Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
[113 NJSuper Page 336] Plaintiffs, adjoining property owners, appeal from a judgment of the Law Division that defendants H. B. & F. Realty Co. and W. D. Snyder & Son are entitled to a permit to build a restaurant on their resubdivided
28,182-square-foot lot notwithstanding municipal upgrading of minimum lot sizes for the zone in question by revision of the zoning ordinance three months after final planning board and governing body approval of the resubdivision but three weeks prior to the application for the building permit. We are required to reevaluate, as against the particular fact-situation here presented, interpretations of the Municipal Planning Act (1953), particularly N.J.S.A. 40:55-1.18, set forth in Hilton Acres v. Klein , 64 N.J. Super. 281 (App. Div. 1960), mod. 35 N.J. 570 (1961); Levin v. Livingston Tp. , 35 N.J. 500 (1961); Pennyton Homes, Inc. v. Planning Bd. of Stanhope , 41 N.J. 578 (1964); and, particularly, United States Home & Develop. Corp. v. LaMura , 89 N.J. Super. 254 (App. Div. 1965).
The action of the Law Division was essentially an affirmance of the determination of the Springfield Board of Adjustment on remand, apparently acting as an appellate agency to review the denial of a building permit pursuant to N.J.S.A. 40:55-39(a), that defendants were entitled to the permit as a matter of law under the Planning Act. Defendants, however, had not made such a claim before the board, but were seeking a hardship variance from the upgraded minimum lot size and side-yard requirements of the revised zoning ordinance, pursuant to N.J.S.A. 40:55-39(c), and the matter was heard before the board solely on that theory. The legal issue on which the decision was ultimately based was posed, near the end of the hearing, by the board attorney, and the parties were requested to file memoranda on the point. The board made no finding or determination on the basic hardship-variance question brought before it by defendants' application (except as to the side-yard requirement).
The essential facts, some of which were elicited on and after argument before us, are as follows. Defendants own a 55,013-square-foot parcel of land situated on a center island in U.S. Highway 22 in Springfield. Prior to the subdivision approval there were a few small scattered structures
thereon, according to the filed map. There is commercial use of other parts of the island, including a carpeting store of plaintiffs. Traffic north of the island is one-way westbound and that to the south is one-way east-bound. The property abuts both lanes. We may take judicial notice that this highway, generally, and at the location in question, is one of the most heavily traveled and congested in the State. The tract was previously designated as Lots 3, 4 and 5, Block 115 on the township tax map, and was zoned G-B (General Business) under the 1955 zoning ordinance, subject to a minimum lot area of 7,500 square feet and width of 60 feet.
Some time in May 1968 defendants applied to the planning board for resubdivision of the tract so as to reduce the number of lots to two, although sale of neither was then contemplated but simply, according to the application, "commercial development." Lot 3 was to be decreased from 29,592 square feet to 26,830 and Lots 4 and 5 combined and increased from 25,420 square feet to 28,182.
The planning board on June 4, 1968 recommended to the township committee approval of the separate applications of defendants for preliminary and final approval of the resubdivision, and that body concurred June 11, 1968. (The Springfield ordinance provides for approval by the governing body of planning board action.) The only specific condition imposed by the board was that new Lot 4 (former 4 and 5) not be allowed egress to west-bound Route 22 in view of the limited frontage on that side of the lot (78.48 feet) (the frontage of the entire holding on that side was 228.48 feet). The minutes of the planning board hearing show a statement by the township engineer that "the existing utilities are adequate."
On September 24, 1968 the township committee adopted on final reading a revised zoning ordinance placing the property in question and other highway property in a new H-C (Highway Commercial) zone, with minimum lot area of 40,000 square feet, width of 100 feet and depth of 200 feet.
That revision stemmed from a comprehensive master plan adopted by the Springfield Planning Board on July 1, 1965 which proposed the establishment of a highway commercial district consisting of three center islands in Route 22 (including the subject property) and the northern border of that highway. The plan recommended that "Route 22 commercial development should be controlled" and mentioned, among other deleterious conditions along the highway, "dangerous traffic conditions" and "congestion." The planning board prepared an implementing first-draft revision of the zoning ordinance dated December 1966 calling for 40,000-sq.-ft. minimum lots for the proposed new highway commercial district. The board in May 1967 submitted a report to the mayor and governing body, including a rough draft revision of the ordinance with the same 40,000-sq.-ft. provision. There were meetings with various groups by the planning board and township committee to discuss the final draft of the ordinance, and it was introduced and passed on first reading May 28, 1968, and, as noted, on final reading on September 24, 1968 after publication on June 6, 1968 of the entire ordinance and of notice of its passage on first reading.
The minutes of the hearing of the resubdivision proceeding state that plaintiffs' attorney objected to the resubdivision on the ground "the lots would be undersized" -- a statement which plaintiffs say, without contradiction, referred specifically to the then pending revision of minimum lot sizes of which defendants must be deemed to have been aware in the light of the aforestated history.
On October 16, 1968 defendants applied to the building inspector for a permit to build a restaurant on new resubdivided lot 4, to cost $34,000, with provision for off-street parking for 46 cars. Defendants had previously negotiated a lease for operation of the restaurant to a national highway-restaurant chain. The application was denied by the building inspector on the grounds (a) location of the plot in the "Highway Commercial District" calling for a minimum lot
area of 40,000 sq. ft. ("under the Township of Springfield Schedule of Limitations, dated May, 1967 [ sic ] * * *") whereas the lot was only 28,182 sq. ft.; (b) failure ...