Civil action. On motion for summary judgment.
Plaintiffs are the owners of 26.2 acres of land located in Marlboro Township. In December 1963 plaintiffs sought approval from the planning board for the development of 44 lots. Accordingly, they submitted a preliminary plat showing, among other requirements, a 10,000-gallon pressurized water tank and a sewage treatment plant located on the northeasterly end of the tract, some 100 feet from the rear of the proposed dwellings.
In December 11, 1963 the planning board approved these plans, subject to further approval by the municipal utilities authority. On December 26, 1963 the township committee also approved plaintiffs' preliminary map, in accordance with the recommendation of the township planning board.
On January 8, 1965 plaintiffs formally sought approval for their water and sewage plans from defendant municipal utilities authority. Defendant has refused, and continues to refuse, to recommend approval since plaintiffs' application does not conform to its rules and regulations. Primarily, defendant contends that the sewerage plant must be located at least 1,000 feet from the nearest dwelling and that the water supply must be located at least 500 feet from any possible source of contamination.
On this motion for summary judgment plaintiffs contend that the authority's rules and regulations are inapplicable to their development and, if applicable, are unreasonable.
Plaintiffs' initial contention is that any change in the location of the sewerage and water supply facilities constitutes a fundamental change in the development. They contend that to locate their treatment plants in accordance with defendant's regulations would effectively deprive them of the majority of usable lots in the proposed development. Consequently, they argue that sewerage and drainage facilities are general terms and conditions which cannot be changed after tentative approval in accordance with N.J.S.A. 40:55-1.18.
Whether sewerage and drainage structures are general terms or conditions (N.J.S.A. 40:55-1.18) or merely improvements (N.J.S.A. 40:55-1.19) is a perplexing problem. See, e.g., Hilton Acres v. Klein, 35 N.J. 570 (1961); Pennyton Homes, Inc. v. Planning Board of Stanhope, 41 N.J. 578 (1964); Purich v. Weininger, 72 N.J. Super. 344 (App. Div. 1962), certification denied 37 N.J. 221. However, that problem is not presently before this court. It is the opinion of this court that the developer never perfected preliminary approval and consequently is not entitled to the protection of N.J.S.A. 40:55-1.18.
Authority for this holding is found in the very language of the planning board's resolution, subject to the approval of the municipal utilities authority. Furthermore, by the land subdivision ordinance in the Township of Marlboro, article VI, paragraph 3, the preliminary plat shall meet the requirements of the township engineer and the municipal utilities authority. "Any subdivision or part thereof which does not meet with the established requirements of this ordinance or other applicable regulation shall not be approved." Article VI. In addition, article V, paragraph 4 (d), of the township ordinance provides that preliminary approval may be granted subject to the approval of defendant of the plans and specifications for any public sewage system or public water system.
Secondly, plaintiffs contend that the authority's rules and regulations are not applicable to their development. They base this contention on the fact that their alleged preliminary approval was granted on December 26, 1963, while the rules
and regulations were promulgated on June 5, 1964. However, plaintiffs' argument on this point must necessarily fall for two reasons: (1) they never received any "approval" from the planning board on sewage and water matters; (2) they applied to defendant for approval on January 8, 1965, ...