Before Judges Petrella, Conley and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 1999
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
This appeal by three associations of developers challenges an ordinance of the Township of South Brunswick (Township) which deals with maintenance of water detention basins. Essentially, the Township's ordinance provides for the continued "repairs and major maintenance" of detention basins and provides for responsibility to be assumed by either the Township or the private owner.
In June 1996, approximately eight years after its adoption in 1988, the ordinance was challenged in an action in lieu of prerogative writs by plaintiffs, three New Jersey associations: New Jersey Builders Association, Central Jersey Builders Association and New Jersey Shore Builders Association (collectively "the associations"). *fn1 The associations are represented to be not-for-profit corporations comprised of residential home builders, contractors and suppliers doing business in New Jersey. None of the associations are parties to any agreement with the Township. However, certain of their members are represented to have been affected by the ordinance.
The associations contend that the municipal regulations exceed the Township's authority under the Municipal Land Use Law (MLUL) and allow an unlawful exaction which bears no reasonable relationship to any lawful purpose or objective under the MLUL. The associations also assert that the regulations allow an unconstitutional taking of property and represent an ultra vires attempt by the Township to impose its governmental duties upon private parties. The associations requested release and return of all "escrow" deposits, *fn2 including interest collected by the Township under the regulations, to the builders and developers who made such deposits over the last eight years, even though none of them are parties to this lawsuit.
Thereafter, the parties cross-moved for summary judgment. When the motions were listed on January 23, 1998, before the Judge assigned to the matter, he indicated that he had a potential conflict due to his representation of one of the builders in the plaintiff associations before becoming a Judge. As a result, he transferred the issue raised by the Township relating to the standing of plaintiffs to challenge the ordinance to another Judge.
The second Judge decided the motions regarding plaintiffs' standing on the papers and ruled that the associations had standing, although the record before us contains no findings on this issue. The original Judge then took the case back, heard arguments on the cross-motions for summary judgment, and granted the associations' motion while denying that of the Township. The Judge declared the Township ordinance invalid and unenforceable in its entirety and ordered the Township to return "escrow" deposits and accrued interest within thirty days of the order to the entities that had paid the funds.
Although the associations' challenge raised several independent issues in attacking the subject ordinance, the Judge questioned the validity of the ordinance on grounds of unequal taxation, and as an ultra vires aspect of the municipality's taxation power. The Judge raised the unequal taxation issue because he felt that the residents of the Township would be paying for services that they were not getting. The Judge stated:
I am not resolving the case because of any sympathy I feel for the builders. The question is impacting the homeowners. Ultimately, there is an effort to subject them to a tax for services that they're not getting. And that, I think, that's where it primarily runs afoul.
I also think there is a Constitutional infirmity, that I don't have to address. Ultra vires, the Municipal Land Use, Section 53. I think it is inconsistent with the intent and the purpose of the Legislature that appears to deal with the legal services, legal taxing.
Although I don't criticize the municipality's attempt to lower its operating budget. I don't think you can do it in this fashion, without regard to an overall plan to deal with these issues, on a municipal-wide basis, not a development by development, homeowner by homeowner basis.
I think once you have a development, that takes drainage run-off from public entities, such as the streets or parks, or anything else, you're asking the homeowners to build up-front. But, ultimately, the homeowners to ...