The plaintiff brings this action in lieu of prerogative writs to set aside and adjudge invalid an ordinance to amend an ordinance regulating the opening and improvement of streets adopted by the Township of Livingston on March 21, 1960. The pertinent facts are as follows:
The plaintiff is a partnership engaged in the business of land development and the construction of residential homes. Plaintiff prepared a map or plat for a major subdivision of 213 homes, including a layout of streets to be constructed in such development, to be known as Cherry Hill, and having followed the procedure established by the land subdivision ordinance of the Township of Livingston (hereafter referred to as the subdivision ordinance), on November 20, 1956 received preliminary approval from the Livingston Planning Board. Thereafter, on January 10, 1957 preliminary approval of said plat was granted by the Livingston Township Committee.
Under section 23 of the subdivision ordinance the approval of the preliminary plat conferred upon the plaintiff the following rights for a period of three years from the date of such approval.
"(a) -- That the general terms and conditions under which such preliminary approval was granted will not be changed.
(b) That the subdivision may submit on or before the expiration date the whole or any part or parts of said plat for final approval."
Thereafter a resolution of the planning board, adopted December 15, 1959, and a resolution of the township committee adopted December 21, 1959, extended the period of preliminary approval to January 10, 1961. Both resolutions provided that "during said time the general terms and conditions upon which the preliminary approval was granted shall not be changed."
On January 18, 1960 a portion of the Cherry Hill subdivision known and designated on a map or plat as "Cherry Hill, Section 2," pursuant to the procedures set forth in the subdivision ordinance, received final approval from the township committee, having on November 17, 1959 received similar final approval from the planning board. This section consisted of approximately 31 lots. Plaintiff, prior to such approval, had installed all of the required utilities for this tract, had installed curbs on a portion of the streets laid on such plat, and had posted a performance bond with the municipality, pursuant to the provisions of the subdivision ordinance whereby it guaranteed to construct eight-inch penetration macadam streets which on said date were required by a municipal ordinance "regulating the opening and construction of streets, and relating to the acceptance of streets," which had been adopted by the township on December 4, 1939.
On May 8, 1956 a portion of another subdivision developed by the plaintiff known as "Collins Estates, Section 1B" and consisting of 71 residential lots received final approval from the township committee. Apparently no performance bond was required or filed by the plaintiff relating to such section. Here plaintiff has installed part of the required curbing for the streets to be constructed in such tract.
On the dates of preliminary approval of the Cherry Hill plat, final approval of Cherry Hill, Section 2 plat, and final approval of Collins Estates, Section 1B plat, the municipal ordinance relating to the opening, improvement and acceptance of streets contained specifications requiring newly constructed streets to be paved with eight-inch penetration macadam pavement.
On March 21, 1960 the township committee amended said street construction ordinance and provided that the specifications for newly constructed streets would require a bituminous concrete pavement (referred to as Ordinance No. 6-1960). Said ordinance further provided that it should not apply to "such streets or roads heretofore laid out and now in the
course of construction, provided, however, that the curbs have been installed and the base course laid."
The plaintiff contends that said ordinance operates retroactively to deprive plaintiff of his rights granted to him under the land subdivision ordinance of the municipality and the Municipal Planning Act (N.J.S.A. 40:55-1.1). He contends that the specifications for the construction of roads in a subdivision come within "the general terms and conditions" upon which preliminary approval of the plats was granted; that the final subdivision approvals granted with respect to Cherry Hill, Section 2, and Collins Estates, Section 1B, gave to the plaintiff certain vested and fixed rights which Ordinance No. 6-1960 deprives him of contrary to law. Plaintiff contends that insofar as his subdivisions are concerned Ordinance No. 6-1960 is invalid and should be set aside.
The defendant municipality contends that Ordinance No. 6-1960 does not deprive plaintiff of any vested or fixed rights and that it is a reasonable and valid ordinance properly enacted ...