zoning standards the subdivider must, by the subdivision statute, concern himself with. This would indicate a common sense and a legislative intent to limit the area of concern for those passing on subdivision to the provision in the zoning laws directly concerned with the actual division of land." They conclude that the word "conflict" relates only to lot size and area requirements of the zoning ordinance and since there is no asserted "conflict" arising from any provision or portion of the zoning ordinance relating to lot size or area, the subdivision sub judice should be classified as minor.

Initially, therefore, it becomes necessary to determine whether the word "conflict" may be interpreted in the restricted sense as argued.

Planning and zoning are sometimes considered so closely related as to constitute a single concept. However, they are not identical. Mansfield & Swett, Inc. v. Town of West Orange , 120 N.J.L. 145, 148 (Sup. Ct. 1938); Antonelli

Construction Co. v. Milstead , 34 N.J. Super. 449, 455 (Law Div. 1955); 8 McQuillin, Municipal Corporations 31, § 25.08 (1957); Angermeier v. Borough of Sea Girt , 27 N.J. 298, 308 (1958); 101 C.J.S. Zoning § 4 (1958); Goldstein v. Lincoln ...


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