Conford, Collester and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiffs brought two actions against the Borough of Deal and certain of its officials which seek (1) a judicial direction to the governing body of the borough to approve a map showing a proposed subdivision of a lot of land owned by plaintiffs so that the same may be acceptable for filing by the county recording officer of Monmouth County in accordance with the Map Filing Law, L. 1960, c. 141; N.J.S.A. 46:23-9.9 et seq.; and (2) a declaration that they are entitled to building permits for the erection of dwellings on each of two of the four lots shown on said map, for which application for permits was made and denied. Judge Simill entered judgment in the Law Division in favor of defendants in both actions, and plaintiffs appeal.
We heretofore reversed a summary judgment previously entered in the first action in favor of the plaintiffs. Kligman v. Lautman, 91 N.J. Super. 488 (App. Div. 1966).
In 1964 plaintiffs acquired a rectangular tract of land, apparently once the site of a residential mansion having a frontage of 300 feet on the easterly side of Ocean Avenue in Deal and extending 949 feet to a point in the Atlantic Ocean. At the ocean end of the property about 130 feet of the tract is east of the high water mark, and westerly thereof for about 60-75 feet additional the land comprises a beach leading to an embankment. As the property then stood it could legally have been divided and improved by only two homes fronting on Ocean Avenue. This is for the reason that there was no other street access and the local zoning ordinance requires: (a) a minimum lot frontage of 150 feet in the particular residential district, and (b) that no structure be erected except on a plot or lot which fronts on a public street dedicated to and accepted by the municipality. Plaintiffs desired to create four residential lots out of the parcel, and to that end caused to be prepared, after a revision necessitated
by other zoning requirements not now pertinent, a map, the subject of the present controversy, which subdivides the property as follows. A 50-foot street denominated "Taffy Lane," runs from Ocean Avenue easterly along the northerly boundary of the tract and culminates in a cul-de-sac about 450 feet from Ocean Avenue. Four building lots are laid out on the property, all of which but the westernmost lot have street access only through Taffy Lane. The westerly lot abuts both Ocean Avenue and Taffy Lane, but this case has been presented on the implicit assumption that it, too, would front on the latter thoroughfare.
Immediately north of and contiguous to the proposed street are three presently improved lots with residences fronting on Wallace Road, an existing public street parallel to Taffy Lane and lying 150 feet to the north thereof, which also culminates in a cul-de-sac. Thus, Taffy Lane would directly abut the rear yards of the homes on Wallace Road.
It is unnecessary here to detail all of the original dealings between plaintiffs and the municipality in the course of the former's efforts to obtain approval of this map, but it should be noted that on February 8, 1966 the municipality amended its ordinance which regulates the acceptance of dedicated streets to add two sections reading as follows:
"Section 4. That no road, avenue, street or highway shall be accepted for dedication by the Borough of Deal which is within two hundred fifty (250) feet of an accepted and existing street.
Section 5. No road, avenue, street or highway shall be accepted for dedication which does not have lots fronting on both sides of said street, avenue, road or highway."
This amendment was adopted shortly after summary judgment was entered against defendants in the first phase of this litigation, as noted above, and pending the appeal which resulted in the reversal thereof by this court. We held in the prior decision, from which no appeal was sought to be taken, that the case had to be considered on the basis of all local legislation then in existence, including the said amendment. See 91 N.J. Super., at p. 493.
Defendants' position below and on this appeal is that the Board of Commissioners of Deal cannot grant the approval of this map, which plaintiffs need to obtain its filing with the county recording officer under N.J.S.A. 46:23-9.14, because the borough engineer cannot properly sign the certificate made a requisite to approval by N.J.S.A. 46:23-9.11(n), nor the municipal clerk that called for by paragraph(p) of that section. Under the former the engineer must certify that the map conforms with the provisions of the act "and the municipal ordinances and requirements applicable thereto." Under the latter, if "the map shows streets, avenues, roads, lanes or alleys" the clerk must certify "that the municipal body has approved such streets, avenues," etc. Defendants point out that neither such certificate has been made and contend that neither can properly be executed because the governing body has not "approved" Taffy Lane as shown on the map and is justified in withholding its approval because that street would be incapable of dedication and acceptance as a public street under both sections 4 and 5 of the amended street ordinance. It would be disqualified under section 4 because it is less than 250 feet from Wallace Road, and under section 5 because it does not have lots fronting on its north side but only its south side. In view of this fact, the engineer's certification needed under paragraph(n) of N.J.S.A. 46:23-9.11 would have to be withheld for the added reason that the map does not "conform with" an applicable ordinance, i.e., the zoning ordinance, in that it shows building lots which do not front on an accepted public street and for which building permits could for that reason not be validly issued under section 12A of that ordinance.
Deal has no planning board and has not adopted the provisions of the Municipal Planning Act, L. 1953, c. 433 (N.J.S.A. 40:55-1.1 et seq., 1.4).
Before taking up plaintiffs' grounds of attack on the defendants' position in this matter, it should be noted that the Map Filing Law as it now stands is in substance a 1960 revision of a more thorough-going revision in 1953 of the
Old Map Law. See L. 1953, c. 358; R.S. 46:23-1 et seq. The history and purpose of the Old Map Law is discussed in Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N.J. 423, 433 et seq. (1958), which cites a prior judicial description of it as "hardly more than a conveyancing aid" although recognizing that it contained "rudimentary planning features with respect to the width and location of new streets and highways." Ibid. The Old Map Act provided that if the map submitted for municipal approval showed streets, avenues, roads, lanes or alleys, the governing body having control of streets in the area must first have "approved" such streets by resolution. R.S. 46:23-2(e). Like the present act, however, N.J.S.A. 46:23-9.13, such approval was declared not construable as an acceptance of any such street or as creating an obligation of maintenance thereof by the municipality. R.S. 46:23-8.
Plaintiffs have practically conceded in their brief that if the February 1966 street ordinance amendment is valid they have no right to municipal approval of the map as submitted since that ordinance would preclude acceptance of Taffy Lane by the municipality as a public street for reasons stated above. Reserving treatment of their argument as to invalidity of the ordinance, we direct our attention to their alternative request that the court consider the acceptability of the map as if it showed Taffy Lane as a private, not a public road, and their contention that, so regarded, the street ordinance would not be applicable and the map would then comply in all respects with the Map Filing Law. We point out at once that this position, even if accepted, would not be dispositive of the additional objection by the municipality that a private road would not ...