Kilkenny, Halpern and Lane. The opinion of the Court was delivered by Lane, J.A.D.
Plaintiffs appeal from a summary judgment declaring that Article IX, Section 8 of the Freehold Township Land Subdivision Ordinance is valid.
The first count of the complaint in lieu of prerogative writ sought a judgment compelling John T. Allen, Building Inspector of the Township of Freehold, to issue a certificate of occupancy for a particular dwelling constructed by plaintiffs in Section 3 of a development under construction by plaintiffs in the township. Allen's refusal was based upon Article IX, Section 8 of the Land Subdivision Ordinance. The complaint sought in the second count a declaratory judgment that the ordinance was invalid. During the course of the proceedings, a consent order was entered directing that the certificate of occupancy requested be issued and dismissing the first count.
In 1967 plaintiffs purchased 102 lots designated as Section 3 and Section 4 of a subdivision known as Green Tree at Freehold. Final approval of the proposed subdivisions had been obtained. To obtain final approval for Section 3, a bond in the amount of $121,755.28 and cash in the amount
of $13,528.37 was posted in accordance with the Subdivision Ordinance to guarantee the installation of the required subdivision site improvements.
An affidavit in support of the complaint stated that on December 6, 1969 plaintiff entered into an agreement to sell a residence to a Mr. and Mrs. Holloway. Closing of title was fixed for June 5, 1970. The residence had been approved by the building inspector as being constructed in accordance with the applicable building codes and township ordinances. Application for a certificate of occupancy was denied although before that time certificates of occupancy for 11 residences in Section 3 had been granted. The refusal to issue a certificate of occupancy was based upon Article IX, Section 8 and the fact that certain of the Section's site improvements had not been completed, including a portion of "the final top on street pavement," some concrete curbs and sidewalks, shade trees, monuments and concrete aprons. The estimate for the completion of these improvements was $22,085.50. At the time of the refusal, the municipality still held the performance bond and the cash deposit referred to above.
Article IX, Section 8 provides:
SECTION 8. ISSUANCE OF CERTIFICATE OF OCCUPANCY.
No dwelling shall be deemed habitable nor shall a certificate of Occupancy be issued by the Building Inspector unless all required improvements have been completed in the section for which final approval has been granted. Prior to the issuance of a Certificate of Occupancy, all improvements as set forth in Article VIII of this Ordinance shall have been installed including but not limited to the following: complete pavement (base and surface course, concrete curb, gutter, driveway and sidewalk), finish storm sewer system, connection to operative sanitary sewer system, water supply system, and source of electricity, landscaping, shade trees and monuments. The owner or subdivider shall have the right to make application to the Township Committee in respect to the completion of one or more of the required improvements set forth in Article VIII of this Ordinance, which application shall be in writing addressed to the Township Committee at least fourteen (14) days prior to the next regular meeting of the Township Committee. Upon receipt of such request, the procedure in connection with such application shall be as follows:
(a) The Township Committee may at its discretion allow the owner or subdivider an opportunity to be heard in respect to such application at a time and date to be set by the Township Committee.
(b) The Township Engineer shall, within five (5) days of receipt of the request of the Township Committee, report his findings in respect to the application of the owner or subdivider for a Certificate or ...