Bennett, J.s.c. (temporarily assigned).
This is an action in lieu of prerogative writs instituted by plaintiffs Alexander Savonick, Martin J. Polsky and the New Jersey Home Builders Association, a corporation of the State of New Jersey, against defendant, Township of Lawrence seeking the invalidation of an amendatory land-subdivision ordinance requiring a developer of three or more building lots to install certain public improvements prior to final subdivision approval, and to post performance guarantees in the form of an 80% surety bond together with a 20% cash deposit to insure the completion of the remaining required improvements.
Despite formal protestations by plaintiff Savonick that his property rights were violated in contravention of the New Jersey and Federal Constitutions, the Township of Lawrence adopted an ordinance on March 3, 1965 entitled "An Ordinance to Amend and Supplement the 'Land Subdivision Ordinance' of the Township of Lawrence in the County of Mercer and the State of New Jersey, adopted May 19, 1954, as Amended and Supplemented." The ordinance provides, inter alia, as follows:
"No final plat shall be finally approved by the Planning Board until the satisfactory completion of all such required improvements has been certified to the Board by the Township Engineer, or unless the subdivision owner or owners shall likewise have satisfactorily completed (1) all required utility installations and their appurtenances, including water mains, gas, sanitary sewers, and drainage, all in accordance with Township specifications and as may be required by the Planning Board; (2) completed grading and constructed surfacing of the "base course" of all streets in accordance with Township specifications and as required by the Planning Board, and filed with the Township Committee a Performance Bond sufficient in amount to cover eighty (80) per cent of the cost of all other such improvements required by the Planning Board, together with either cash or a cashier's or certified check sufficient in amount to cover the remaining twenty (20) per cent of the cost of said improvements, all as estimated by the Planning Board, or by such other Township agency, official or department as may be indicated by the Board, and assuring the proper installation of such improvements by or before an agreed date, which said 20% shall be held in escrow by the Township Treasurer, and deposited or invested in the manner prescribed by law for
municipal funds, the principal amount to be refunded to the subdivision owner or owners upon satisfactory completion of all such improvements and for release of said applicable Performance Bond, or sooner, in the sole discretion of the Township Committee."
By requiring the installation of utilities and their appurtenances, including water mains, gas, sanitary sewers and drainage, and the completed grading and constructed surfacing of the base course of the streets prior to final approval, plaintiffs assert that the ordinance is repugnant to the Municipal Planning Act (N.J.S.A. 40:55-1.1 et seq.) and places an unconscionable burden on the developer, creating certain practical as well as legal problems.
Apprehension is evinced over the degree of protection that a developer has during the interval between preliminary and final subdivision approval. Plaintiffs assert that even if they installed the enumerated utilities, they would not be adequately protected against subsequent changes in specifications and would be without adequate assurance that they would even receive final subdivision approval from the planning board. Amplifying their contention, they see a parallel between Levin v. Livingston Township, 35 N.J. 500 (1961), and the instant case. In Levin the question was whether a municipality might, after it had granted preliminary approval and the subdivider had commenced construction of the streets, amend its street ordinance to require paving with bituminous concrete instead of penetration macadam originally provided for on the tracts in which improvements were already being constructed. Justice Hall indicated that while preliminary approval by a municipal authority does not preclude subsequent amended street pavement specifications from being applicable, there does come a point in the approval process where the developer is protected against further changes of this nature, and that point is reached when final approval is granted.
As a practical matter, plaintiffs further assert, utility companies are reluctant to put in gas or water mains without final approval, and developers must pay "out of their pockets"
for these installations, or post a bond with the utility company.
The initial question is whether that part of the amendatory ordinance dealing with the installation of the enumerated utilities conflicts with the apposite section of the Municipal Planning Act (N.J.S.A. 40:55-1.21), which provides as follows:
"Before final approval of plats the governing body may require, in accordance with the standards adopted by ordinance, the installation, or the furnishing of a performance guarantee in lieu thereof, of any or all of the following improvements it may deem to be necessary or appropriate: street grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, and ...