Noble v. Chairman and Members of Tp. Committee of Mendham Tp.
| Decision Date | 26 April 1966 |
| Docket Number | Nos. A--580--62,A--123--64,s. A--580--62 |
| Citation | 219 A.2d 335,91 N.J.Super. 111 |
| Parties | Oliver D. NOBLE and Ella D. Noble, his wife, Plaintiffs-Appellants, v. CHAIRMAN AND MEMBERS OF the TOWNSHIP COMMITTEE OF the TOWNSHIP OF MENDHAM, a municipal corporation of New Jersey, and Planning Board of the Township of Mendham, Defendants-Respondents. Oliver D. NOBLE, Plaintiff-Appellant, v. The TOWNSHIP OF MENDHAM, a municipal corporation of the County of Morris and State of New Jersey, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Oliver D. Noble, pro se, for appellants.
Alten W. Read, Morristown, for respondents (Schenck, Price, Smith & King, Morristown, attorneys).
Before Judges GAULKIN, FOLEY and COLLESTER.
The opinion of the court was delivered by
COLLESTER, J.A.D.
This is an appeal by plaintiffs from adverse judgments entered in the Law Division in two separate actions which were consolidated for the purpose of this appeal.
Plaintiffs Oliver D. Noble and Ella D. Noble, his wife, own a tract of land located in Mendham Township which is zoned for residential use. On October 1, 1958 they applied to the planning board for approval of the tract as a minor subdivision. They sought to divide the property into four lots, three of which would front on Shores Road. The fourth lot, an interior lot, was to be conveyed to an adjoining landowner after subdivision approval.
The land subdivision ordinance of Mendham Township then in effect classified subdivisions of real property as 'major' and 'minor' and were defined in article IV as follows '4. Minor Subdivision. Any subdivision containing not more than 5 lots fronting on an existing minor street, not involving any new street or the extension of municipal facilities and not adversely affecting the development of the remainder of the parcel or adjoining property and not in conflict with any provision or portion of the master plan, official map, zoning ordinance or this ordinance.
5. Major subdivision. All subdivisions not classified as minor subdivisions.'
The planning board rejected plaintiffs' application on the ground that Shores Road was not recognized as a township or public road. The board indicated it would reconsider the application if plaintiffs could submit proof that it was a public road.
At a meeting of the planning board on December 17, 1958 plaintiffs presented a road return for Shores Road recorded on February 23, 1803 in the office of the Morris County Clerk. Thereafter, at various conferences and meetings with the planning board and township committee, plaintiffs sought approval of their plan as a minor subdivision.
On June 15, 1960 the planning board adopted a resolution approving plaintiffs' plan as a minor subdivision but imposed two conditions, namely, (1) that a notation be placed on the plat map that no building permits would be issued for any lots thereon until Shores Road was suitably improved in accordance with the Official Map and Building Permit Act (N.J.S.A. 40:55--1.30 et seq.), and (2) that an adjoining lot owned by plaintiffs be included as part of the subdivision. Thereafter, the planning board resolution was approved by the township committee.
Plaintiffs brought an action in lieu of prerogative writs challenging the resolution. The Law Division held that the planning board had no right to impose the conditions. However, it refused to order that plaintiffs' application for approval of their plat as a minor subdivision be granted, and remanded the case to the planning board for a further hearing.
Plaintiffs appealed to this court. On June 10, 1963, while the appeal was pending, the township amended its subdivision ordinance changing the definition of and requirements for approval of a plat as a minor subdivision. Article IV was amended as follows:
'4. Minor Subdivision. A minor subdivision is one of the following:
(a) Any subdivision of a lot, tract or parcel into not more than five (5) lots, all of which front on an existing improved street and all of which are adequately drained; not involving a new street or the extension of municipal facilities; and not adversely affecting the development of the remainder of the parcel or adjoining property; and not in conflict with any provision or portion of the Master Plan, Official Map, or Zoning Ordinance, or this ordinance; or
(b) Any subdivision of a lot, tract or parcel into two lots for the sole purpose of merging one of the subdivided lots with an adjoining lot, tract or parcel provided all the following conditions are complied with:
(1) The remaining subdivided lot fronts on an existing improved street and conforms to the zoning ordinance.
(2) The adjoining lot, tract or parcel fronts on an existing improved street.
