For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Francis, J.
In this proceeding the Board of Public Utility Commissioners authorized Monmouth Consolidated Water Company to install a water storage tank, pumping station and the necessary fixtures and appurtenances at a specified location in the Township of Middletown, Monmouth County, New Jersey. Monmouth's application therefor was opposed by the township, and by Mrs. Helen Conrow and Mr. and Mrs. Richard Marsen, owners of property near the site, primarily on the ground that the proposed construction was prohibited by the municipal zoning ordinance. Following the board's order of approval, the objectors appealed and we certified the matter on our own motion prior to argument in the Appellate Division.
The Township of Middletown is a rapidly growing, predominantly residential community in Monmouth County. In 1950 its population was 16,203; by 1960 it had exploded to 39,675, a growth of 145%. The prognosis is that by 1975 the number will reach 65,000. Naturally the bourgeoning citizenry has brought an increase in the demand for water. To illustrate, the township consumed 896.8 million gallons in 1962; in 1964 it rose to 1200.4 million gallons. The maximum daily delivery increased from 5.6 million gallons on
June 10, 1962 to 7.9 million gallons on May 23, 1964. The minimum daily delivery rose from 1.1 million gallons on April 17, 1962 to 2 million gallons on October 2, 1964.
Monmouth is a public utility engaged in the business of selling water to the public in various municipalities in Monmouth County, including Middletown. The multiplying demand in Middletown imposed such a strain on Monmouth's plant as to induce a management decision that additional facilities were necessary. More specifically, it was decided that storage facilities should be provided in the township, to consist of a 1.5 million gallon storage tank and pumping station, with their associated fixtures, mains, pipes, etc. The proposed tank is to be a ground storage tank, cylindrical in shape, 40 feet high and 80 feet in diameter. The pumping station will be housed in a single building of face brick and stone trim, 38 feet long and 20 feet wide. It is the company's view that the tank is needed primarily to serve the northwest area of Middletown, but is required also for the entire township service area during peak hour periods. No one in the case questions the need and desirability of the additional facilities or of the proposed method of supplying the demand for water.
The company instituted a search for suitable and available property for location of the tank and pumping station. After encountering some refusals by owners to sell desirable land for the purpose, Monmouth succeeded in obtaining a contract for purchase of the site in question. It is part of a large parcel of undeveloped land, known as the Ellison tract, located on the east side of Middletown-Lincroft Road, a main thoroughfare in the township. The tract contains 38.765 acres and the Ellison home is the only structure on it. The Monmouth contract is for a lot roughly 250' x 250' or 1.165 acres, fronting on the Middletown-Lincroft Road and positioned in the extreme southwest corner of the Ellison tract; to the west across the road and to the south are undeveloped lands, and to the north and east is the remainder of the Ellison tract. Thus the tank site is surrounded by undeveloped
land. According to the plan approved by the Board of Public Utility Commissioners the tank when completed will be 110 feet from the center line of the Middletown-Lincroft Road, approximately 50 feet from the rear lot line, 20 feet from the northerly side line, and approximately 150 feet from the southerly side line. The pumping station housing will be 116 feet from the northerly side line, 130 feet from the rear line, 98 feet to the southerly side line and 90 feet from the center line of the Middletown-Lincroft Road. The width of that road is 33 feet which brings the tank to within 93.5 feet of its easterly edge, and the pumphouse only 81.5 feet therefrom.
Under the zoning ordinance of Middletown the Ellison tract as well as the surrounding area are in the R-30 residence zone, and the proposed use of the portion purchased by Monmouth is not permitted unless a special exception is granted by the Board of Adjustment. Applications designed to eventuate in such an exception were instituted before the Board of Adjustment and the Planning Board. The relief sought was denied. Thereafter Monmouth filed two petitions with the Board of Public Utility Commissioners, one under N.J.S.A. 40:55-50, and the other in the form of an appeal under N.J.S.A. 40:55-1.19 from the adverse action of the Planning Board in denying a minor subdivision approval covering the lot in question. We need not discuss the local proceedings because on the record here we are satisfied that the petition to the board under N.J.S.A. 40:55-50 provided a complete, original and independent avenue of remedy in the situation. See In re Application of Hackensack Water Co., 41 N.J. Super. 408, 415 (App. Div. 1956), and see, In re Public Service Electric & Gas Co., 35 N.J. 358, 372 (1961).
The statute N.J.S.A. 40:55-50 provides:
"This article [ i.e., Article 3. Zoning, N.J.S.A. 40:55-30 et seq. ] or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public ...