[120 NJSuper Page 167] This is an action in lieu of prerogative writs challenging the validity of the tentative approval of a proposed subdivision under the Municipal Planning Act, L. 1953, c. 433; N.J.S.A. 40:55-1.1 et seq. Plaintiffs are the owners of a lot and dwelling in the Borough of North Caldwell. Defendant Matarazzo is the present owner and
defendant Cypress is the contract purchaser of the proposed subdivision. Defendant Planning Board of North Caldwell initially approved the plat and this was affirmed on appeal by defendant, the Mayor and Council of the Borough of North Caldwell. The parties have moved for summary judgment.
The initial application was for the tentative approval of a plat denominated Wind Ridge South Section II. It envisaged the subdivision and construction of 43 single residence structures on the Matarazzo tract, constituting approximately 28 acres of undeveloped farm land. Plaintiffs' property lies at the lowest elevation of a large water shed or drainage area which includes the Matarazzo tract. Surface waters from this tract flow through a natural drainage ditch called Greenbrook which meanders from the Matarazzo farm on a winding course through public lands owned by the County of Essex, thence through lands located in the adjoining Township of Cedar Grove, returning to defendant borough and through a developed residential area known as "Tall Timbers" which includes plaintiffs' residence. Greenbrook cuts through plaintiffs' property.
When Tall Timbers was developed the water course over the lot now owned by plaintiffs was realigned. This lot was conveyed in 1955 to plaintiffs' predecessor in title. Plaintiffs apparently acquired their title in 1960. On the property adjacent to that of plaintiffs this water course has been enclosed in a concrete pipe or culvert so that waters passing through this pipe are discharged into the drainage channel in its natural and unimproved condition as it crosses plaintiffs' property. Over the years the discharge of these waters onto the Hamlin property has substantially widened and deepened the bed of this ditch and has caused extensive erosion of plaintiffs' land.
The planning board met on July 21, 1971 to consider the application by Cypress. The plaintiffs objected at that time to the subdivision for the reason that it could not be adequately drained and that it would greatly augment the discharge
of draining waters onto their property and exacerbate the erosion of their land. Pursuant to N.J.S.A. 40:55-1.18, the board on July 28, 1971 adopted a resolution granting tentative approval of the plat subject to certain modifications not pertinent to this litigation. The only reference in the proceedings to the overall drainage situation was contained in a letter dated April 20, 1971 from the borough engineer to the effect that Wind Ridge South Section II could be drained without any problem and that there will be no effect on Greenbrook. The factual basis for this conclusion was not adumbrated and there was no mention of any possible erosive or flooding effect on low-lying landowners as a result of the construction of the proposed subdivision. The board itself did not make any factual determinations and its resolution does not indicate whether it considered the adequacy or feasibility of drainage plans, or the impact of draining waters on other properties.
Pursuant to N.J.S.A. 40:55-1.19 the Hamlins appealed this action to the Mayor and Council of the Borough of North Caldwell and a hearing was held on August 10, 1971. A professional engineer, Alonzo Lawrence, testified for plaintiffs. He stated the Hamlins' property was at the bottom of a drainage area of some 165 acres and expressed the view that the construction of 43 homes will materially affect the erosion condition of the Hamlin property. The basis for this conclusion was that at the present time the rate of absorption of surface water on the Matarazzo farm was estimated at 70% but that with the completion of the proposed development this rate of absorption would be reduced to 6%; thus both the volume and velocity of the surface run-off will increase and the erosion along the banks of the drainage ditch through Hamlins' property will be aggravated. On cross-examination Lawrence conceded that if the drainage brook had been enclosed years ago, none of the property would have been lost to erosion. At the conclusion of his testimony the borough engineer stated that he
differed with Lawrence's assessment of the amount of the drainage and other factors but had no other comments at that time.
Upon completion of the hearing the mayor and council affirmed the recommendation of the planning board that the subject subdivision be approved and dismissed the appeal of the Hamlins. Included in their resolution were the following findings: (1) the borough engineer has reported that the drainage area of the premises in question is through the existing water course extending through the Ruffalo [ i.e. , Tall Timbers] development; (2) that a well defined and active water course, known as Greenbrook, has existed over said Hamlin's land, and that the watershed area of the Wind Ridge South Section II is naturally drained through Greenbrook; (3) said Hamlin is under a legal duty to protect his property along said water course; (4) the development of the property delineated on said map for one-family homes is a reasonable use of said premises; (5) the use of said water course for the purpose of drainage of said premises is a reasonable use of said water course.
In this action plaintiffs press the objections initially raised before the planning board. They contend in effect that the tentative subdivision approval is invalid because there was not considered or included therein as a general term or condition any provisions for drainage; and that the tract cannot be subdivided and developed without creating a serious problem of erosion. Defendants on the other hand argue that the proposed subdivision can be adequately drained and that any additional protective measures deemed requisite to a drainage system may be fashioned and required at the time final approval of this subdivision is sought. They further ...