Beetel, J.c.c., Temporarily Assigned.
[143 NJSuper Page 296] This is an action in lieu of prerogative writs wherein plaintiffs seek to set aside the decision of the Alexandria Township Committee (committee) affirming the decision of the Alexandria Township Planning Board (planning board) denying plaintiffs' request for subdivision approval. Plaintiffs seek an order directing these bodies to give full force and effect to a variance granted by the Alexandria Township Board of Adjustment (zoning board) during the course of plaintiffs' attempt to
gain subdivision approval. Suit was filed on May 23, 1975; the pretrial was held on February 20, 1976; and arguments, based on the record before the municipal bodies, were heard on May 11, 1976, at which time, decision was reserved.
The primary issue involves what effect, if any, the zoning board's variance should have upon the grant or denial of subdivision approval by the planning board and the committee.
On May 5, 1943, before the enactment of land use regulations by Alexandria Township plaintiffs acquired approximately 58 acres of vacant land currently identified on the township tax map as Lot 58, Block 10. In 1964 plaintiffs obtained subdivision approval for a three-acre tract which they sold to Isaac Schneider, who built a residential dwelling thereon. On June 22, 1974 plaintiffs entered into a written contract to sell the southwesterly 11.38 acres of the remaining 55-acre tract to Salvatore and Phyllis DeSabatino contingent upon the issuance of a building permit for the future construction of a residential dwelling on this new lot. The sale was brokered by Jerome Malaker, an employee of the Karlton Realty Company.
Alexandria Township is a predominantly rural municipality. Its current zoning ordinances place plaintiffs' still vacant lot in a residential zone requiring an area of 1 1/2 acres with 200' of frontage along a public road. Plaintiffs' lot undisputedly does not front on a public road, but it is bounded by a private road or driftway. The entire lot has 1,503' of frontage on this roadway, and the proposed subdivision has 609.65' frontage.
In August 1974 plaintiffs appeared at the regular meeting of the planning board and informally explained to this body their plan to seek subdivision approval for the pending sale. In an equally informal manner plaintiffs were told of the procedural steps that would be required and the likelihood that their application would be denied because the parcel did not front on a public road. Plaintiffs assert that they were also told that once their application was denied by
the planning board, they could then petition the zoning board for a variance.
In September 1974 plaintiffs filed their subdivision application and on October 2, 1974 Jerome Malaker, the broker, appeared before the planning board to make a formal request for subdivision approval. Plaintiffs were abroad at this time and now claim that Malaker did not represent them, but rather the buyers. In any event, the planning board denied the application. A week later, October 9, 1974, Malaker appeared before the township committee. He made no formal appeal at this time but apparently appeared to preserve whatever rights the parties may have had to appeal. The committee took no definitive action and merely ordered its clerk to obtain the minutes and the resolution of the planning board pertinent to the matter.
Upon their return from abroad plaintiffs retained legal counsel and applied to the zoning board for a variance from the requirement that a lot abut a public road. On December 9, 1974 the zoning board held public hearings on this application and conducted site inspection of the property on December 14, 1974. At its meeting on December 16, 1974 the zoning board adopted a resolution, by a 3-2 vote, approving plaintiffs' application for a variance. The resolution contained findings of fact directed primarily to the character of the private road or driftway bordering plaintiffs' property. The zoning board found that the roadway had a surface that consisted primarily of hard-packed dirt; that the width of the roadway varied from 10' to 16'; that motor vehicles could safely negotiate the terrain; that it is now passable for fire-fighting equipment, ambulances and other emergency vehicles; that the roadway did not appear to be of record, but had been used "as far as memory serves," and that the roadway presently serves as the only means of ingress and egress for several residential properties.
Armed with this variance plaintiffs appeared before the planning board on January 2, 1975. Again, the planning board refused to grant subdivision approval, stating that the
zoning board lacked jurisdiction to vary the requirements for subdivision approval. On February 5, 1975 the planning board formally adopted a resolution to this effect. One week later, February 12, 1975, plaintiffs appeared at the township committee's regular meeting to appeal the decision of the planning board and the Committee scheduled a formal hearing for the following month. On March 12, 1975 this hearing was held and the committee ...