Miller, Edward S., J.s.c.
This prerogative writ action raises the spectre of a conflict between the official map adopted by a municipality pursuant to N.J.S.A. 40:55D-32 et seq. and public and private rights in streets or roads not included on such map. The facts giving rise to this controversy are quite simple. The City of Port Republic lies on the south shore of the Mullica River in Atlantic County. It is a rural community having a population in 1980 of 850 and an area of eight square miles. It is one of the older communities in Atlantic County, having been cut out of Galloway Township in the early 1900s. While it is predominantly rural in nature, it straddles the Garden State Parkway, has two interchanges within its borders, is likewise traversed by U.S. Route 9, a heavily travelled highway and is about ten miles north of Atlantic City. There are 6.8 miles of roads shown on the official map and an unknown number of unrecognized roads in addition. It is, in short, in a state of development which cries out for careful, prudent and farsighted planning.
On June 12, 1979, in compliance with N.J.S. 40:55D-32, and after the appropriate gestatorial measures, such as review by the planning board, the governing body adopted an official map. While at the outset of this case plaintiffs assailed the procedural process, this was abandoned at the opening of the trial and the case proceeded upon the theory of the impact of the map upon public roads in the city.
The city takes the position that only those streets shown upon the map are to be considered public streets. Plaintiffs, three married couples, own lands and buildings which front on roads alleged by them to be public roads. It is their contention that the adoption of the official map cannot, in itself, act as a vacation of the roads not included thereon. Rather, it is their position that the vacation of a public right of way can only be done by ordinance pursuant to N.J.S.A. 40:67-19. The issue thus narrows and distills.
The issue of private and public roads has presented troubling problems to governing bodies for years. Plagued by the increased demands of property owners, and thus taxpayers (and voters), to repair or at least maintain or improve a particular road equally plagued with the administrative demands of municipal finance, particularly the "Caps" law, N.J.S.A. 40A:4-45.3, governing bodies have stood in uncertainty as to what they could or could not do to placate their concerned residents without committing the municipality to long-term and expensive course of improvements.
The typical approach to the street problem is presented by the question of rights of the public to a given road, or, conversely, the rights of neighboring property owners to passage or repassage. From these problems have developed well known principles, such as the necessity to dedicate, Price v. Plainfield, 40 N.J.L. 608 (E. & A. 1878); Methodist Episcopal Church of Hoboken Trustees v. Hoboken, 33 N.J.L. 13 (Sup.Ct.1868); acceptance by user, Booraem v. North Hudson Cty. Ry. Co., 39 N.J. Eq. 465 (Ch. 1885); Point Pleasant Land Co. v. Cranmer, 40 N.J. Eq. 81 (Ch. 1885); the rights of the public when a developer sells lots from a map, Point Pleasant Land Co. v. Cranmer, supra. See 2 Walsh, Commentaries on the Law of Real Property, c. 33, p. 746 ff. The definitive treatment is, of course, to be found in Cunningham and Tischler, "Dedication of Land in New Jersey," 15 Rutg.L.Rev. 377-413 (1961).
In the instant case plaintiffs are three families, each living on a road alleged by them to be a public road not included on the official map. The city claims, first, that the roads are private roads and, next, that if they were public roads, their exclusion from the official map operates as a vacation of such roads. The concept of an official map is of relatively recent origin in this State.
Prior to the enactment in 1953 of the Official Map and Building Permit Act, N.J.S.A. 40:55-1.30 et seq., the subject of filed maps was governed by the Old Map Act, R.S. 46:23-1 et
seq. This statute, originally part of the Conveying Act of 1898, L. 1898, c. 232, was intended to provide a method for officially filing maps and to delineate sound engineering standards for maps so filed, Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N.J. 423, 433 (1958); Loechner v. Campoli, 49 N.J. 504, 510 (1967). The repeal of the Old Map Act and the substitution therefor of the New Map Act now contained in N.J.S.A. 40:55-1.30 et seq. constituted merely a "state of the art" updating the technical requirements, not a change in the scheme. R.S. 46:23-9.13 contains a provision that the approval of a map shall not constitute acceptance of roads, streets or by-ways shown therein.
In 1930 the first New Jersey planning statute was passed. L. 1930 c. 235. While it differs from our present statute as the bud from the flower, the schematic appears therein. Under its provisions the governing body of a municipality was empowered by § 7 to establish, by ordinance, the master plan, either in whole or in part, as the official map of the municipality. This was to be deemed "official and conclusive" with respect to the location, width and certain other characteristics of the roads and streets therein. See Cunningham, "Control of Land Use in New Jersey Under the 1953 Planning Statutes," 15 Rutg.L.Rev. 1, 2 (1960).
In 1953 the Legislature carved out the official map concept from the generality of the master plan itself into a specific map, L. 1953 c. 434, R.S. 40:55-1.30. While it has been rewritten in the Local Land Use Law, its salient features are retained, N.J.S.A. 40:55D-32 et seq. It reads as follows:
40:55D-32. Establish an official map
The governing body may by ordinance adopt or amend an official map of the municipality, which shall reflect the appropriate provisions of any municipal master plan; provided that the governing body may adopt an official map or an amendment or revision thereto which, in whole or in part, is inconsistent with the appropriate designations in the subplan elements of the master plan, but only by the affirmative vote of a majority of its full authorized membership with the reasons for so acting recorded in the minutes when adopting the official map. Prior to the hearing on the adoption of any official map or any amendment thereto, the governing body shall refer the proposed official map or amendment to the planning board pursuant to subsection 17a. of this act.
The official map shall be deemed conclusive with respect to the location and width of streets and public drainage ways and the location and extent of flood control basins and public areas, whether or not such streets, ways, basins or areas are improved or unimproved or are in actual physical existence. Upon receiving an application for development, the municipality may reserve for ...