These matters have been consolidated and are before the court on final hearing.
Wickatunk Village, Inc., in its complaint in lieu of prerogative writs, challenges the validity of a statutory denial under N.J.S.A. 40:55-39.1 of a variance recommended by the board of adjustment under N.J.S.A. 40:55-39(d) to construct and operate a tertiary sewerage treatment plant in a residential zone. In the Chancery Division action Marlboro
seeks an injunction to prohibit the use of the treatment plant and for an order to move the plant.
Testimony was taken before the board of adjustment on the application for a variance. Wickatunk Village, Inc. is the owner of premises consisting of 42.5 acres located in an R-2 residential zone. It operates a mobile home trailer park on a 15-acre portion of the premises by virtue of a judgment of this court in Docket No. C-1641-57 (P.W.) adjudging the use of the 15 acres for mobile homes to be a nonconforming use.
At some time before April 15, 1970 Wickatunk constructed the tertiary sewerage treatment plant outside the 15-acre mobile home portion of the premises at a cost of approximately $60,000. The plant replaced septic tanks which had not been operating properly and through which raw sewerage had flowed into a stream known as Bailey's Brook. No building permit or variance was obtained. It is perfectly obvious that the municipal officials were fully aware of the construction while it was going on. The plant was inspected and approved by the executive officer of the township's Division of Health. Although the complaint in the Chancery Division action was filed April 15, 1970, on April 20, 1970 the Marlboro Township Municipal Utilities Authority adopted a resolution approving plans for the sewerage plant.
During the construction the township administrator visited the site, and other officials were aware of the construction. To move the sewerage plant would cost $30,000 and take six weeks, during which all 104 families in the trailer park would have to move out.
The board of adjustment adopted a resolution recommending to the governing body that a variance be granted.
The sewerage treatment plant as constructed was approved by the Division of Environmental Quality, New Jersey Department of Environmental Protection; by the New Jersey Department of Health and by the Division of Health of the township. After making basic findings of fact, the board of adjustment found that Wickatunk had shown
special reasons for the grant of the variance under N.J.S.A. 40:55-39(d) and had satisfied the negative criteria of the statute.
The governing body failed to take action on the recommendation, which resulted in a statutory denial ...