Plaintiff, a taxpayer of the Town of Irvington, brings this action in lieu of prerogative writs to revoke five building permits issued by the town building superintendent to defendant Gifford Development Co., Inc., and to enjoin it from proceeding with construction thereunder. He further seeks a declaration that a certain proposed division of land of Gifford is a subdivision, and that the definition of a subdivision as contained in the Irvington land subdivision ordinance is null and void as being inconsistent with the Municipal Planning Act of 1953 (N.J.S.A. 40:55-1.1 et seq.). He further seeks to compel enforcement of the ordinance and statute referred to, as against Gifford.
Defendant Gifford Development Co., Inc. is the present owner of four tracts of land located between Berkeley Terrace, Grove Street, Nineteenth Avenue and Eastern Parkway. Roughly, they comprise a greater part of four city blocks, the intersecting streets being Brighton Terrace, Argyle Terrace and Tremont Terrace. The premises in question were originally owned by the Minnesota Mining and Manufacturing Company which had contracted to sell them to Carden Grove Corporation prior to the issuance of the building permits here under attack. Garden Grove subsequently assigned its rights to the defendant Gifford, who did not however actually take title until April 24, 1961.
On or about March 17, 1961 defendant Gifford submitted to the town planning board (and to the building inspector) a plan entitled "Map of Parkway Estates situated in Town of Irvington, Essex County, N.J.," providing for the subdivision of the tract in question into 115 lots on which it was proposed to erect 97 two-family and 18 seven-family
houses. Submitted with the plan was an "application for classification of sketch subdivision plat" and a fee of $30 which was required to accompany an application for a major subdivision. Since Gifford was only the purchaser under contract, an identical application was filed on April 4, 1961 by Minnesota Mining and Manufacturing Company, the owner.
A comparison of the proposed subdivision map with the tax map indicates that a portion of the tract in question had been divided into lots prior to 1929. The plat submitted generally indicated lots of a substantially greater size than those on the tax map. It was approved for zoning by the building superintendent and contained a blank form reciting that the subdivision was approved as being exempt, with room for the signature of the chairman of the board or mayor and the town clerk.
In the meantime, and prior to action by the planning board, defendant Gifford concluded that its proposed subdivision did not require the approval of the board. It thereupon made an application to the building superintendent, Edward G. Mrozek, for the necessary building permits to construct four two-family houses on Brighton Terrace and one seven-family house on Eastern Parkway. These were to be constructed on lots delineated on the "Map of Parkway Estates" referred to above. Applications for the building permits were filed on March 29 and on that date the superintendent of buildings reported that while the lots upon which it was proposed to construct the buildings were in accordance with the new map and differed from the official tax map in size, nevertheless they complied with the provisions of the "D" residential zone which were applicable, and involved no new streets or roads. Thereafter, on April 6, 1961, the corporation counsel, Mr. Krafte, rendered an opinion that the subdivision did not come within the jurisdiction of the planning board since, under the ordinance, it was not considered a subdivision, and that the building permits should be issued. They were
issued on the 14th day of April 1961 and construction was started on the two-family houses. One of these was well advanced when an application for an injunction pendente lite was made. The remaining two-family houses had hardly progressed beyond the foundation stage, while no work at all appears to have been done on the seven-family house.
In the meantime, Gifford's application to the planning board was still pending. On April 5, 1961, it had appealed through its attorney to the town commissioners from the "action or non-action" of the planning board on its application and requested a hearing before the governing body. It was informed that its appeal was premature. The planning board in the meantime had set the matter down for hearing on April 26, 1961, in accordance with the procedure provided in the land subdivision ordinance. Notice of the hearing was published in the local newspaper and Gifford was directed to give notice to the adjoining property owners. On the date set for hearing no representative of Gifford or of the owners appeared and the hearing was adjourned until May 1, 1961. On the adjourned date there was still no appearance on behalf of the applicants, and the board rejected the application. A letter to that effect was dispatched by the board to the town commissioners. The letter gave as reasons for the rejection that no officer or authorized representative of Gifford or of the owner had appeared before it to prosecute the matter, and that no proof of service of notice of hearing, as provided by the ordinance, had been submitted to it.
The proposed subdivision, on a portion of which it is proposed to construct the buildings authorized by the building permits under attack, has never been approved by the planning board or the town governing body, nor has it been certified to be exempt.
Briefly stated, it is the contention of defendant Town of Irvington that the proposed division is not a "subdivision" as defined in the ordinance. Gifford contends that the planning ordinance expressly "exempts" from the requirement
of the planning board's approval, subdivisions which involve no new streets where the resulting lots comply with the zoning ordinance. It is undisputed that the proposed subdivision does not involve new streets and that the resultant lots are in compliance with the town's zoning ordinance.
The plaintiff contends that the planning board had jurisdiction over the subdivision in question, and that in the absence of action by the planning board or by the municipal governing body exempting the subdivision or approving it, the building permits were improvidently issued and should be revoked. He urges that adoption of the contentions of the defendants would be repugnant to the Municipal Planning Act, N.J.S.A. 40:55-1.2, and would render meaningless and futile the provisions of the land subdivision ordinance in question.
The land subdivision ordinance was passed on the 28th day of June, 1955. Article II sets forth the purpose of the ordinance as follows:
"The purpose of this ordinance shall be to provide rules, regulations and standards to guide land subdivision in the Town of Irvington in order to promote the public health, safety, convenience and general welfare of the municipality. It shall be administered to insure the orderly growth and development, the conservation, protection ...