For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
This is an appeal from a summary judgment of the Law Division directing the building inspector of the Borough of Cresskill to issue a building permit to plaintiff. During the pendency of defendant's appeal from that judgment to the Appellate Division, the appeal was removed to this Court on defendant's motion for certification. (R.R. 1:10-1A.)
On January 15, 1900, there was filed in the County Clerk's Office of Bergen County a map designated "Hitchcock Land Improvement Company's Map of Cresskill Park, Bergen County, New Jersey" (Hitchcock map). The said filing was accomplished under and by virtue of L. 1898, c. 232 (subsequently supplemented by R.S. 46:23-1 et seq.).
By deed dated June 4, 1937 plaintiff and her late husband acquired title as tenants by the entirety to lands known and designated as Lots 186, 187 and 188 on the Hitchcock map. These lots were each of the dimensions of 25 feet in width or street frontage, by 100 feet in depth. Thereafter and prior to the year 1952 the Loechners erected a dwelling house on said Lots 186, 187 and 188.
By deed dated January 16, 1952 Rudolph Loechner acquired title to two adjoining vacant lots, i.e., 189 and 190, with a total street frontage of 50 feet, from the Borough of Cresskill. These lots still are vacant, unimproved land but the general area is well built up. The sale of said lands was allegedly made pursuant to a municipal practice of selling undersized lots to adjoining owners for the purpose of combining the properties into one tract. However, no restrictions prohibiting the future use of the property for the erection of buildings were included in the deed. At that time, the Cresskill Zoning Ordinance required a minimum lot frontage of 75 feet in the zone in which these lands are located. Subsequently the frontage proviso was increased to the present 100 feet. Rudolph Loechner thereafter died and devised Lots 189 and 190 to his wife, the plaintiff herein. Plaintiff then entered into an agreement to sell Lots 189 and 190 to Anthony Villani. Villani, prior to conveyance to him, applied to the Board of Adjustment for a variance in order to erect a residence on said lots. He did not disclose the fact that the adjoining lots were in the same ownership. The variance was granted. Thereafter, application for a building permit was refused on the ground that the approval of the Planning Board was required since a subdivision was involved. Plaintiff applied to the Planning Board and subdivision approval was denied for the reason that if such were granted, an undersized building lot would be created in violation of the zoning ordinance. On appeal to the Mayor and Council the refusal was affirmed on the same grounds.
In an action in lieu of prerogative writ contesting the municipal action, plaintiff assumed the position that no subdivision
approval was required because her five lots were delineated on a map filed under the Old Map Act thereby rendering the Subdivision Act inapplicable. The Borough contended that: (1) Planning Board approval of plaintiff's contemplated conveyance of Lots 189 and 190 was required as that action constituted a subdivision, regardless of whether the lots had been delineated upon a map filed prior to the enactment of the Subdivision Act. There having been a denial of plaintiff's application to the Planning Board, no building permit for the lots should issue; and (2) The matter should be remanded to the Zoning Board for reconsideration of the variance because of the fact that the Zoning Board did not know that (a) the owner of Lots 189 and 190 was also the owner of contiguous lots, and (b) the clear understanding at the time of acquisition of title to Lots 189 and 190 was that they would be combined with the contiguous lots to form one tract of land. Both parties moved for summary judgment. Plaintiff prevailed, the court finding that (1) the variance was valid, and (2) no subdivision approval was required as all five contiguous lots owned by plaintiff including the two here involved appeared on a map under the Old Map Act.
The pivotal question is whether the sale of two contiguous lots out of a group of five lots, all in one ownership and delineated on a map filed under the Old Map Act, is a subdivision and whether Planning Board consent to the said conveyance of the two lots is required.
The acquisition of title by plaintiff to Lots 189 and 190 which were contiguous to Lots 186-188 created one parcel or tract of land consisting of five separate lots as shown on the Hitchcock map. Plaintiff's contemplated conveyance of Lots 189 and 190 thereafter constitutes a prospective subdivision and requires the advance approval of the Planning Board unless she prevails on her argument that the delineation of these two lots on a filed map precludes the application of the subdivision statute and/or ordinance.
N.J.S.A. 40:55-1.2 defines a subdivision ...