On appeal from the Superior Court, Law Division, Monmouth County.
The Township of Marlboro (Marlboro or the Township) appeals from a summary judgment entered on behalf of New Jersey Shore Builders Association (NJSBA)*fn1 declaring that land developers did not have to pay for street lighting costs incurred on streets dedicated to the Township as regularly required in connection with the issuance of certificates of occupancy issued for homes. We affirm.
NJSBA challenged Marlboro's practice of requiring developers to pay the costs of electricity for lighting on those streets dedicated as a condition of subdivision or site plan approval, which have homes constructed proximate thereto that have been issued certificates of occupancy. In these cases, these streets have not yet been accepted by Marlboro and thus the posted performance bonds have not yet been released.
According to the parties' stipulation of facts, Marlboro receives electric service from Jersey Central Power and Light, (JCP & L) a duly franchised public utility. The Township's land development regulations provide that developers seeking subdivision or site plan approval for a proposed residential development must provide for the cost of construction and installation of underground subdivision electric facilities, to be constructed and installed by JCP & L. Generally, the equipment remains JCP & L's property, which includes the underground lines, lamp posts and other hardware for the street lighting as distinguished from the actual electricity which illuminates the street lights.
Marlboro does not inspect the subdivision electric facilities nor are they subject to its bonding requirements. The approximate
cost of electricity for two years is included in the calculation of the required performance bonds. Prior to the issuance of a certificate of occupancy for any dwelling in the development, the street lighting facilities must be completed and operational. The street lighting costs are deemed to be the developer's responsibility until the streets are accepted by Marlboro and the performance bond covering the street is released. Marlboro provides various services including police protection, fire, emergency services and code enforcement for those areas, but does not provide services such as roadway maintenance and repair, street cleaning, snow removal, ice abatement and fall cleanup, until the streets have been accepted.
In granting summary judgment the trial judge found no statutory or decisional authority which authorized Marlboro's practice of requiring the developer to pay lighting costs until the street is accepted. He stated that it is the municipality's decision when to illuminate the streets and it must pay for that electricity. Moreover, he held that "[t]he illumination of streets has nothing to do with the installation and/or repair of the roads in a development."
Marlboro argues that, although there is no such express authority the practice is logically consistent and constitutional, especially given the presumption of validity of its actions.
The plaintiffs argue simply that the Township's practice is beyond the scope of its delegated powers embodied in the Municipal Land Use Law (M.L.U.L.), N.J.S.A. 40:55D-1 et seq. Further, N.J.S.A. 40:55D-53(a)(1) does not permit street lighting costs to be a bondable improvement since the public utility will own the utility upon installation.
A municipality can exercise subdivision controls only by virtue of enabling legislation. Divan Builders v. Planning Bd. Tp. of Wayne, 66 N.J. 582, 593, 334 A.2d 30 (1975). Any exercise of that power must be consistent with such legislation. Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., ...