[71 NJSuper Page 256] This is a suit to recover damages for an alleged breach of warranty in a contract for the sale of land. Under the contract executed June 14, 1954 the defendant, Meadow Homes, Inc. (hereafter Meadow), agreed to sell to Joseph S. Lenkowsky certain of the parcels of land as shown on the map entitled "Site Plan, Meadow View Estates, East Brunswick Township, Middlesex County, N.J., dated June 20, 1951" (hereafter Steuber map). Pursuant to express permission contained in the contract, Lenkowsky duly assigned his interest therein to the plaintiff Deerhurst Estates (hereafter Deerhurst), a corporation which he owns. The contract provides for the sale of 267 lots at $425 per
lot. The total subdivision area, as shown on the map, contains 359 lots allocated to 11 sections. A total of 92 lots was excepted from the contract (88 lots in Sections I and III and 4 lots in Sections V and VI) as they had evidently been built upon and sold by the seller. In addition, seller agreed to "deliver to Purchaser 69 Building Permits in the name of purchaser, or otherwise for erection of 69 dwellings on Sections IV and V according to plans" prepared by architect Steuber. The dimensions of each lot are substantially 60 feet wide and 110 feet deep.
The action sub judice was tried previously without a jury. The issues of liability and damages were determined in separate trials, resulting in a judgment for the plaintiff in the amount of $29,700. The court in deciding the question of liability found that the defendant had breached certain warranties of the contract (paragraphs 3(a) and (c), infra). In stating his conclusion therein that Meadow did not have the promised "tentative approval," the trial judge ruled as a matter of law that the parties' use of the phrase was a reference to N.J.S.A. 40:55-1.18 (50 N.J. Super. 140 (Law Div. 1958)). The Appellate Division reversed this holding and said in 64 N.J. Super. 134 (App. Div. 1960), at p. 152:
"Considering the use of the language in the instrument, and the purposes of the instrument as a whole, we cannot say that there exists no genuine issue of fact as to the meaning of the phrase, 'tentative approval.'"
Therefore, the cause has been remanded to this court "for a factual determination, based on the surrounding circumstances and on the relevant testimony concerning their negotiations, of the parties' respective understanding of the phrase, 'tentative approval,' at the time of its final insertion in section 3(b)." (64 N.J. Super., supra , at p. 153.)
Initially it is necessary for the court to review the history of the development of this land and the appropriate laws and regulations relating thereto.
At a meeting on December 13, 1950 the East Brunswick Township Planning Board approved the plat as shown by the "Preliminary Plot Plan of Prominski Tract" drawn by William H. Baker (hereafter Prominski map). It appears that Baker made duplicates of this map; however, only one was stamped "approved" by the board. Inspection of all the Prominski maps presented in evidence, and also the Steuber map, shows that they are identical as to plot layout and dimensions.
On application of Meadow the township committee and the planning board approved for filing the following sections on the dates mentioned:
Section I September 25, 1951
Section III April 8, 1952
Section IV November 25, 1952
Section V December 23, 1952.
East Brunswick Township on December 23, 1952 adopted at the second and final meeting a zoning ordinance by which it changed lot areas, dimension requirements, zone boundaries, etc., but the provisions of such ordinance did not apply to ...