Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Defendants appeal from a judgment of the Law Division entered on cross-motions for summary judgment. Plaintiff's motion was granted; defendants' motion denied.
On March 30, 1959 the Planning Board of the Borough of Stanhope approved a preliminary development plat of Pennyton Homes and recommended to the mayor and council that it be approved. On the same day a resolution was adopted by the governing body granting tentative approval pursuant to N.J.S.A. 40:55-1.18.
The plat, as approved, displayed tentative plans for the subdivision of an 87-acre tract into 197 residential lots, upon which 196 houses would be erected. As is customary in large developments of this kind, plaintiff sought final approval of its plat in sections. Such approval was granted by the borough as to Sections 1 to 6, inclusive, on dates ranging from October 20, 1959 to January 26, 1961.
On November 27, 1961 plaintiff submitted plans for the final approval of the seventh and last section of the subdivision. This application provided that the paved portion of the rights-of-way, 50' in width, would be 30' wide. Provision for sidewalks was not included. An open drainage ditch or stream which ran through the tract was to be maintained in Section 7. The foregoing was in accordance with the preliminary plat initially approved, with the single exception that the ditch or stream was to be relocated in a position slightly different from that shown thereon.
On December 11, 1961 the plat was considered by the planning board, and on January 8, 1962 the application for
final approval was rejected by that body. By letter dated January 11, 1962 the board informed plaintiff of its decision, stating that it would "require the installation of a 34' wide pavement and 4' wide sidewalks in accordance with the amendment to the Stanhope subdivision ordinance adopted March 28, 1960, and also because we feel that in the interest of public safety we must require the stream to be enclosed in pipe."
Plaintiff appealed this determination to the mayor and council, and at the conclusion of a hearing on February 19, 1962 the governing body affirmed the planning board determination, substantially for the reasons expressed in its letter of January 11. Plaintiff thereupon brought a proceeding in lieu of prerogative writs to compel final approval of Section 7 without any additional improvements, and, as noted, the Law Division granted the requested relief on plaintiff's motion for summary judgment.
The Stanhope subdivision ordinance, enacted August 29, 1955, originally required that all streets should have a minimum right-of-way width of 40', a minimum graded width of 28', and a minimum paved width of 20'. It was amended on November 24, 1958 to increase these dimensions to a minimum right-of-way width of 50', and a minimum paved width of 30' between curbs. Neither of these ordinances contained a requirement that sidewalks be installed. The amendatory ordinance of March 28, 1960 provides in pertinent part:
"Article VII -- Improvements.
1. Prior to the granting of final approval the subdivider shall have installed or shall have furnished performance guarantees for the ...