Divan Builders, Inc. v. Planning Bd. of Wayne Tp.

• Decision Date: 13 February 1973
• Citation: 122 N.J.Super. 508,300 A.2d 883
• Parties: DIVAN BUILDERS, INC., a New Jersey Corporation, Plaintiff, v. PLANNING BOARD OF the TOWNSHIP OF WAYNE and Mayor and Council of the Township of Wayne, Defendants.
• Court: New Jersey Superior Court

Page 508

122 N.J.Super. 508

300 A.2d 883

DIVAN BUILDERS, INC., a New Jersey Corporation, Plaintiff, v. PLANNING BOARD OF the TOWNSHIP OF WAYNE and Mayor and Council of the Township of Wayne, Defendants.

Superior Court of New Jersey Law Division.

Feb. 13, 1973.

Corrado, Corcoran & Sokalski, Totowa, for plaintiff (Ronald Sokalski, Totowa, appearing).

Hunziker, Hunziker & Stein, Paterson, for defendant Planning Board (Kenneth S. Stein, Paterson, appearing).

Michael C. Rudolph, Wayne, for defendant Mayor and Council.

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, 245 A.2d 336 (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 On-site improvements. Deerfield Estates, Inc. v. East Brunswick Tp., 60 N.J. 115, 124, 286 A.2d 498 (1972); Kligman v. Lautman, 53 N.J. 517, 536--537, 251 A.2d 745 (1969); Magnolia Development Co., Inc. v. Coles, 10 N.J. 223, 227, 89 A.2d 664 (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, 296 A.2d 653 (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 subject of appeal and, therefore, the Supreme Court did not consider disturbing it (at 564, 296 A.2d at 655).

The opinions in Deerfield Estates, Inc., supra, and Colonial Oaks West, Inc., supra, recognizing the authority of a municipality to require installation of on-site water main extensions by a subdivider 'in an appropriate case,' has limited application here.

The distribution of water is a proprietary function. Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N.J. 229, 233, 89 A.2d 667 (1952). Determinations based upon the financial condition of a municipal water utility, the supplier of the product, on the one hand, and the extent of reimbursement to consumers who are the developers and the ultimate purchasers of the lots, on the other hand, are not dispositive of the issues here.

We are here concerned with Off-site drainage in which municipal income is not involved, and the statutes must be examined to ascertain municipal authority to require payment for or contribution to the cost of such improvement installed by the municipality.

N.J.S.A. 40:55--1.20 provides that the planning board shall require 'in the Public interest that the tract shall be adequately drained' and shall be adaptable for the intended purposes 'without danger to health or peril from flood * * * erosion or other menace.' (Emphasis supplied.)

The amount of rainfall absorbed by the land is reduced in proportion to the extent of structures, roads, driveways and other impervious surfaces which cover a development. As the surface outflow increases in amount and intensity by such construction, 'flood' and 'erosion' may menace the plots in the subdivision as well as lands of others located on its borders. Also, if downstream flow is obstructed by an inadequate experior drainage system, the lots in the subdivision will be flooded in the back-up process.

In the opinion of the Appellate Division in Longridge Builders, Inc. v. Planning Bd., Princeton, 98 N.J.Super. 67, 236 A.2d 154 (App.Div.1967), a case involving off-site street improvements, we find this language:

It is entirely conceivable that a broader approach might have to be entertained in relation to drainage or the provision of water or sewerage facilities, for example. These essentials for a residential subdivision might in some circumstances call for off-site operations to produce acceptable on-site conditions. And those might possibly be within the contemplated board's discretion to require of the developer, a point we have no occasion here to determine. (at 75--76, 236 A.2d at 159.)

This court is satisfied that municipalities have the right to require protective drainage improvements to be constructed on-site and off-site as a condition precedent to the approval of a subdivision which will be fully integrated with the community at large, particularly where the previous retention of water in a substantial pond on the premises will no longer be accommodated according to the subdivision plan. The subdividing of land is a privilege to which the Legislature has attached certain conditions. One who seeks the advantage of the privilege must comply with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the safety and general welfare of the lot owners in the subdivision and of the public. City of Buena Park v. Boyar, 186 Cal.App.2d 61, 8 Cal.Rptr. 674 (D.Ct.App.1960).

Our courts have refrained from expressing views as to planning board authority to require installation of on-site or off-site improvements by subdividers where municipalities failed to adopt ordinances establishing standards and procedures for plat approval. Longridge Builders, Inc. v. Planning Bd., Princeton Tp., 52...