Schwartz, J.c.c. (temporarily assigned).
[69 NJSuper Page 330] Plaintiffs are the owners of 212 lots, located southwest of Elm Street in Woodbridge Township, as shown on Map of Highland Road and South Cliff Road, Sanitary Sewer System (Exhibit P-1). Only one house is erected thereon and is serviced
by a septic tank. The defendant municipality adopted an ordinance on September 27, 1960 authorizing and appropriating funds for sanitary sewers. The ordinance authorizes services for the Highland Road area and the Victory Acres area of the Township. Sewering of plaintiffs' lands covers somewhat less than one-half of the total linear feet of sewer in the Highland Road area. The Victory Acres area is probably twice as extensive since the appropriation for the same is over twice that of the Highland Road area. Plaintiff produced no evidence of the situation on the Victory Acres area.
The improvement authorized by N.J.S.A. 40:56-1 as a local improvement contemplates assessment against lands to the extent benefited. Since the municipality had reached its debt limit the State Board of Health, finding that the "expenditure and every part thereof, is necessary to protect the public health and to prevent or suppress a present menace to the public health * * * and that no less expensive method of preventing or suppressing such menace exists," issued an order July 26, 1960 (N.J.S.A. 40:1-16(g)) permitting the municipal action.
Plaintiffs' complaint in lieu of prerogative writs seeks to repeal or modify the ordinance, to eliminate their lands from the project; a restraint against defendant's accepting bids, awarding a contract and assessing their lands, and judgment declaring the ordinance and proposed assessment unconstitutional.
It is contended that plaintiffs' lands are free of unsanitary conditions and no present menace exists requiring said lands to be sewered, and consequently the State Board of Health action was improvident and lacked factual basis so far as their lands are concerned.
Plaintiffs additionally maintain that they do not need the improvement, since they have no present intentions of building and sewers could be installed when and if needed in the future; and an engineer testified on their behalf that it would be sound engineering practice to bring the sewer up
to plaintiffs' lands and stop there. The municipal engineer, on the other hand, said it would be sound engineering practice to include plaintiffs' lands at this time to avoid piecemeal operation with consequent obvious municipal burdens. It is agreed that plaintiff received no notice and did not appear at the State Board of Health hearing. (No notice is provided under the statute.) Public notice of the ordinance is conceded, however, by publication, and proper procedural enactment and authority to take the municipal action is undenied.
There is no dispute that plaintiffs' lands are free of unsanitary conditions. In addition there is no contradiction or dispute that said lands are undeveloped (with exception of the one house above mentioned), overgrown with shrubs and trees, and no streets are laid out. Plaintiffs are builders and developers, have built 35 homes or so in the last six years, and built others prior thereto. Plaintiffs Michael Csaki and his son, as builders, have had dealings with the borough for years and both testified the township officials had been giving them a "hard time" for a long time, with undue delays in building permits and the like. Their testimony sought to establish ill will against them in support of such allegation in the complaint. (It appears however that the mayor and present committeemen, recently elected, represent a change in political administration.) Additionally, they stated that on September 27, 1960, the night of the meeting at which the ordinance was adopted on final reading, they objected to inclusion of their lands in the ordinance and the mayor assured them "it would be deleted" when informed it was vacant land. However, they also said the mayor told them he would look into it. They testified they felt assured and left, and first learned the ordinance was adopted, with their lands included, when, in May 1961, they noticed publication for bids. The mayor and engineer dispute any promise "to delete." The mayor testified that on September 20, and not 27, the Csakis appeared at a meeting and complained. He said he would direct the engineer to
look into the matter and report. This was done and the engineer reported unfavorably as to the elimination. The municipal engineer corroborated the mayor's version and further testified there were problems with developers seeking to install sanitary sewers in piecemeal fashion; that septic tanks are not successful due to high clay content of the soil; other sewer projects are proceeding simultaneously for overall sewer service for the municipality; that he inherited these sewer plans from the engineer who was his predecessor; that it was a "bad septic area" and that there was "raw sewage in the streets," and there were recurrent requests by many residents for the sewer, the unsanitary conditions being a matter of general knowledge.
The plaintiffs' engineer stated "all the terrain is practically the same" and conceded he has designed sewer plans for municipalities where there was ...