Conford, Foley and Halpern. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiffs are real estate developers who brought this action in the Law Division to compel the defendant officials of the Township of Roxbury to permit them to proceed with a subdivision development under a tentative, and, in part, final approval accorded thereto by the planning board of the municipality. The Law Division granted summary judgment to defendants. Important and novel questions of construction of the Municipal Planning Act (1953) are presented. L. 1953, c. 433 (N.J.S.A. 40:55-1.1 et seq.).
Basically, the record before us consists of the pleadings, affidavits and exhibits on motion by plaintiffs and cross-motion by defendants for summary judgment. Since we have decided that there must be a reversal and remand for trial of material issues of fact, we will also refer to factual representations by the parties not strictly within the record but partially explanatory of why remand of a portion of the case is necessary. However, we do not condone the references in appellate briefs to factual matters not of record, and all material facts will have to be stipulated or satisfactorily proved on remand.
In April 1956 plaintiffs submitted to the planning board an application for subdivision of their 124-acre tract of land into 254 residential lots as shown on a plat, each of which would satisfy the then existing zoning requirement of minimum lot areas of 15,000 square feet for a "B" residence district. Under the ordinance establishing a planning board in this municipality, the board is vested with full powers of approval of subdivision applications ("strong board") rather than constituted as an initial reviewing and
reporting agency to the governing body. See Kotlarich v. Ramsey , 51 N.J. Super. 520, 526-527 (App. Div. 1958), a comprehensive discussion of the general scheme of the statutory plan for approval of subdivisions (per Judge, now Mr. Justice, Hall); also Lake Intervale Homes, Inc. v. Parsippany-Troy Hills , 28 N.J. 423, 432-441 (1958), discussing the impact of the 1953 act upon lands platted under the Old Map Act.
The plaintiffs' plat was submitted to the Morris County Planning Board for review, as required in cases where county road drainage may be affected (N.J.S.A. 40:27-12). After study, that agency informed the local planning board that the existence of a high water table and low spots in the tract indicated that individual sewage disposal systems might not be satisfactory; moreover, since the township had no sanitary sewer system, that consideration be given to the treatment and disposal of sewage through a disposal plant, or, in the alternative, to a requirement for larger building lots.
On June 7, 1956 the planning board granted tentative approval to the preliminary application for 254 lots, subject to the condition, inscribed on the map submitted by the plaintiffs, "Conditional approval June 7, 1956, subject to percolation tests to establish the advisability of a disposal plant."
By amendment of the township zoning ordinance effective November 12, 1956 the minimum size of lots in the "B" residence district was increased to 30,000 square feet. In October 1959 (subsequent to the filing of this action) a comprehensive new zoning amendment was adopted pursuant to which the area in question became an R-1 residence district calling for minimum lot areas of 40,250 square feet or, where the planning board approved, in large-scale subdivisions, 34,500 square feet. Until the events of June 1959 hereinafter related, however, none of the township officials apparently considered the more restrictive lot area requirements applicable to plaintiffs' subdivision application.
In November 1957 one of the plaintiffs applied for and received approval from the planning board of a minor subdivision of three building lots on high land along pre-existing Pleasant Hill Road, which ran through the southeasterly corner of the entire tract. These lots were of areas exceeding 15,000 square feet but less than 30,000 square feet. Beginning in September 1958 plaintiffs constructed model homes on two of these lots at a cost of approximately $21,000 each, exclusive of land, and installed curbing on and widened the existing county road, at a cost of about $1,724, as required by the planning board.
In the early part of 1958 plaintiffs had sought approval of the entire proposed subdivision from the Federal Housing Administration in order that individual homes to be erected might qualify for federally insured mortgages. The federal agency made various recommendations relating to the development of the tract, including the construction of a sewage disposal plant. From an affidavit of the clerk of the planning board it appears that at a meeting of the board August 21, 1958 consideration was given to and concurrence had in certain of the said recommendations, and a letter sent to the Federal Housing Administration to that effect with the approval of the representative of the plaintiffs. But the planning board never concurred in the recommendation of the federal agency for the location of a proposed sewage disposal plant on certain land adjacent to plaintiffs' tract, then intended for public recreation and subsequently put to such use. Plaintiffs claim, and defendants deny, that the board also informed the federal agency that no sewage plant would be considered for location on plaintiffs' tract.
Plaintiffs assert, although the record does not verify the fact, that they applied for and received from the planning board in July 1958 final approval of "Section 1" of the tract, comprising 17 lots of slightly over 15,000 square feet each on Pleasant Hill Road, subject to the filing of a subdivision improvement performance bond guaranteeing
installation of required improvements. Defendants conceded at the oral argument that the minutes of the planning board show such action. Plaintiffs' brief asserts that they failed to file the necessary bond for "Section 1" and proceed with its development because the lending institution involved insisted they first develop the interior of the tract.
On October 16, 1958, at plaintiffs' request, the planning board extended the tentative conditional approval of the subdivision as a whole, beyond the original three-year expiration date specified by statute, to October 17, 1961. See N.J.S.A. 40:55-1.18 and the discussion under I, infra.
Plaintiffs eventually applied for final approval of "Section 2" of the tract, consisting of 25 lots plus the two upon which model homes had been erected, all of these being of about 15,000 square feet in area, and situated on high ground. On May 21, 1959 the board granted final approval to this portion of the subdivision subject to receipt of a subdivision improvement performance bond. It is asserted by plaintiffs and undenied by defendants, however, that the municipal engineer never designated the estimated improvement costs, as required by the subdivision ordinance of the township.
On June 7, 1959 the planning board wrote to plaintiffs that the final approval of "Section 2" was an error, since the 25 proposed lots failed to conform to the minimum lot area specifications of 30,000 square feet established by the zoning ordinance amendment of November 1956. That action precipitated the institution of the present litigation in July 1959. Notwithstanding its pendency, plaintiffs in August 1959 applied for approval of two minor subdivisions, each for three lots along the southerly side of Pleasant Hill Road, each lot complying with the 30,000 square foot requirement. Approval of these was granted on August 6 and August 17. The parties have not argued the effect, if any, of these minor subdivision approvals on the status of
either of the final approvals mentioned above, and we therefore express no opinion thereon.
Further references concerning sewage disposal are ...