Gaulkin, Labrecque and Brown.
Defendants Levitin and Minetto appeal from an interlocutory judgment of the Law Division remanding to the Planning Board of the Borough of Tenafly their application for a variance to permit a redivision of their properties. Our leave to appeal was restricted to the procedural question involved.
Defendant Levitin is the owner of a lot containing approximately 65,000 square feet whose only access to Leroy Street, the nearest public highway, is through a corridor 16 feet wide and 175 feet long, having a grade in excess of 20%. Defendant Minetto owns the adjacent lot which has a total area of approximately 6,250 square feet, but has access over Victoria Lane, a dedicated way which has been neither accepted nor vacated by the municipality. It is some 50 feet wide, and the central portion, some 16 feet in width, has been paved. The paving appears to have been done at the expense of one or more of the adjacent property owners, and there is no contention that it conforms to the paving specifications of the borough.
Levitin and Minetto made joint application to the planning board to redraw the boundaries of their properties so as to create two lots, approximately equal in size. The properties were located in a zone which required a minimum lot size of 40,000 square feet, whereas each proposed lot was to be 35,835 square feet in area. Because the proposed lots would be undersized, their application to the planning board for the redivision was denied. A municipal planning board is bound by the express provisions of the local zoning ordinance and is precluded from approving subdivisions which are violative of such provisions. N.J.S.A. 40:55-1.15; Popular Refreshments, Inc. v. Fuller's Milk Bar and Recreation Center, Inc., 85 N.J. Super. 528 (App. Div. 1964), certification denied 44 N.J. 409 (1965); see Smilow v. City of Orange Planning Board, 58 N.J. Super. 108 (App. Div. 1959); Cunningham, "Control of Land Use in New Jersey under the 1953 Planning Statutes," 15 Rutgers L. Rev. 1, 46-47 (1960).
Levitin and Minetto thereupon applied to the board of adjustment for a variance to permit the redivision on the basis of the undersized lots, and for other relief. The board, after hearing, made specific findings of fact, determined that the negative criteria required by the statute had been met, and granted the variance upon the following conditions:
"1. That the driveway be maintained to provide access to whatever dwelling may be erected on the westerly lot.
2. That any dwelling or dwellings which may receive access from Victoria Lane have a driveway or other access area improved in a manner so as to compare with the existing condition of Victoria Lane.
3. That no building permit be issued for the erection of any house on either parcel until the final plans and location have been approved by the Planning Board of the Borough of Tenafly, which Board should take into account the preservation of the natural area, the drainage conditions for the subject tract and the suitability of access of the westerly parcel to Victoria Lane.
BE IT FURTHER RESOLVED that if compliance is had with the above conditions and building permit or permits is or are approved by the Planning Board, then the Building Inspector is directed to issue same in accordance with plans and specifications as approved, this Resolution serving to grant a variance from the provisions of N.J.S.A. 40:55-1.39 in accordance with the power vested in the Board of Adjustment by N.J.S.A. 40:55-1.40 in that it is the opinion of this Board that Victoria Lane is suitably improved in order that adequate access of fire and other emergency vehicles to the subject properties may be had."
Plaintiffs, property owners who had appeared in opposition, thereupon filed the present action in lieu of prerogative writ to review the action of the board.*fn1
The Law Division judge, conceiving that prior favorable action by the planning board was a prerequisite to the allowance of the variance by the board of adjustment, remanded the ...