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Battaglia v. Wayne Township Planning Board

Decided: December 12, 1967.

ALBERT J. BATTAGLIA, PLAINTIFF-RESPONDENT,
v.
WAYNE TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT



Kilkenny, Carton and Mehler. The opinion of the court was delivered by Mehler, J.s.c. (temporarily assigned).

Mehler

Wayne Township Planning Board appeals from a summary judgment ordering the issuance of a building permit to plaintiff free from conditions which he challenged as invalid. The facts are not in dispute.

Plaintiff purchased the land involved from Wayne Township at an auction held on December 30, 1963. He took title in March 1964, subject to a condition of sale which obliged him to construct a commercial or industrial building conforming to the township building code for a use permitted in the industrial zone, such construction to commence within three years from the date of closing title. The property consists of parts of six lots as set forth on the municipal tax map. It is bounded on the north by Oliver Street and on the south by Kurland Street (both being paper streets), on the west by the right of way of the Erie Railroad, and on the east by a right of way owned by North Jersey District Water Supply Commission. Access to the property is afforded only by Railroad Avenue, a street which terminates at the northwesterly corner of the property.

Before title closed the township, in compliance with the resolution of sale, introduced an ordinance vacating several paper streets within the premises in question. However, the proposed ordinance also reserved to the township a 50-foot strip of land over and along the westerly side of the

premises for the extension of Railroad Avenue to Kurland Street. This reservation was omitted from the ordinance as finally passed and from the deed to the premises after plaintiff objected to its inclusion on the ground that it had not been authorized by the resolution which directed the sale of the property.

In August 1965 plaintiff applied to the township building inspector for a permit to construct an industrial building on the property. The application was referred to the township planning board for site plan approval pursuant to article 15 (27-94) of the local zoning ordinance.

Authority to provide by ordinance for reference to a planning board of site plan approval is found in N.J.S.A. 40:55-1.13 which, after providing for reference to the board for review and recommendation of specific projects within the purview of an adopted master plan, necessitating the expenditure of public funds incidental to the location, character or extent of the projects, continues as follows:

"The governing body may by ordinance provide for the reference of any other matter or class of matters to the planning board before final action thereon by any municipal public body or municipal officer having final authority thereon, with or without the provision that final action thereon shall not be taken until the planning board has submitted its report, or until a specified period of time has elapsed without such report having been made."

See also Wilson v. Borough of Mountainside, 42 N.J. 426, 446 (1964); Newark Milk & Cream Co. v. Parsippany-Troy Hills Twp., 47 N.J. Super. 306, 332-333 (Law Div. 1957).

The planning board considered plaintiff's application from September 1965 to May 1966, when it approved it subject to a number of conditions, five of which plaintiff considered were so objectionable as to cause him to commence an action in lieu of prerogative writs to declare them invalid. They are as follows:

1. Oliver Street be improved to township specifications, the design of which is to be approved by ...


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