Rosenberg, J.c.c. (temporarily assigned).
[109 NJSuper Page 433] Plaintiff Sussex Woodlands, Inc. brings this action in lieu of prerogative writs to set aside section 9-8, article II of the "Sketch Plat Procedure" of the Revised Ordinances of West Milford Township, as amended, to compel defendant township to approve a minor subdivision, and for such other relief as the court may deem necessary and proper. Plaintiff is
presently before the court on a motion for summary judgment pursuant to R. 4:46. Defendant has filed a cross-motion for summary judgment to dismiss the complaint.
Plaintiff is the owner of property comprising approximately 2000 acres in West Milford Township. Within this tract is a piece of property known as Lot 3 in Block 247, fronting on Clinton Road and comprising 800.278 acres. Plaintiff, through its agent Fred Ferber, applied for a subdivision of this latter tract by which a lot comprising approximately three acres could be conveyed to one Frank Schoonyoung. A minor subdivision was approved by the West Milford Planning Board subject to plaintiff paying all taxes due and owing on the 800.278 acres. This action occurred in 1968. In August 1969 the planning board reapproved the subdivision application subject to the same condition that taxes be paid. The validity of this contingency is the sole issue in this matter.
The alleged right of the planning board to impose the tax payment contingency on the approval of minor subdivisions is based in section 9-8, Article II, "Sketch Plat Procedure," of the Revised Ordinances of West Milford Township. On December 15, 1967 the then township committee amended this section to provide that "no minor subdivision shall be approved unless the sketch plat complies with the plat details as outlined in Section 9-22 of this ordinance, and unless there is first filed with the Secretary of the Planning Board an Official Tax Search from the Collector of Taxes showing that all taxes are paid to date." (Emphasis added). The same requirement, namely, proof of taxes, is presently in effect regarding major subdivisions. Plaintiff claims that this amendment is ultra vires and that as it relates to his property the amendment constitutes an unconstitutional taking of property without due process of law.
It is a well established principle in our law that there is no inherent right of local self-government. Municipalities are but creatures of the State, "limited in their powers and
capable of exercising only those powers of government granted to them by the Legislature * * *." Wagner v. Newark , 24 N.J. 467, 474 (1957). See also, Fred v. Mayor, etc., Old Tappan , 10 N.J. 515, 518 (1952); Trenton v. State of New Jersey , 262 U.S. 182, 187, 43 S. Ct. 534, 67 L. Ed. 937, 942 (1923).
The Constitution of 1947 , Art. IV, § VII, par. 11, secures to municipalities not only those powers which are expressly granted to them but also "those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law." In addition the Constitution provides that all constitutional or statutory provisions concerning municipalities "shall be liberally construed in their favor." The State of New Jersey, then, in its relation to its municipalities, is what is commonly referred to as a legislative home rule state. Because of the constitutional provision providing for liberal construction of municipal powers, it would be more correct to categorize New Jersey as a liberal legislative home rule state. New Jersey is not, however, a pure or constitutional home rule state. The powers of its municipalities, while liberally construed, are not absolute. Municipal powers are still derived from the Legislature.
I find it necessary to develop this concept of municipal power because that is essentially the underlying issue of this case. That is, does a municipality in acting through its planning board have the power to impose a condition on a landowner that taxes be paid prior to the grant of subdivision approval?
In addition to the constitutionally protected right of liberal construction of municipal powers, the Municipal Planning Act, N.J.S.A. 40:55-1.1 to 1.29, specifically carries forward this idea of construction favorable to municipalities. N.J.S.A. 40:55-1.3 provides that the act "shall be construed most favorably to municipalities, its intention being to give all municipalities the fullest and
most complete powers possible concerning the subject ...