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Highpoint Inc. v. Bloomfield Planning Board

Decided: October 11, 1963.


Giuliano, J.s.c.


Plaintiff filed a complaint in lieu of prerogative writ for review of certain action taken by the town council (council) and planning board (board) of the Town of Bloomfield. Plaintiff is the assignee of the Troy Development Corp. (Troy) which filed an application seeking to obtain approval of a proposed subdivision of land located in Bloomfield. The land in question is known as Lot 35 and parts of Lots 31, 33 and 35 on Map 39 Block 1082.

The board rejected the first plat submitted by Troy on January 9, 1962. A second application was made to the board on February 7, 1962. This plat, as submitted, provided for a division of the tract into 13 lots and a dead-end street, Jay Drive. A turn-around of 50 feet, with a radius at the center of Jay Drive, was proposed. On October 9, 1962 the board refused to approve the plat as submitted but classified the subdivision as major and indicated that the plan would be approved if the turn-around was made tangent to the right side of Jay Drive and was partially within Lots Nos. 100 and 101 of the proposed subdivision. The board further provided that when Jay Drive was made a through street, the portion of Lots 100 and 101 taken by the turn-around would revert to the owners of the respective lots. Pursuant to the procedure prescribed by statute and the ordinance, Troy appealed this action of the board to the council and at the same time petitioned the board to reconsider its action of October 9, 1962.

Acting under what it termed a remand by the council for clarification of its October 9, 1962 action, the board on November

20, 1962 considered an alternative proposal submitted by the developer. The alternative plan, as submitted, provided for a temporary turn-around to be laid on a radius of 25 feet at the end of Jay Drive, to be located wholly within the right of way of the proposed street. The new proposal was classified as a major subdivision and the board voted tentative approval. No further action was taken by the developer.

The council, composed of several new members as a result of the November election, held a meeting on January 12, 1963 at which it declined to authorize execution of the development agreement with the developer and remanded the matter to the board for further consideration. The board, also having several new members, met on February 12, 1963. At this meeting the chairman inquired as to whether there was a motion to "re-affirm" the action of the board taken on November 20, 1962. No motion was made. Thereafter, a motion was made and carried to "re-affirm" the action of the board taken at the October 9, 1962 meeting.

Plaintiff now urges that the action of the board on November 20, 1962 be declared effective and controlling, and that the subsequent action of the council on January 12, 1963, and the board on February 12, 1963, be declared void.

The decision here primarily rests upon an interpretation of the Municipal Planning Act of 1953, N.J.S.A. 40:55-1 et seq. , from which municipalities derive the authority to create planning boards. The rules which the courts are to follow in deciding such questions of interpretation are clearly set out in Levin v. Livingston Twp. , 35 N.J. 500 (1961) and are as follows:

"* * * 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." (35 N.J. , at p. 507)

With this rule of interpretation as a guide the statutory authority in question will be set out. Municipalities of New Jersey were authorized under the Municipal Planning Act of 1953 to adopt a planning board which would oversee the orderly development of the municipality through regulation of land subdivision. Power to adopt this method of control is not mandatory but permissive, and exercisable by municipal ordinance. N.J.S.A. 40:55-1.3; Kotlarich v. Mayor and Council of Borough of Ramsey , 51 N.J. Super. 520 (App. Div. 1958). Control of land subdivision is secured by requiring municipal approval of subdivisions the municipality may consider in need of regulation. Municipal approval may be provided in one of two ways, N.J.S.A. 40:55-1.14. One method is to authorize the board as a referral agency whose function is to refer meritorious plans to the governing body for the required approval. The second method is to give the board authority to act in lieu of the governing body in granting or not granting approval of proposed subdivisions. The former type of board is known as a "weak" board and the latter as a "strong" board. Cunningham, "Control of Land Use in New Jersey under the 1953 Planning Statutes," 15 Rutgers L. Rev. 1 (1960).

The Town of Bloomfield, by ordinance, adopted the strong board, giving it full authority to pass on the merits of ...

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