Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.
Appellant and two others, all taxpayers, property owners and citizens of the Township of South Brunswick, brought an action in lieu of prerogative writs seeking to set aside the planning board's grant of tentative and final approval of Yenom Corporation's amended plan for a subdivision, and to enjoin the planning board and township committee from granting approval of that or similar plans. Plaintiffs also sought a declaration that South Brunswick's "cluster" zoning ordinance, No. 19-62, could not apply to Yenom's amended subdivision plan. Only appellant now challenges the judgment dismissing the complaint with prejudice.
The cluster zoning ordinance was adopted October 2, 1962. It provided that subdivision lots could, at the request of a
subdivider and in the discretion of the planning board, be reduced from the otherwise prevailing minimum lot sizes, provided that the subdivider donated to the township certain quantities of land for public uses, and provided that other requirements were met. This ordinance survived a direct constitutional attack in Chrinko v. So. Brunswick Tp. Planning Board , 77 N.J. Super. 594 (Law Div. 1963). Appellant was one of several plaintiffs in that action. Although those plaintiffs filed a notice of appeal and received an extension of time in which to file a brief and appendix, the appeal was eventually withdrawn.
Certain facts which occurred prior to the adoption of the cluster zoning ordinance must be outlined for a complete understanding of this case. On December 8, 1959 the planning board granted, subject to certain conditions not here relevant, tentative approval of a subdivision plan submitted by Yenom Corporation, a land developer, for a tract in South Brunswick known as "Brunswick Acres." This tract is located in an area designated as an R20 zone. The plan called for 526 building lots with a minimum lot size of 13,500 square feet. At this time the R20 zoning ordinance provided for minimum lot sizes of 20,000 square feet, with the exception that lots could be reduced to 13,500 square feet where sewer and water utilities were available.
The Township of South Brunswick has provided that its planning board shall be a "strong board," i.e. , decisions concerning the grant or denial of tentative and final approval of subdivision plans are in themselves final, and not mere recommendations requiring the approval of the governing body of the township. See N.J.S.A. 40:55-1.14. Nevertheless, a party aggrieved by action of the planning board may appeal to the governing body within ten days after the date of the action complained of, and the governing body may, after a hearing, affirm or reverse the action of the planning board. N.J.S.A. 40:55-1.19.
On May 27, 1960 the township committee amended the R20 zoning ordinance so as to eliminate the 13,500 square
foot exception and require that all lots within that zone have a minimum of 20,000 square feet.
On October 2, 1962 the township committee adopted the cluster zoning ordinance referred to above, which provided, inter alia , that if the tract to be subdivided were located in a zone requiring a minimum lot size of 20,000 square feet or less, the developer could reduce the minimum lot size requirement by 20% and the minimum frontage requirement by 10%, provided he "donate, exclusive of open drainage water courses, 20% of the tract to the Township"; if the tract to be subdivided were located in a zone which required a minimum lot size in excess of 20,000 square feet, the developer could reduce the minimum lot size requirement by 30% and the minimum frontage requirement by 20%, provided he "donate, exclusive of open drainage water courses, 30% of the tract to the Township." A condition of any such plan is that "the resulting net lot density of the area to be subdivided shall be no greater than the net lot density of the said area without regard to the provisions of [the] Ordinance." See Chrinko v. So. Brunswick Tp. Planning Board, supra , 77 N.J. Super. , at pp. 599-600.
N.J.S.A. 40:55-1.18 provides, in part, that where a land developer secures tentative approval of a subdivision plan, "the general terms and conditions upon which the tentative approval was granted will not be changed" for a period of three years from the date of the tentative approval. Minimum lot sizes provided for in a subdivision plan are among the "general terms and conditions" upon which tentative approval is granted. Hilton Acres v. Klein , 35 N.J. 570, 577-8 (1961). For three years from December 8, 1959, therefore, Yenom's 13,500 square foot minimum lot size was immunized from the May 27, 1960 zoning ordinance amendment which provided that the minimum lot size in the R20 zone must, without exception, be 20,000 square feet.
On November 27, 1962 Yenom submitted an amended plan for Brunswick Acres, calling for minimum lot sizes of 10,800 square feet, i.e. , the "guaranteed" minimum of 13,500 square
feet less the 20% reduction allowed by the cluster zoning ordinance. The planning board granted approval of this amended plan, subject to the fulfillment of certain conditions, effective December 3, 1962. Public notice of the board's resolution regarding this approval was published the following day. No appeal from this ...