Plaintiffs seek a declaratory judgment that Cambridge Development Corporation (Cambridge) or its prospective purchaser may develop over 150 acres in a development known as Mill Lake Manor in Monroe Township in accordance with the zoning ordinance in effect in 1956, on 75' x 100' lots in the Residence B zone and on 100' x 150' lots in the Rural Residence zone. Minimum lot sizes were upgraded by a zoning amendment in 1957 to 100' x 100' lots in the Residence B zone and to 150' x 200' lots in the Rural Residence zone.
The ten years from 1956 to 1966 are a chronicle of sporadic minimal activity by the owners of Mill Lake Manor and acquiescence in the 1956 zoning status quo by the township. Preliminary subdivision approval for 1036 lots on 435 acres was granted by the planning board on April 27, 1956 and extended on February 10, 1959 until April 27, 1962 upon
the condition that something less than 10% of the entire tract be conveyed for school and other public purposes. After fulfillment of that condition and concurrence by the Middlesex County Planning Board, final approvals were granted by the planning board on April 19 and October 15, 1962. When Cambridge took title in March 1966, 13 model houses had been built and 37 other houses had been partly built. Plaintiffs are the trustees in liquidation of Cambridge.
Cambridge proceeded expeditiously. On April 29, 1966 it filed with the planning board two performance bonds for improvements. Upon its application the planning board adopted a resolution on May 4, 1966 requiring compliance by Cambridge with prior planning board resolutions and planning board and other municipal agreements with its predecessor in title. Cambridge constructed an on-site and off-site sanitary sewer system, a storm sewer system and a water utility and distribution system servicing other developments as well as its own. It sold off sections of the entire tract known as Mill Lake Manor to another developer, who built a total of 524 houses in conformity with the minimum lot sizes under the 1956 zoning. The remaining unimproved areas are in two large sections and one smaller section not contiguous, in the Residence B zone, and two large sections, separated by the Spotswood-Englishtown Road, in the Rural Residence zone.
The right of Cambridge or its prospective purchaser to continue the development of Mill Lake Manor under the 1956 zoning was challenged by the newly appointed township attorney in a letter dated January 20, 1970.
Initially this court holds that the purported three-year extension of the preliminary subdivision approval was ultra vires and void. Hilton Acres v. Klein , 35 N.J. 570 (1961) thus construes N.J.S.A. 40:55-1.18. In Hilton Acres the Supreme Court allowed the developer to apply for a final approval within the eight months remaining of the three-year period of the preliminary approval when the void extension of the preliminary approval was granted. To allow
Cambridge to reapply for a final approval for subdivision of the unimproved sections, within the remaining two and a fraction months of the three-year period of the preliminary approval when the void extension was granted in 1959, would be to revert 11 years in derogation of the final approval already granted to its predecessor in title.
Defendant township and planning board contend that the final approval was void because based upon a void preliminary approval, relying generally upon Hilton Acres, supra. The plaintiffs counter that the holding of Hilton Acres in sanctioning a grace period breathes life into the final approval, which was applied for and granted within six months after the decision in Hilton Acres , the first definitive authority that extensions of preliminary subdivision approvals are ultra vires and void. The final approval resolutions in fact refer to the preliminary approval in 1956, not to the extension of the preliminary approval in 1959.
Assuming the validity of the final subdivision approval in 1962, the next issue to be dealt with is whether the then owner's rights lapsed because of its lack of reasonable diligence and expedition in developing Mill Lake Manor from 1962 to 1966. The planning board's final approval on April 19, 1962 was conditional upon the posting of performance bonds by the then owner. This condition was met. Otherwise the record is meager as to any specific activities in the development of Mill Lake Manor from the second resolution of final approval on October 15, 1962 until the conveyance of the entire tract to Cambridge 3 I/2 years later. Various agreements and resolutions were entered into respecting sanitary and storm sewer system. Reliable Water Company was granted a franchise to operate a water works. Presumably the 13 model houses were built in a block off the Spotswood-Englishtown Road and ...