Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal by plaintiffs from adverse judgments entered in the Law Division in two separate actions which were consolidated for the purpose of this appeal.
Plaintiffs Oliver D. Noble and Ella D. Noble, his wife, own a tract of land located in Mendham Township which is zoned for residential use. On October 1, 1958 they applied to the planning board for approval of the tract as a minor subdivision. They sought to divide the property into four lots, three of which would front on Shores Road. The fourth lot, an interior lot, was to be conveyed to an adjoining landowner after subdivision approval.
The land subdivision ordinance of Mendham Township then in effect classified subdivisions of real property as "major" and "minor" and were defined in article IV as follows:
"4. Minor Subdivision. Any subdivision containing not more than 5 lots fronting on an existing minor street, not involving any new street or the extension of municipal facilities and not adversely affecting the development of the remainder of the parcel or adjoining property and not in conflict with any provision or portion of the master plan, official map, zoning ordinance or this ordinance.
5. Major Subdivision. All subdivisions not classified as minor subdivisions."
The planning board rejected plaintiffs' application on the ground that Shores Road was not recognized as a township or public road. The board indicated it would reconsider the application if plaintiffs could submit proof that it was a public road.
At a meeting of the planning board on December 17, 1958 plaintiffs presented a road return for Shores Road recorded on February 23, 1803 in the office of the Morris County Clerk. Thereafter, at various conferences and meetings with the planning board and township committee, plaintiffs sought approval of their plan as a minor subdivision.
On June 15, 1960 the planning board adopted a resolution approving plaintiffs' plan as a minor subdivision but imposed two conditions, namely, (1) that a notation be placed on the plat map that no building permits would be issued for any lots thereon until Shores Road was suitably improved in accordance with the Official Map and Building Permit Act (N.J.S.A. 40:55-1.30 et seq.), and (2) that an adjoining lot owned by plaintiffs be included as part of the subdivision. Thereafter, the planning board resolution was approved by the township committee.
Plaintiffs brought an action in lieu of prerogative writs challenging the resolution. The Law Division held that the planning board had no right to impose the conditions. However, it refused to order that plaintiffs' application for approval of their plat as a minor subdivision be granted, and remanded the case to the planning board for a further hearing.
Plaintiffs appealed to this court. On June 10, 1963, while the appeal was pending, the township amended its subdivision
ordinance changing the definition of and requirements for approval of a plat as a minor subdivision. ...