For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
Plaintiffs are the owners of a tract of land in the Borough of Deal, Monmouth County, which they desire to subdivide into residential building lots. The tract is so situated that a new road or way through it is required in order to furnish access to proposed interior lots from an existing public street. Plaintiffs' aim has been to obtain assurance that building permits would be issued for the lots; and they have pursued this by a melange of varying positions and actions.
Deal has never implemented the Municipal Planning Act (1953), N.J.S.A. 40:55-1.1 to 1.29, inclusive, and therefore has no planning board, master plan or subdivision regulation ordinance. Nor has it adopted an official map as authorized by the Official Map and Building Permit Act (1953), N.J.S.A. 40:55-1.30 to 1.42, inclusive. However, the borough does have certain ordinance provisions bearing on subdivision control which were applied at the municipal
level to deny plaintiffs any favorable action. The Law Division, following an intermediate trip to the Appellate Division, 91 N.J. Super. 488 (App. Div. 1966), upheld the municipality. The judgment was affirmed, 98 N.J. Super. 344 (App. Div. 1967), and plaintiffs now appeal to this court claiming that certain of the ordinance provisions are unconstitutional. R.R. 1:2-1(a). Additionally they contend that the municipality lacked power to enact them and, alternatively, that they are inapplicable in the present factual situation -- non-constitutional claims which we will also consider where, as here, there is a proper basis for an appeal as of right. See Klotz v. Lee, 21 N.J. 148, 155-156 (1956); cf. Frank v. Frank, 7 N.J. 225, 234-235 (1951); Sorokach v. Trusewich, 13 N.J. 363, 367-368 (1953); Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 386-388 (1963).
Running through the case is the fundamental question of the extent of municipal power to control land subdivision and development where the municipality has not seen fit to utilize the permissive provisions of the Planning Act. The subject has rarely come before our courts, although its importance is indicated by the fact that, surprisingly, as of January, 1965, 117 of the state's 568 municipalities have not adopted land subdivision regulation ordinances, according to the Municipal Planning Controls Survey made by the State Department of Conservation and Economic Development. About 20 of these are rural townships presumably not yet faced with development problems. Many of the remaining number, of which Deal is one, however, are not so fully developed as no longer to be concerned about land subdivision.
Deal is a high-class residential community bordering the Atlantic Ocean for about a mile and a half just south of the city of Long Branch. It has long been a place for summer mansions as well as substantial year-round residences. Its zoning ordinance permits no industry, and local business districts are few and small in size.
Ocean Avenue, a through highway connecting a number of ocean-front municipalities and heavily traveled, especially in the summer season, runs north and south through the borough, about 900 feet west of the high water line of the ocean. The entire area between the avenue and the ocean, as well as the land on the westerly side of the street to a depth of 200 feet, always has been zoned one-family residential, with only one dwelling per lot permitted regardless of the size of the lot. It is the highest grade residential district in the municipality, requiring a minimum lot frontage of 150 feet and a minimum depth of 125 feet. This district originally was largely occupied by palatial summer homes. The lots on the ocean side were extensive in frontage and ran in depth from the avenue to the high water line.
In late years, most of these ocean-front mansions have been torn down or otherwise destroyed. Many of the plots they occupied have been subdivided into smaller lots, upon which smaller houses have been erected, fronting on some 17 streets running easterly from Ocean Avenue, several of which are quite new. These streets terminate in cul-de sacs, or dead-end at the beach, except at the southerly end of the borough where a street parallel to Ocean Avenue connects four of them. While the record does not disclose the procedures and circumstances under which these subdivisions took place or under which the streets were constructed and opened, there is no suggestion that they were not approved in some fashion by the municipality or that the new streets are not public roads duly accepted and maintained by the borough.
In 1964 plaintiffs acquired one of the remaining large plots, comprising about six acres. It is relatively narrow, having a frontage of only 300 feet on Ocean Avenue, although it runs over 900 feet to the beach. The north boundary of the plot lies 150 feet south of the side line of Wallace Road, one of the new streets previously noted running east from Ocean Avenue toward the shore; and the south boundary lies approximately the same distance north of the side line of Clem Conover Road, another such street. Under the zoning ordinance
the tract comprises a single lot unless subdivided. By reason of the 150 foot frontage requirement, subdivision would be limited to two lots fronting on Ocean Avenue, each with depth to the ocean, unless a street or way is run easterly from the avenue through the tract, in which event three or more interior lots of acceptable size, depending upon the arrangement, could be laid out fronting on such a means of access. This is what plaintiffs have sought to accomplish.
The borough had two ordinances affecting such a subdivision when plaintiffs purchased the property. The first, adopted in 1953, "regulat[es] the dedication [ sic ] and acceptance of roads, avenues, streets and highways" ("the street ordinance") and provides in effect that no dedicated street shall be accepted by the governing body unless certain conditions have been complied with and compliance certified by the borough engineer. These conditions include approved grading, proper surface drainage, a width of 36 feet between curbs, paving with six inches of compact road gravel (upgraded by a 1967 amendment to additionally require two inch thick bituminous concrete pavement), construction of concrete curbs and sidewalks, installation of sanitary sewer lines with laterals and connections to abutting lots, and any additional requirements which the borough might see fit to impose.
