This is an action in lieu of prerogative writs to set aside a decision of the defendant Planning Board of the Borough of Madison denying preliminary approval of plaintiff's major subdivision and for an order directing the planning board to grant such approval.
The facts in this matter are not in dispute. The following admissions are made by the parties:
(a) At the regular meeting of the planning board held on November 1, 1965, plaintiff submitted for purpose of classification as a "major subdivision" a sketch plat of the subject premises showing a proposed subdivision of the premises into 11 building lots in conformity with the zoning ordinance and regulations of the Borough of Madison. By unanimous adoption of a resolution, the planning board classified the proposed subdivision as a "major subdivision."
(b) Plaintiff thereafter filed with the planning board timely application for preliminary approval of the major subdivision of the subject premises into 11 lots as set forth on map entitled "John Marshall Village -- Preliminary Plat Lot 15, Block 14 Tax Sheet of Borough of Madison, Morris County, N.J.," dated November 15, 1965 and prepared by Winston & Keller, Inc., civil engineers and surveyors, which map was filed with the planning board as part of the plaintiff's application.
(c) The preliminary plat complies in all respects with the requirement of the ordinances of the borough and the rules and regulations of the planning board for the granting of preliminary approval of the proposed major subdivision.
The planning board at the meeting when the subdivision proposal was introduced and classified as a "major subdivision" expressed some concern that proposed New Jersey State Highway Route 24 at some time in the future might require the taking of a portion of the property by condemnation or otherwise. The board feared that notwithstanding the fact that the lots in the subdivision were of adequate size, future action by the State Highway Department might cause some of the lots to be reduced to a degree where they would not conform to the zoning ordinance requirements. The board asked the subdivider to secure a disclosure from the New Jersey State Highway Department as to whether it had established a definite and specific right-of-way and whether this right-of-way, if so established, with definiteness might affect the property, or a portion thereof, in question. Plaintiff through its engineer sought to comply as best it could with the wishes of the board.
Shortly thereafter Herbert Winston of Winston & Kelly, Inc., the engineers of plaintiff, communicated with representatives of the New Jersey State Highway Department who, in turn, referred him to a representative of the consulting engineers employed by the Department on the project known as Route 24. A conglomerate map (Exh. D-5), two sections having been taped together to show the area in question, was given to Winston. It is important to note that the map (purported to be the most recent map) is dated March 10, 1964. This map bears stamps in large red letters in a number of places indicating that it is a "preliminary map."
A public hearing on plaintiff's application for preliminary approval was held on December 6, 1965. The testimony indicates that this map, marked in evidence before the planning board, is the product of the consulting engineers to the State Highway Department and their preliminary recommendations
to the Department. The consulting engineers may make recommendations, but the Department may accept or reject them, or make changes at will. The chairman of the planning board acknowledged that any statement made or recommendation forwarded to the Highway Department by its consulting engineers was not binding upon the Department. The chairman pensively remarked that "the Borough of Madison would be very happy as would Florham Park and the Borough of Chatham if they knew exactly where the State Highway Department intended to put their road." Apparently, many of the communities through which State Highway Route 24 might pass had no more success than did Winston in getting a definitive answer from the Department.
At the public hearing plaintiff produced testimony in support of its application. No testimony was adduced in opposition. No one appeared on behalf of the Highway Department, notwithstanding that ...