Civil action in lieu of prerogative writ.
The present action seeks judicial review of the validity of an ordinance adopted by the defendant Town of Belleville on July 23, 1957.
The plaintiff, Rutan Estates, Inc., a housing development corporation, has constructed within the confines of Belleville a development consisting of approximately 70 units. The challenged ordinance provides that the cost of water main extensions to the housing development shall be assessed as a local improvement to be borne by either the developer or the property owners affected therein.
The plaintiff contends that the capital outlay for such project should be met out of the general revenues of the town, contending that the income from future water rents will be more than sufficient to discharge the initial obligation.
Initially, we may observe that N.J.S.A. 40:56-1, subd. k , enacted by the Legislature in 1951, contains authority for a municipality to provide for the cost of water main extensions as a local improvement. Our inquiry therefore, should be directed to whether, under all the circumstances here present the adoption of the ordinance
constituted an abuse of the broad discretionary powers vested in the governing body, for a presumption generally arises in favor of the validity of an ordinance adopted within the statutory powers of a municipality and the courts are not prone to invade the discretionary sphere of the governing body in the absence of a positive showing of an arbitrary, unreasonable or capricious abuse of such authority. Michaels v. Township Committee of Pemberton Tp., Burlington County , 3 N.J. Super. 523 (Law Div. 1949); State v. Mundet Cork Corp. , 8 N.J. 359 (1952); Baris Lumber Co. v. Town of Secaucus in Hudson County , 20 N.J. Super. 586 (Law Div. 1952); Chirichella v. Department of Civil Service , 31 N.J. Super. 404 (App. Div. 1954).
As aforementioned, the plaintiff is the owner and developer of a tract of land in the Town of Belleville, which tract was divided into lots as shown more fully on two certain maps filed in the Register's Office of Essex County, the first on May 23, 1957. The maps of Rutan Estates, first section, aforementioned were approved and formally accepted for dedication by resolution of the Town of Belleville on February 26, 1957, and the second section by resolution dated April 9, 1957. The resolutions provide that in each case the map "is hereby accepted for dedication by the Town of Belleville, provided that before such acceptance shall become effective compliance shall be had with all of the requisite provisions of an ordinance entitled 'an ordinance to establish certain standards, requirements and regulations with respect to the laying out, construction, dedication, approval and acceptance of streets, sanitary and drainage sewers and other improvements in the Town of Belleville, including approval for filing of real estate developers maps, adopted July 25, 1950 and R.S. 46:23-2 etc.'"
The 1950 ordinance referred to in the accepting resolutions provides for certain improvements, including roads, under-drains, concrete sidewalks, curbs and sanitary sewers. There is reference, also, to water connections with existing town installations and the requirement that upon completion of the work a utility map is to be submitted showing house
connections to various utilities including house connections to water mains. There is no specific reference in these requirements to water main extensions.
Following the passage of the aforesaid resolutions by the Town of Belleville and the issuance of building permits, the plaintiff began the construction of homes and the sale thereof, and beginning in May 1957 sold or contracted ...