For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
This action in lieu of prerogative writs tests the constitutionality of N.J.S.A. 40:55-1.32 and N.J.S.A. 40:55-1.38, a part of what is commonly known as the Official Map Act, as well as an ordinance adopted by the Common Council of Englewood pursuant thereto. The Law Division found the Act unconstitutional and the defendant appealed to the Appellate Division. While pending there we certified the case on motion of both parties. R.R. 1:10-1A.
In April of 1967, plaintiff, who was and is the owner of some sixteen acres situate in Englewood, applied for approval of its plans to subdivide the property in order to construct single family dwellings. While consideration of the application was pending, the Common Council of Englewood adopted what is Ordinance No. 1724 pursuant to N.J.S.A. 40:55-1.32 and N.J.S.A. 40:55-1.34 which placed the land on the Official Map of the City and designated it land reserved for use as a park.
N.J.S.A. 40:55-1.32 provides that a municipality may designate land uses upon an official map and that
"* * * Upon the application for approval of a plat, the municipality may reserve for future public use the location and extent of public parks and playgrounds shown on the official map, or any part thereof and within the area of said plat for a period of one year after the approval of the final plat or within such further time as agreed to by the applying party. Unless within such one year period or extension thereof the municipality shall have entered into a contract to purchase, or instituted condemnation proceedings, for said park or playground according to law, such applying party shall not be bound to observe the reservation of such public parks or playgrounds. During such period of one year or any extension thereof the applicant for the plat approval, and his assigns and successors in interest, may use the area so reserved for any purpose other than the location of buildings or improvements thereon, except as provided in [ N.J.S.A. 40:55-1.38]."
Read in connection with N.J.S.A. 40:55-1.32, the practical effect of the ordinance was to "freeze", for a one year period, any attempt to develop the designated land.
On May 23, 1967 plaintiff's subdivision plan was granted initial approval. At the same time plaintiff was notified by letter that the land in question had been reserved for park land acquisition. Subsequently, the resolution granting final approval provided
"The approval granted by this Resolution does not in any way obligate the City of Englewood, and the applicant is acting solely at its own peril since the applicant is on notice that this property has been reserved by the City of Englewood on the official map under the Green Acres Program and the applicable Statutes of the State of New Jersey."
Eight days before final approval was granted, plaintiff brought this suit to challenge the statutory authority by which it had been denied the right to develop its lands for a period of one year. Such a denial it argues constitutes a taking of property without compensation as the statute makes no provision for payment and therefore violates both the Fourteenth Amendment to the Federal Constitution and Art.
I, para. 20 of the State Constitution. The defendant denies that the statute violates the constitutional prohibitions and further argues that plaintiff is prevented from bringing the suit, since it has not availed itself of the relief provisions of the Act (N.J.S.A. 40:55-1.38) which provides:
"For the purpose of preserving the integrity of the official map of a municipality, no permit shall be issued for any building in the bed of any street or drainage right of way shown on the official map, or on a plat filed pursuant to the Municipal Planning Act (1953) before adoption of the official map, except as herein provided. Whenever one or more parcels of land upon which is located the bed of such a mapped street or drainage right of way, or any park or playground location reserved pursuant to [ N.J.S.A. 40:55-1.32] hereof, cannot yield a reasonable return to the owner unless a building permit be granted, the board of adjustment, in any municipality which has established such a board, may, in a specific case by the vote of a majority of its members, grant a permit for a building in the bed of such mapped street or drainage right of way or within such reserved location of a public park or playground, which will as little as practicable increase the cost of opening such street, or tend to cause a minimum change of the official map, and the board shall impose reasonable requirements as a condition of granting the permit so as to promote ...