For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Dissenting in part -- Justice Haneman. The opinion of the court was delivered by Hall, J. Haneman, J. (dissenting).
Plaintiffs' application for approval of a subdivision of their land in the Borough of Mountainside was granted by the borough Planning Board, but only on condition that they reserve, and show on their subdivision plat, a right-of-way across the property for the future extension, as shown on the borough's master plan, of an existing street which now dead-ends at plaintiffs' sideline. Any building permit was directed to be denied until this was done. The decision of the board was affirmed by the municipal governing body on plaintiffs' appeal from the imposed condition, taken pursuant to N.J.S.A. 40:55-1.19. They then instituted this suit in lieu of prerogative writ in the Law Division challenging the municipal action, which resulted in a judgment for the defendants. 102 N.J. Super. 497 (1968). The Appellate Division affirmed, 104 N.J. Super. 456 (1969), "substantially for the reasons expressed" in the Law Division opinion, and we granted certification. 54 N.J. 111 (1969).
This is not the usual subdivision case involving large scale development of a sizable tract of raw land in single ownership. The situation here, shown by the various maps in evidence, is quite minuscule and factually rather simple, but involves legal considerations of importance.
Plaintiffs' land comprises a single parcel fronting 200 feet on the northerly side of U.S. Highway 22 and extending approximately 500 feet in depth. The width narrows to about 140 feet midway of the depth. A large, old dwelling is located about 200 feet back from the highway. The rear half of the premises is vacant land. It is typical of a number of properties in the west end of the borough fronting on the north side of the highway, see Wilson v. Mountainside, 42 N.J. 426, 438 (1964) -- old houses situated on separately
owned parcels of some size and varying depths, with the rear portions undeveloped and without access to existing streets.
Several years ago the borough Planning Board adopted a master plan pursuant to N.J.S.A. 40:55-1.10 to 1.12 of the Planning Act (1953), the map of which showed several additional proposed streets north of the highway in this part of the community. This area, beyond the highway parcels just mentioned, is hilly and substantially developed. The existing streets serving these developments are devious and patternless, with only circuitous connection to the through streets to the east which intersect or cross the state highway. It is apparent from the master plan map that the primary purpose of these proposed streets is to provide a street system for the developed northwestern area of the community which will, consistent with the terrain, more readily permit expeditious movement of local traffic and emergency and service vehicles and furnish more direct access to the principal streets of the borough. Since the proposed streets largely run through the rear of the various highway properties previously mentioned, their construction would also, quite incidentally perhaps, open up and give access to these portions for building development on an individual rather than a large scale basis. It is a fair inference that the routes were purposely selected to run through vacant land in order to reduce the expense of construction.
The principal one of these proposed streets would run roughly parallel to the highway, passing east and west through the rear half of plaintiffs' property and those of numerous other similar owners, eventually connect some 1000 feet or more to the east with an existing short street called Long Meadow, and then proceed further eastward across the rear of other similar properties to join near the highway a present street called Pembrook Road. It was designated as a "primary collector street" to collect traffic from numerous minor and secondary streets in the area, existing or proposed. As far as the record discloses, none
of this proposed street has been constructed or laid out except the small portion to which we are about to refer.
In 1966, after the adoption of the master plan, third parties obtained subdivision approval of another parcel of land fronting on the highway slightly to the west of plaintiffs' property. The subdivision comprised eight lots with access by a new 50 foot street, called Camelot Court, commencing on the northerly side of the highway, running northerly about 200 feet (this portion of the street was not shown on the master plan as a proposed street), then curving to the east and running parallel to the highway some 300 feet along the line of the previously mentioned proposed street shown on the master plan, and dead-ending in a temporary cul-de-sac at the westerly sideline of the rear half of plaintiffs' property. Camelot Court was so constructed at the sole expense of this subdivider as an improvement pursuant to N.J.S.A. 40:55-1.20 and -1.21 of the Planning Act and the borough subdivision ordinance. We assume that, as so constructed, it has been dedicated and accepted and is now part of the municipal street system, maintained by the borough. See Kligman v. Lautman, 53 N.J. 517, 536 (1969).
Plaintiffs' original subdivision application was to create the rear half of their property as a single separate lot approximately 250 feet by 140 feet. During the course of the proceeding before the Planning Board, they supplemented their application to request approval of a further division of the rear half into two lots, roughly on a northeast-southwest axis, which would be of about equal area but irregularly shaped. Each would "front" on the dead-end of Camelot Court for a distance of 25 feet. The record is not entirely clear whether the board and the governing body formally passed on this supplemental application as well, but we shall assume that they did in order to dispose of the entire matter since essentially the same problem is involved whether the subdivided portion is to comprise one lot or two. [55 NJ Page 462] As we indicated at the outset, the board approved the subdivision -- and all subsequent tribunals have concurred -- only on the condition that plaintiffs reserve a 50 foot right-of-way for the proposed eastward extension of Camelot Court through the property, as laid out on the master plan map. No requirement was imposed that plaintiffs improve and pave the reserved right-of-way. This demonstrates that everyone involved was proceeding on the implicit, but unexpressed, assumption that plaintiffs have the legal right to use the 50 foot dead-end of Camelot Court on their westerly sideline as abutting owners for access (a matter which we will discuss later).*fn1 What was obviously intended is that plaintiffs would be required to offer irrevocably to dedicate this 50 foot strip, which amounts to about 20% of the area of the rear half of the property, for construction of the proposed street sometime in the future, without compensation either for the loss of its use in the meantime or for its value at any time. This also means that they could utilize the remainder only in the light of that fact, i.e., they would not be able to build upon the strip and setback and other yard requirements would have to be computed and arranged with reference to it. Since the right-of-way would pass through the southern part, the practical effect would be that only the northern portion
would constitute a usable building lot and two lots could not be created.*fn2
We will first consider the matter on the hypothesis on which it has been presented throughout, i.e., that the proposed subdivision did not make reservation of the right-of-way necessary because there would be street access by use of the dead-end. The judicial affirmance of the municipal action was bottomed on defendants' contention, renewed here, that requiring the reservation of the right-of-way is authorized by the Planning Act, N.J.S.A. 40:55-1.20, as implemented by the borough's subdivision ordinance, even though the ...