For affirmance on first count, reversal on second count and reversal and remandment on third count -- Chief Justice Weintraub, and Justices Francis, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Hall, J.
[35 NJ Page 504] This case involves a narrow, but deeply rooted, aspect of land subdivision regulation by a municipality. Specifically the question is: When, in the course of the planning and construction of a development, do the municipality's specifications for street pavement which it requires the developer to install as an improvement become fixed so that it may not thereafter upgrade them?
Plaintiffs were engaged as land owners in residential subdivision development in the Township of Livingston. Their operations contemplated the laying out of lots and streets and the installation of utilities and other improvements on previously unimproved land, the construction of homes on the lots, and the ultimate sale thereof to individual purchasers. We are concerned with three sections of their developments which were in various stages of municipal approval and physical construction when the township, on March 21, 1960, amended its street ordinance to require thereafter pavement of bituminous concrete instead of the previously specified penetration macadam. The change expressly did not apply to streets in the course of construction if the curbs had been installed and the base course laid at the time of adoption of the amendment.
Plaintiffs then brought this action against the township seeking an adjudication that the amendment could not validly apply to the sections in question. An immutable right was claimed to install streets paved with penetration macadam by reason of prior municipal approval action under the Municipal Planning Act of 1953 (N.J.S.A. 40:55-1.1 et seq., L. 1953, c. 433) and the local subdivision regulation ordinance adopted pursuant thereto on June 21, 1954. The factual situation concerning the status of approval is different as to each section and each was the subject of a separate count in the complaint. The first count related to those sections of the Cherry Hill development as to which only tentative approval had been granted, the second to Section 2 of the same development which had received final approval, and the third to Collins Estates, Section 1B, where the situation is unclear.
The Law Division held, 62 N.J. Super. 395 (1960), that the amendment to the street ordinance was properly applicable to each of the three sections and denied plaintiffs any relief. Their appeal was certified on our own motion while pending in the Appellate Division.
The precise problem must necessarily be considered in the light of the whole scheme of subdivision regulation prescribed in the state enabling act and its implementation in Livingston by local ordinance, at least to the extent that such a panoramic view has pertinence to the current issue.
Subdivision control, like zoning, is a tool of overall community planning. They are "closely related * * * in that both are preventive measures intended to avert community blight and deterioration by requiring that new development proceed in defined ways and according to prescribed standards. Zoning relates to the type of building development which can take place on the land; subdivision control relates to the way in which the land is divided and made ready for building development." Cunningham, "Control of Land Use in New Jersey Under The 1953 Planning Statutes," 15 Rutgers L. Rev. 1, 45-46, n. 175 (1960).
Some of the major evils regulation is designed to prevent are succinctly stated by Professor Haar in his recent book, Land-Use Planning (1959):
"Subdivisions are entered into for profit. They occur where the growth of population, or some other indicium of land demand, indicates a sufficiently profitable market. Sometimes they are carried out by the original owners of the land, more frequently by professionals engaged in the business of real estate development. More is involved than a bargain between vendor and purchaser. For subdividers are dealing in the permanent assets of the community. The subdivider does not merely sell land; in all but the smallest developments, he has to lay out roads and provide access to the lots. And in so doing he is determining the main outlines and character of the community. Thus the street system and the arrangement of lots of the growing cities are in effect planned, designed, and constructed piecemeal by a number of private real estate developers. Often these independent operations are poorly designed, uncoordinated both with each other and with the layout of the central city, and totally inadequate to cope with the consequent load of automobile and truck traffic.
Farsighted developers were and are aware of these dangers. But many subdivisions are constructed without regard to the convenience or well-being of the resulting community, and in course of time
sink inevitably into the status of a slum; the bad location of new subdivisions 'where street systems and housing were not conformed to topography' is listed as the 'first slum-inducing factor.'" (at pp. 347-349)
As this court said in Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N.J. 423, 435 (1958): "The * * * [state planning] act was designed to afford municipalities desiring the advantages of its provisions to enact comprehensive regulatory standards which would facilitate sound and orderly future municipal growth along preconceived lines, in short a planned community growth." See also Mansfield & Swett, Inc. v. Town of West Orange, 120 N.J.L. 145, 150-151 (Sup. Ct. 1938); cf. Kozesnik v. Montgomery Township, 24 N.J. 154, 165 (1957).
The statutory provisions (N.J.S.A. 40:55-1.14 to 1.29) authorizing municipal regulation of subdivision (i.e., "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," N.J.S.A. 40:55-1.2) are to be construed most favorably to municipalities, in line with the expressed legislative intent to grant "the fullest and most complete powers possible." N.J.S.A. 40:55-1.3. Questions of interpretation and construction must therefore be resolved in favor of governmental authority, when reasonably possible to do so, for the maximum protection of the primary public interest, as well as incidentally for the benefit of the individuals who become the ultimate owners of the subdivider's final product. This does not mean that the legitimate interests of the developer are to be completely forgotten. He is entitled to substantive and procedural fairness, having in mind the primacy of the public interest and the principal objects of regulation. And, since the statute spells out in considerable detail the scope, manner and procedure of permissible local regulation, the implementary provisions of the ordinance must be confined within the framework and
reasonable intendment thereof. The municipality may not, on the one hand, go beyond the fair limitations of the act nor may it, on the other, validly impose lesser or contrary requirements than are minimally called for.
Subdivision regulation is hinged upon the requirement of approval, either by the local planning board alone or by the governing body on favorable referral from the board, of all plats (the map of a subdivision) before they may be filed with the county recording officer. N.J.S.A. 40:55-1.14. Kotlarich v. Ramsey, 51 N.J. Super. 520, 526-527 (App. Div. 1958). The Livingston ordinance adopts the option of reposing final authority in the township committee with the board serving as a reporting and referring agency -- the so-called "weak" planning board set-up. Regulation is provided with several kinds of teeth to make it effective. The statute specifies that no plat shall be accepted for filing in the county record office until (final) approval has been given, N.J.S.A. 40:55-1.17, requires the filing of an approved plat within 90 days on pain of loss of (final) approval, N.J.S.A. 40:55-1.18, and provides that any person who transfers, sells or agrees to sell any land which forms part of a subdivision before (final) approval thereof shall be subject to fine or imprisonment, N.J.S.A. 40:55-1.23. In addition, the last cited section gives the municipality the right to obtain injunctive relief and to set aside such a conveyance in certain circumstances. The upshot is that developers must obtain final approval as a condition precedent to the valid sale, or agreement to sell, by any method, of any lands within any subdivision, unless the subdivision is exempt therefrom under the terms of the enabling act and the ordinance. Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, supra (28 N.J., at pp. 433-434).
The requirements for plat approval provide the means and character of regulation. Under the statute, these fall into two distinct categories, with different attributes. The first, which is ...