The second pertinent provision was a zoning ordinance amendment enacted in 1956, designated as section 12A. This, which plaintiffs ultimately challenged, provides:
"Section 12A. No building or structure of any kind, type or description whatsoever shall be erected, converted or occupied in the Borough of Deal unless such building or structure is situate on a lot or plot which fronts on a public street, avenue or highway that has been duly dedicated to, and formally accepted by, the Borough of Deal."
The effect is that no building permit can issue unless the proposed structure fronts on an accepted (public) street, which, if a new street, by reason of the street ordinance requirements
just referred to, would have had to have been previously constructed in full compliance therewith by and at the expense of the landowner. It should be noted that section 12A, by requiring frontage on an accepted street, seems to go beyond the requirements of N.J.S.A. 40:55-1.39, contained in the Official Map and Building Permit Act (1953), which reads as follows:
"No permit for the erection of any building shall be issued unless the building lot abuts a street giving access to such proposed structure which has been duly placed on the official map; or, if there be no official map, unless such street is (a) an existing State, county or municipal street or highway, or (b) a street shown upon a plat approved by the governing body or planning board as provided in the Municipal Planning Act (1953), or in any act repealed thereby, or (c) a street on a plat duly filed in the office of the county recording officer prior to the passage of an ordinance under the Municipal Planning Act (1953) or any act repealed thereby which required prior approval of plats by the governing body or other authorized body. Before any such permit shall be issued, such street shall have been certified to be suitably improved to the satisfaction of the governing body, or such suitable improvement shall have been assured by means of a performance guarantee, in accordance with standards and specifications approved by the governing body, as adequate in respect to the public health, safety and general welfare for the special circumstances of the particular street."
Considering the street ordinance and section 12A together, the practical result is a scheme of municipal subdivision control pursued without implementation of the Planning Act. This scheme requires a landowner who, for building purposes, desires to subdivide a tract necessitating a new means of access to install at his own expense improvements akin to those which can be imposed through the procedures specified in the Planning Act (see N.J.S.A. 40:55-1.20 and 1.21), and thereafter to secure municipal acceptance of the new street. We will return later to the matter of whether a municipality which has not implemented the Planning Act has power to require the installation of such improvements and, further, whether section 1.39 of the Official Map and Building Permit Act applies therein.
The first step plaintiffs took toward accomplishing their aim was to submit a subdivision map of the tract to the municipal governing body for approval under the 1960 map filing law. N.J.S.A. 46:23-9.9 et seq. That statute, successor to earlier enactments of similar import (N.J.S.A. 46:23-1 to 11, inclusive, and N.J.S.A. 46:23-9.6 to 9.8, inclusive), and clearly applicable to municipalities which have not implemented the Planning Act, prescribes technical and other requirements that must be met before a map can be approved by the proper authority (here the governing body). Such approval is a prerequisite to the filing of it with the county recording officer. Among these requirements are certifications by municipal officials that the map conforms with all municipal ordinances, and that the streets, avenues, roads, lanes or alleys shown thereon have been "approved" by the governing body. N.J.S.A. 46:23-9.11(n) and (p). In this connection, note that the act provides that municipal approval of the map shall not be construed as acceptance of any road, street or highway shown thereon or as obligating the municipality to maintain or exercise jurisdiction over it. N.J.S.A. 46:23-9.13.
The act is entirely permissive in the sense that there is no requirement that a subdivision plat must be approved and filed before any land forming a part of the subdivision may be conveyed even where new streets are shown, in a municipality which has not adopted a subdivision ordinance pursuant to the Planning Act. (The contrary is true where the municipality has enacted such an ordinance, see N.J.S.A. 40:55-1.18 and 1.23). While the primary purpose of the statute is to upgrade and standardize filed maps, from an engineering standpoint, for the protection of purchasers of platted land, it is to be observed that some elementary land planning and control incidentally flows from the requirement of municipal approval of the map and the streets indicated thereon.
The map plaintiffs submitted for approval showed a new 50 foot wide street, Taffy Lane, running east from Ocean
Avenue for about 450 feet and terminating in a cul-de-sac. Its north side line was located 25 feet south of the north boundary of plaintiffs' tract, which was contiguous to three lots fronting on the south side of Wallace Road. Plaintiffs' map indicated three lots, each 25 feet deep, located between the new street and the north boundary. Plaintiffs said they proposed to convey these small parcels to the owners of the lots on the south side of Wallace Road, which would cause the rear lines of these lots to abut the north side of Taffy Lane. The remainder of the tract was divided into four properly sized lots -- three abutted the south side of Taffy Lane, and the fourth was located between the cul-de-sac and the high water line.
It is apparent that at this stage plaintiffs sought to accomplish their aim by complying with all pertinent ordinance provisions then in effect rather than by attacking the validity or applicability of any of them. They were willing to completely improve Taffy Lane in accordance with the street ordinance and obviously proposed to dedicate it. Further, they say that they offered to post a bond guaranteeing the installation of such improvements. Upon municipal approval of the street in connection with the approval of the map, they intended, as later events showed, to require the borough to accept the street. With that accomplished and the map on file, they would then be entitled, under section 12A of the zoning ordinance, to building permits for the four lots.
The borough governing body denied approval of the map on July 19, 1965 by a resolution which set forth no reason for the action. Subsequent depositions of the voting members of the governing body indicated that the denial was based on a dislike of the layout, including the fact that following transfer of the three undersized lots the rear line of the Wallace Road properties would abut the north side of the new street. Although not mentioned, it is clear that the submitted map did not have endorsed thereon the ...