Molineux, J.c.c. (temporarily assigned).
[69 NJSuper Page 136] This is an action in lieu of prerogative writs which seeks to set aside ordinance No. 323 of defendant Borough of Middlesex, by which its prior zoning ordinance was amended so as to create
a new zone within defendant municipality limiting the use of the lands in said new zone to parks, playgrounds and schools. Plaintiffs are the City of Plainfield, the Borough of North Plainfield and the Borough of Dunellen, acting in joint meeting in accordance with a contract entered into among themselves on or about November 3, 1913, pursuant to the legislative authority now found in R.S. 40:63-68.
About 1914 plaintiffs acquired title to about 91 acres located within the boundaries of defendant Borough of Middlesex, bounded on the north by Green Brook, on the west by Green Brook and by Bound Brook, on the south by Bound Brook Road, also known as State Highway No. 28, and on the east by various private properties and the dead ends of certain streets. Plaintiffs constructed on said property a sewage disposal plant for the three plaintiff municipalities. Defendant municipality had no interest in the operation of this plant and none of its sewage was treated therein.
In 1954 contracts were entered into between plaintiffs in joint meeting and the Middlesex County Sewerage Authority, under which the sewage being treated in the sewage plant aforesaid would instead be deposited into the trunk sewer then under construction by the County Sewerage Authority.
Sometime in 1958 the necessary connections were made between the sewage systems of the joint meeting and that of the Middlesex County Sewerage Authority. As a result, the sewage plant of plaintiffs was no longer necessary for plaintiffs' operation and was dismantled.
Facilities other than the treatment plant itself, consisting of a two-story office and laboratory building, garage, machine shop, a maintenance building and a residence for the superintendent, remain necessary for the continued operation of the joint meeting's sewage system as so connected with the Middlesex County Sewerage system.
In 1951 plaintiffs sold to the Board of Education of the Borough of Middlesex about 15.8 acres located on the southeast corner of its property, on which the board has erected a new high school. Notwithstanding said sale and the retention
of the facilities by the plaintiffs, there still remains a very substantial part of the land originally purchased by the plaintiff of no use to them and they have placed the same on the market for sale.
Defendant wishes to acquire the excess lands for park and playground purposes. The board of education showed sufficient interest in purchasing the property to place before the school electorate a proposal for raising funds for such purpose. The proposal was defeated.
After this defeat defendant municipality commenced negotiations for the purchase by it of the lands in question, and plaintiffs were offered $100,000 for the same. This offer was rejected. Further negotiations have not been successful, but it appears that plaintiffs intend to sell and defendant wishes to purchase.
On February 9, 1955 a zoning ordinance for the Borough of Middlesex was duly adopted, under the terms of which all the lands and premises of plaintiffs were zoned under the classification of R-100, the highest evaluation of residential property. The surrounding area was zoned and used for residential and commercial properties. No change in zoning affecting these lands was ever made until passage of ordinance No. 323, the ordinance here in question.
The stipulation of facts entered into herein and constituting part of the record on which this case is to be decided includes this interesting paragraph:
"9. In a meeting with representatives and attorney of the defendant the suggestion was made to a committee representing the plaintiffs that if no agreement was reached for the purchase of the land on the defendant's terms, the defendant would rezone the whole tract for parks and playgrounds."
On August 24, 1960 ordinance No. 323 was adopted in final form as an amendment to defendant's original ordinance. It creates a new zone limited as to use to parks, playgrounds and schools. The area encompassed in the new zone includes all ...