Halpern, J.s.c. (orally delivered).
These proceedings present two motions for determination.
The plaintiff, Midtown Properties, Inc., seeks, by way of motion, to specifically enforce a consent judgment entered by this court on September 9, 1959; and the defendants seek, by way of motion, to vacate and set aside this judgment.
The matter comes on for hearing based upon the pleadings, the affidavits, briefs and oral argument; all of which have been considered by the court. Because of the public importance of the matter, I deem it advisable to enter my decision today, orally and in open court, so that any aggrieved party will be able to expeditiously pursue any available remedy.
To better understand the problem it is necessary to briefly set forth the facts which are not seriously in dispute -- giving all favorable inferences to the party against whom relief is sought. In other words, I am adopting the same approach I would use if the motions were for summary judgment.
Plaintiff owns about 1,475 acres of land in the defendant township, having a perimeter of about 19 1/2 miles.
The township, on August 9, 1954, pursuant to N.J.S.A. 40:55-1.1 et seq. , had adopted a Master Plan for the planned development of the lands within its borders which totaled about 40.2 square miles. In accordance with the power given to it under the enabling statutes, the township's ordinance provided for a planning board, with power to consider and make recommendations to the governing body in connection with proposed subdivisions. This planning board is known in the law as a "Weak Board."
Plaintiff applied to the Planning Board for subdivision of its entire tract, and on September 29, 1955 the Planning Board recommended favorable action thereon to the Township Committee. The Committee approved the application on the same day upon plaintiff's compliance with certain conditions pertaining to sewage, roads and in addition that plaintiff furnish land and certain school facilities. The original approval encompassed about 5,800 lots, each lot having an area consistent with the ordinance requirements of a minimum of 65 feet by 100 feet.
On July 23, 1956, the township amended its ordinance increasing its lot sizes for most of the area in which plaintiff's lands were located to a minimum frontage of 75 feet and a minimum lot area of 9,000 square feet.
On April 17, 1957, plaintiff applied to the Planning Board for final approval of 129 lots. The application failed to meet the condition concerning the furnishing of school facilities and the sewage requirements and the Board took no action thereon.
On May 15, 1957 plaintiff again submitted its application for final approval of 129 lots (presumably the same ones) on lots 65 feet by 100 feet in area.
On May 20, 1957, by amendment to its zoning ordinance, the township further increased the lot sizes for the area in which plaintiff's lands were located to a minimum width of 100 feet and a minimum area of 10,000 square feet.
On June 19, 1957 the Planning Board denied final approval for the 129 lots.
The plaintiff did not appeal from the Planning Board's decision to the Township Committee, nor did it seek relief from the courts until November 27, 1957, when it started suit to compel defendants to give final approval for the 129 lots in question, and for other relief.
No formal application was ever made by the plaintiffs for final approval of the remainder of the tract.
The law suit remained dormant after defendants filed their answers. It was never pretried. Evidently the parties negotiated with reference to the proposed development.
On July 27, 1959, almost two years after the suit was started, and almost four years after tentative approval had been obtained, the plaintiff and the defendants purported to enter into a written contract which set forth the terms under which plaintiff could proceed with the development. This agreement, which will be discussed shortly, became the basis on which the trial judge entered a consent judgment. The trial judge took no testimony, nor does it appear that he even knew what the parties had agreed upon. In reliance upon this contract and judgment the plaintiff spent approximately $200,000, mostly in engineering fees, to redesign its layout of lots, sewers, streets, play areas, fire houses, police stations, schools, business and shopping areas, etc.
In February 1961 plaintiff filed its plats and other documents with the Planning Board for final approval, but on March 5, 1961 the Board refused to grant final approval because it contended the consent judgment of September 9, 1959 was illegal and void. Plaintiff appealed the Board's action to the Township Committee. On March 25, 1961 the Committee affirmed the action of the Board for the same reasons given by the Board.
At the outset I should dispose of the original tentative approval of September 29, 1955, its effectiveness as of this date, and the plaintiff's original suit to compel defendants ...