Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
[89 NJSuper Page 256] This is an appeal by defendants from a summary judgment entered by the Law Division, Monmouth
County, in favor of plaintiff developer, and ordering defendant LaMura, building inspector of Marlboro Township, to issue building permits to plaintiff for 20 lots in section 1-B of plaintiff's approved and filed subdivision development entitled, "U.S. at Marlboro West."
Final approval of sections 1-B and 1-A of the subdivision, encompassing 42 lots, had been granted by the planning board then in office on December 27, 1963, and by the Marlboro Township Committee (as required by the subdivision ordinance) on December 30, 1963. The approved map of section 1-B was filed in the Monmouth County Clerk's Office February 5, 1964. The approvals mentioned arose out of an application submitted April 10, 1962 by plaintiff for tentative approval of a major subdivision, ultimately to embrace hundreds of lots, followed by preliminary approval by the planning board April 30, 1963. For some reason not indicated in the record, that approval was later voided and the application was resubmitted November 12, 1963. On December 11, 1963 preliminary approval was voted by the planning board "subject to the approval of the Monmouth County Planning Board and the approval of the Marlboro Township Municipal Utilities Authority." On December 27, 1963 the planning board granted final approval of sections 1-B and 1-A. On the same day the Municipal Utilities Authority had granted franchise consents to a water company and a sewerage company owned by plaintiff for conducting water and sewerage utilities in the subdivision. On December 30, 1963 the township committee granted final approval for sections 1-B and 1-A.
As of January 1, 1964 the form of government of Marlboro was changed to Mayor-Council Plan E under the Faulkner Act, and the former township committee was superseded as the governing body by the new council on May 29, 1964. It appears that some, if not most, of the members of the new body had campaigned for election thereto in opposition to what was asserted to be excessive and over-rapid residential development of the township, particularly by "mass-developers" like plaintiff. The old planning board was superseded by
a new board, appointed by the new governing body, and it assumed its functions on June 1, 1964.
On September 17, 1964 plaintiff applied to defendant building inspector for building permits for eight dwellings in section 1-B. These were promptly refused on the ground that the official had orders from the council not to issue the permits. The action was subsequently explained in a letter which stated that "no Utilities Authority approval" had been given the subdivision. On October 13, 1964 plaintiff applied for permits for 12 additional dwellings in section 1-B. These were likewise refused, first, for the reason that the building inspector had orders from the council not to issue them, and second, on the ground that the building code of the municipality prohibited issuance of more than ten building permits to any developer at one time.
This action in lieu of prerogative writs to compel the issuance of the permits was brought October 19, 1964. The first count of the complaint complains of the refusal of the first eight building permits; the second, of the denial of the 12 others. The answer filed by defendants, so far as it concerns section 1-B and plaintiff's claimed right to build thereon, sets forth the following defenses: (1) the final approval by the former township committee on December 30, 1963 was invalid by reason of the fact that "approval of the plans and specifications for water and sewer facilities was not obtained" from the Municipal Utilities Authority and "approval of the map was not obtained from the Monmouth County Planning Board"; (2) the lot sizes on the subdivision map did not conform to the then existing zoning ordinance of the township; (3) the map did not comply with the zoning ordinance provisions in that "all lots shown thereon did not have a minimum frontage of 100 feet," so that approval of the map by the planning board was illegal; (4) the zoning ordinance when the permits were applied for required 40,000 square feet and a minimum frontage of 200 feet per lot, and none of the lots in question exceeded 20,000 square feet or 100 feet frontage. Another purported defense, concerning decreases in
lot sizes and frontages on the map finally approved from those shown on the "tentatively approved" map is here immaterial because the defense was asserted in relation to section 2-A, which is not involved in this action.
Plaintiff moved for summary judgment, supported by affidavits, and defendants resisted, with supporting affidavits. After hearing argument, Judge Mariano filed an opinion February 2, 1965 stating his findings and conclusions in support of his determination to ...