Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Plaintiff appeals from a summary judgment granted to defendants and from a denial of its motion for summary judgment in this action in lieu of prerogative writ.
Plaintiff is the owner of a generally triangular 36.4-acre tract of land which is bounded by 4,555 feet of existing streets. In December 1967 it entered into a contract to sell a 10.9-acre rectangular portion of the tract. This portion was bounded by two of the streets a total of 1,350 feet. There were two existing structures on the 10.9-acre parcel, but the remaining 25.5 acres were vacant land. The purchaser planned to use the 10.9-acre parcel to establish a training center for executives, a use allowed in the applicable zone. There was no plan to develop the remaining 25.5 acres. An application was made to the planning board for a classification of the subdivision as "exempt." The sole purpose of the subdivision was to sell the 10.9-acre portion.
On January 8, 1968 the subdivision committee of the planning board purported to classify the subdivision as "exempt" (the terminology of the ordinance being "minor") but attached as one of three conditions the requirement that the plaintiff dedicate to the municipality land along the entire
street perimeter sufficient to increase the existing street right-of-way to the width established by the design standards contained in the township's subdivision ordinance. In the initial submission plaintiff had offered to make such dedication for the streets adjoining the 10.9-acre parcel. The area that was offered in the submission was 0.9 acres. The area required by the condition was 3.33 acres.
When notification of the action was received by letter dated January 8, 1968, the president of the plaintiff was out of the country. Immediately upon his return he filed an appeal with the township committee in accordance with N.J.S.A. 40:55-1.19 and the ordinance. That appeal, however, was not filed until January 19, 1968, one day after the ten-day appeal period had expired. The township committee refused to hear the appeal because it was out of time. The complaint in this action was filed February 21, 1968, contesting the validity of the condition and challenging the constitutionality of the provision of the subdivision ordinance requiring dedication of land to increase abutting streets to the design standard set in the subdivision ordinance.
On March 11, 1968 plaintiff offered to file a new subdivision plat complying with the objected-to condition, subject however to the final determination of the courts as to its validity. On April 9, 1968 the planning board rejected the offer and rescinded the classification by its committee of the proposed subdivision as minor.
The Law Division disposed of the matter by holding that the only genuine issue was the validity of the subdivision ordinance requirement of land dedication to increase the right of way of an abutting street. On the basis of dictum contained in Brazer v. Mountainside , 102 N.J. Super. 497 (Law Div. 1968), aff'd o.b. 104 N.J. Super. 456 (App. Div. 1969), the Law Division held here:
Initially, we point out that the township committee should not have held that the appeal was out of time. N.J.S.A. 40:55-1.19 provides that an appeal may be taken from an action of the planning board to the governing body "within 10 days after the date of the action of the planning board." Here the appeal was filed on the eleventh day, the delay being caused by the absence of the president of the plaintiff from the country. In view of the explanation submitted by the plaintiff, it was unreasonable for the township committee to dismiss the appeal which had been expeditiously filed and was but one day beyond the ten-day period. The N.J. Court Rules , 1969 (R. 1:3-3) provide that when service of a notice or paper is made by mail and a rule or court order allows the party served a period of time after the service thereof within which to take some action, three days shall be added to the period allowed. Since the township committee is acting in a quasi -judicial capacity in hearing an appeal from the planning board, we think that it should have applied R. 1:3-3 in determining whether the appeal was timely.
Did the subdivision committee of the planning board have authority to attach a condition to its classification?
Chapter 20 of the Princeton Township Code was adopted pursuant to N.J.S.A. 40:55-1.1 et seq. Section 20.5 of the Township Code provides for final action to be taken by the planning board. A minor subdivision is defined in section 20-1:
Any subdivision containing not more than two lots fronting on an existing street, not involving any new street or road or the extension of municipal facilities, not ...