(3) The merging lot, although not required to front on an existing street or conform to the size or area requirements of the zoning ordinance, when combined with the adjoining lot forms a single lot, tract or parcel which is not in conflict with the zoning ordinance.
(4) The subdivision will not adversely affect the development of the remainder of the subdivided parcel or the adjoining property and is not in conflict with any portion of the master plan, official map or this ordinance.
(5) The newly formed combined lot resulting from the combination of the merging lot and the adjoining lot is adequately drained.
17. Existing Improved Street as Applied to Minor Subdivision. Any street, avenue, boulevard, road, lane, parkway, viaduct, or alley, or other way which is an existing state, county, or municipal roadway presently maintained by the state, county or municipality; and which by reason of its condition can be traversed at all times of the year by modern motor vehicles and provides adequate access for fire-fighting equipment, ambulances, and other emergency vehicles necessary for the protection of health and safety.'
Plaintiff Oliver D. Noble brought a second action in lieu of prerogative writs challenging the validity of the amendment. The court upheld the ordinance as amended, and Noble appealed.
All parties agree that the effect of the amendment is to render plaintiffs' proposed subdivision 'major' rather than 'minor' because Shores Road is not an existing improved street presently maintained by the township, and it cannot be traversed by motor vehicles, fire-fighting equipment, ambulances and other emergency vehicles.
It is also obvious that if the amendment to the subdivision ordinance is valid, the issues raised by plaintiffs for a reversal of the prior judgment need not be determined. It is well settled that the ordinance in effect at the time the case is ultimately decided is controlling. Hohl v. Readington Tp., 37 N.J. 271, 279, 181 A.2d 150 (1962); Tice v. Borough of Woodcliffe Lake, 12 N.J.Super. 20, 25, 78 A.2d 825 (App.Div.1951). Accordingly, we shall consider first the appeal from the judgment upholding the validity of the amendment to the ordinance.
Plaintiff contends that article IV, as amended, is illegal because it empowers the planning board to compel a subdivider, as a condition precedent to subdivision approval, to improve a public street fronting on his property. He alleges that the definition of 'existing improved street' set forth in article IV, paragraph 17 of the amendment is discriminatory and illegal because it attempts to create classes of public streets having different standards of condition. He further alleges that the condition that an adjoining tract of land, with which a subdivided lot is to be merged, must front upon an existing improved street, is unreasonable and capricious.
We do not agree. The amendment does not empower the planning board to compel a subdivider to improve an existing public road as a condition for approval of a subdivision. It merely designates and defines those subdivisions, described as 'minor subdivisions,' which are to be classified as exempt from the further procedures and requirements of the ordinance for tentative and final approval as nonexempt 'major' subdivisions. Authority for the classification of subdivisions as exempt or nonexempt, Sub nom. 'minor' or 'major,' is granted to the municipal governing body by N.J.S.A 40:55--1.14. See Kotlarich v. Ramsey, 51 N.J.Super. 520, 144 A.2d 279, (App.Div.1958). The statute permits the municipality by ordinance to require subdivision approval by the planning board, in lieu of the governing body, in accordance with the regulations, requirements and standards established by the governing body. It further provides:
'Any such ordinance may exempt from the requirement of local municipal approval, subdivisions wherein the number of new lots is less than a designated number, or plats that do...
To continue reading
Request your trial
-
Leslie Blau Co. v. Alfieri
... ... Now, members of the jury, at the outset I just want to comment on an ... ...
-
North Landers Corp. v. Planning Bd. of Falmouth
...motor vehicle traffic and to provide access for fire-fighting equipment and other emergency vehicles." Noble v. Township Comm. of Mendham, 91 N.J.Super. 111, 118, 219 A.2d 335 (1966). In Massachusetts, the existence of adequate access is the threshold determination that triggers operation o......
- Abb Daimler-Benz Transp. v. National R.R. Passenger
-
Reed v. Planning and Zoning Com'n of Town of Chester, 13266
...416 N.E.2d 934 (1981); Diversified Properties, Inc. v. Planning Board, 125 N.H. 419, 420, 480 A.2d 194 (1984); Noble v. Mendham, 91 N.J.Super. 111, 118-19, 219 A.2d 335, cert. denied, 48 N.J. 120, 223 A.2d 497 (1966). In fact, the existence of inadequate access roads to a proposed subdivisi......