On appeal from the Superior Court, Law Division, Morris County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.
This action in lieu of prerogative writs implicates heretofore unconstrued provisions of the 1975 Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., dealing with minor subdivisions and the respective jurisdictions of the planning board and the board of adjustment in respect thereof.
Plaintiffs Philip and Donna Amato own a parcel of land in Randolph Township, slightly more than two acres in size. The property is bounded on the south by Sussex Turnpike, a county road, and on the east by Weimars Lane, at present a dirt path, but shown on the township master plan as a 60-foot-wide street connecting Sussex Turnpike and a parallel county road some unspecified distance to the north. It does not appear that there has heretofore been any development at all abutting Weimars Lane, and the record does not indicate the status of title to Weimars Lane. It appears, however, to be a paper street, long since dedicated but never accepted.
At present the property is used by plaintiffs for the operation of their retail nursery business, the improvements consisting of greenhouses and a barn. When plaintiffs purchased the property in 1979 they intended to reside in a single-family residence which was located in the southeast portion of the lot, that is, in the area of the intersection of Sussex Turnpike and Weimars Lane. They were, however, advised that the building was structurally unsound. Their plan was to construct a new residence in what would be the rear of the lot if its Sussex Turnpike boundary were regarded as its front line. This controversy arises out of plaintiffs' efforts to obtain the necessary municipal approvals to implement this plan. Those efforts ultimately involved the filing of a variety of applications with a variety of municipal agencies, resulting in a variety of resolutions, some contradictory.
Plaintiffs' first step was simply to apply to the building inspector for a permit to construct the residence. The permit was denied on the ground that construction of the residence would result in violation of the zoning ordinance, in there being two principal uses on the same lot. Plaintiffs accordingly applied to the board of adjustment for relief pursuant to N.J.S.A. 40:55D-70, requesting a variance from the prohibition against multiple principal uses. The board of adjustment denied the application on the ground that plaintiffs had demonstrated no hardship since the lot was subject to subdivision in full conformance with the bulk requirements of the zoning ordinance. The board did note, however, that a subdivision would result in a problem because the new rear lot would front on an unimproved street and that plaintiffs would require permission to construct a dwelling on such a lot. The board further noted in its resolution of denial that the new dwelling would constitute an expansion of the prior nonconforming use and could, therefore, not be constructed as a replacement of the prior nonconforming use. Finally, the resolution pointed out, presumably in respect of the alleged hardship of plaintiffs, that they had purchased the
property primarily for its commercial use. This action of the board of adjustment was not appealed from.
Plaintiffs' next step was to file a second application with the board of adjustment. The relief sought in this application was first, permission to construct the single-family residence on a lot not abutting upon an improved street; second, for approval of a minor subdivision by which the original lot would be divided into a front lot for the commercial use and a rear lot for the residential use, and third, for a variance pursuant to N.J.S.A. 40:55D-70(c) permitting plaintiffs to use a greater outdoor area for storage on the front lot than the ordinance permitted. The record is difficult to reconstruct from this point on. It appears, however, that although the planning board ordinarily has exclusive jurisdiction to entertain both major and minor subdivision applications, N.J.S.A. 40:55D-37, the application to the board of adjustment for subdivision approval was predicated by plaintiffs on N.J.S.A. 40:55D-76(b), which accords the board of adjustment the power to entertain a subdivision application if made in connection with an application for a so-called special reason variance pursuant to N.J.S.A. 40:55D-70(d). It further appears that the storage space variance was probably requested by plaintiffs for the primary purpose of conferring jurisdiction on the board of adjustment to consider the subdivision application. In any event, the board of adjustment did so, and passed a resolution granting the minor subdivision and further granting plaintiffs the right to build the new house on the rear lot, despite the unimproved condition of Weimars Lane, provided that they razed the original dwelling, that they dedicate to the township an area adequate to provide for a 25-foot turning radius at the intersection of Weimars Lane and Sussex Turnpike, and that they surface Weimars Lane with three inches of quarry-processed stone over a 20-foot width running from the intersection of Weimars Lane and Sussex Turnpike north to the rear line of the rear lot.
Shortly after the adoption of the foregoing resolution and apparently with plaintiffs' prior knowledge, it appears that the
board of adjustment realized that its ancillary subdivision approval power had not been properly invoked since the variance application with which the subdivision application was linked was not for a special reason or use variance under N.J.S.A. 40:55D-70(d) but rather for a hardship variance pursuant to N.J.S.A. 40:55D-70(c). Accordingly, the board of adjustment amended its original resolution by deleting the approval of the minor subdivision and turned the subdivision portion of the application over to the township's planning board.
The planning board classified the subdivision as a minor subdivision and conducted a hearing on plaintiffs' request that the subdivision be granted despite the fact that one of the two lots thereby created would not front on an improved street. Following the hearing the planning board adopted a resolution approving the subdivision subject, however, to a variety of conditions addressed to Weimars Lane. These conditions included the requirement that plaintiffs dedicate to the township a strip running from Sussex Turnpike north to the rear boundary line of the rear lot, 30 feet in width measured from the center line of Weimars Lane to their property line. Plaintiffs were also required to install on Weimars Lane "a full section of paved township road" running from Sussex Turnpike to the rear lot line "for a width of 20 feet and shall provide curbs and drainage, all of which shall be in accordance with the township ordinances and shall be approved by the township engineer." There were no proofs at the planning board ...