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Divan Builders Inc. v. Planning Board of Township of Wayne

Decided: February 13, 1973.


Schwartz, L., J.d.c., Temporarily Assigned.


Plaintiff, an applicant for final subdivision approval, brought this action against the governing body and the Planning Board of Wayne Township to recover the sum of $20,000 which it was required to contribute towards the construction cost of an off-site municipal drainage facility as a condition precedent to receiving approval.

The facts, as stipulated in this case, are that preliminary subdivision approval had been granted to plaintiff by the

Planning Board of Wayne Township in 1970 for a tract of land to be divided into 31 lots. A substantial portion of the premises was covered by a pond in which water had been temporarily withheld before it flowed from the premises by a conduit. The developer's plans, approved by the municipal engineer and the planning board, called for the draining of the pond and the piping of water as it entered the premises from upstream, so that it flowed through the development and into the previously existing drainage facility on its downstream border.

In 1972 the municipality adopted an amendment to its subdivision ordinance known as ordinance 69. Among other matters, it provided as a condition precedent to subdivision approval, site plan approval and issuance of building permit, that applicants post performance bonds or make cash payments towards off-site public improvements in whole or in part made necessary by the applications. An allocation of costs was provided depending upon the extent of benefit conferred on the plots which were the subject of the applications, the cost of the improvement, the extent to which the facility was made necessary to protect neighboring properties as the result of the proposed plans and other conditions later adverted to in this opinion.

When plaintiff subsequently applied for final subdivision approval, in accordance with ordinance 69 the planning board imposed a condition precedent that it make payment of $20,000 representing its allocation toward the cost of a $250,000 off-site drainage system the municipality planned to construct. The system would accommodate the increased run-off from plaintiff's property as well as drainage from neighboring properties and properties located downstream in the drainage basin.

In order to secure approval plaintiff delivered the sum of $20,000. A similar payment was made by a neighboring developer who had applied for site plan approval.

The established policy of the municipality is to impose a required contribution from each of the undeveloped properties

in the drainage basin in accordance with ordinance 69 at such time that the owners thereof apply for subdivision approval, site plan approval or a building permit.

Existing developed properties in the drainage basin will be protected by the proposed drainage system from increased water flow that will emanate from the plaintiff's lands and lands of other as yet undeveloped properties, by reason of their development of the same, but the municipality contends that the already developed properties in the area will not be benefitted by the new drainage system as the existing system has been adequate for their purposes.

Three months after plaintiff's application was approved the governing body adopted ordinance 108, a general improvement ordinance. By its terms the $250,000 cost of this particular public improvement will be defrayed by the $40,000 required from the two developers, and bonds will be sold which will be retired annually as a municipal expense, in payment of the balance of the cost of the project.

Our Supreme Court has previously refrained from passing on the question of whether the Planning Act authorizes a municipality to impose upon a subdivider, as a planning matter, the duty to provide off-site improvements, an appropriate case not having been presented to the court. Longridge Builders, Inc. v. Planning Bd., Princeton Tp. , 52 N.J. 348, 350 (1968).

Since the adoption of the Planning Act of 1953 (N.J.S.A. 40:55-1.1 et seq.) it has been the accepted rule that a municipality may, by a proper implementing ordinance, condition approval of a subdivision application upon a developer installing most onsite improvements. Deerfield Estates, Inc. v. East Brunswick Tp. , 60 N.J. 115, 124 (1972); Kligman v. Lautman , 53 N.J. 517, 536-537 (1969); Magnolia Development Co., Inc. v. Coles , 10 N.J. 223, 227 (1952).

N.J.S.A. 40:55-1.21 provides:

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 such other subdivision improvements as the municipal governing body may find necessary in the public interest.

The municipality may also require a maintenance guarantee for a period not to exceed 2 years after final acceptance of the improvement, in an amount not to exceed 15 per cent of the cost of the improvement or of the original installation. [Emphasis supplied]

The trial court in Colonial Oaks West, Inc. v. East Brunswick Tp. , 61 N.J. 560 (1972), found that off-site water mains, required by the planning board to be installed by the developer, under the particular circumstances as they appeared from the record, were "in a real sense an on-site improvement." This explicit factual determination was not the ...

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