At issue is the validity of Bernards Township's off-tract improvement ordinance. Resolution of this issue requires construction of N.J.S.A. 40:55D-42, a section of the Municipal Land Use Law (MLUL) which authorizes municipalities to require developers to contribute to certain off-tract improvements.
The ordinance, no. 672, establishes a program to determine the amount which must be paid by a developer for off-tract improvements as a condition of preliminary subdivision or site plan approval. The ordinance is not a model of clarity. A complete understanding of the program and its implications requires that it be read with the traffic circulation and utility service plan elements of defendant's master plan and with the township's off-tract improvements program as well as the appendices
made a part of the ordinance. At the outset the court's discussion of the ordinance will be limited to off-tract street improvements though the ordinance also includes drainage facilities.
The township's area is 24 square miles. Within its boundaries are 16 miles of state highways, 21 miles of county roads and 77 miles of township streets and roads. Interstates 287 and 78 traverse the township. In 1982, as a predicate to the adoption of the ordinance, the township determined that full development would require the improvement of certain roads within the township. The roads to be improved are listed in table 1 of the appendix to the ordinance and include county as well as township roads. The township further determined that the requisite improvements will cost $20,000,000 at 1982 prices. Utilizing the Trip Generation Handbook published by the Institute of Transportation Engineers the appendix to the ordinance establishes trip generation rates for six basic uses: single family, multi-family, senior citizen, general office, professional office and retail. For example, a single-family residence will generate 1.1 p.m. peak-hour trips. Specifically it will generate 0.7 arrivals and 0.4 departures. Similarly, a general office will generate 1.63 p.m. peak-hour trips per 1,000 square feet. A development of 100 single-family residences will generate 110 p.m. peak hour trips. The township determined that at full development 23,700 p.m. peak-hour trips per day will be generated. It was further determined that development in place in 1982 generated 7,450 p.m. peak-hour weekday trips. Utilizing simple mathematics the township determined that the share of the cost of the roadway improvement program to be borne by general township revenues is 31.4% (7,450/23,700)
and the share to be borne by future developers is 68.6%. The estimated cost for the improvement of municipal roads is $14,800,000. The general revenue share, i.e., the share allocated
to existing development is 31.4% or $4,547,000. The balance of $9,933,000 is allocated to new development as is the entire projected cost of improvements to county roads which are to be made by the township in the amount of $5,520,000. Therefore, the total cost to be borne by future development is $15,453,000. Dividing that amount by the 16,250,000 p.m. peak hour trips to be generated by all future development yields an assessment of $951 per trip generated by all new development. The developer of 100 single-family homes resulting in 110 trips must pay Bernards Township $104,610 as his share of the cost of the transportation network improvement program. This assessment would be in addition to the cost of off-tract improvements necessitated or required by the new development where no other property owners receive a special benefit.
In a non-residential context the builder of four retail stores of 1,000 square feet each would pay an assessment of $54,770.60 because each 1,000 square feet of retail space generates 14.40 p.m. peak-hour trips.
Plaintiff argues that this program is not authorized by the statute and is ultra vires. Resolution of that issue requires construction of N.J.S.A. 40:55D-42 (hereinafter referred to as § 42). That section was adopted in 1976 as part of the MLUL and provides:
The governing body may by ordinance adopt regulations requiring a developer, as a condition for approval of a subdivision or site plan, to pay his pro-rata share of the cost of providing only reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, located outside the property limits of the subdivision or development but necessitated or required by construction or improvements within such subdivision or development. Such regulations shall be based on circulation and comprehensive utility service plans pursuant to subsections 19b.(4) and 19b.(5) of this act, respectively, and shall establish fair and reasonable standards to determine the proportionate or pro-rata amount of the cost of such facilities that shall be borne by each developer or owner within a related and common area, which standards shall not be altered subsequent to preliminary approval. Where a developer pays the amount ...