delivered the opinion of the Court.
Access to sewer service is vital to any major development of property. In
First Peoples Bank v. Township of Medford,
we held that a municipality cannot delegate the exercise of its land-use authority to private parties by allowing them to purchase and hoard unused sewer rights, thereby stifling development by those who are prepared to build. 126
N.J.
413, 420-21,
Plaintiff 388 Route 22 Readington Realty Holdings, LLC is seeking to construct a
Plaintiff demanded that the Township — in accordance with a municipal ordinance governing allocation of sewer rights — recapture sufficient sewer capacity to allow its construction project to proceed. Consistent with its policy of not repurchasing capacity, the Township declined to do so. Plaintiff then filed a complaint in lieu of prerogative writs against the Township and multiple private entities to compel the transfer of allocated but unused sewer capacity. Plaintiff claimed that the municipal ordinance addressing the allocation of sewer capacity was invalid either on its face or as applied by the Township.
On cross-motions for summary judgment by the parties, the trial court affirmed the validity of the ordinance. The court, however, determined that the Township’s blanket policy of not recalling unused sewer capacity violated the dictates of First Peoples. The court issued a writ of mandamus ordering the Township to exercise its discretion under its ordinance and to provide “a reasoned basis for refusing to recapture” the unused capacity held by multiple private entities.
The Appellate Division reversed. Although the Appellate Division agreed with the trial court that the Township “simply relied on a policy of not re-taking sewer rights granted by contract,” it concluded that plaintiff could not overcome the presumption of validity that attaches to municipal decision-making.
We now conclude that the Appellate Division erred. As the trial court held, the Township cannot meaningfully exercise its discretion whether to repurchase sewer capacity unless it examines the reasons given by each entity for not using capacity assigned to it. A policy of not recapturing unused sewer capacity is the functional equivalent of a moratorium on development. We approve of the sound approach taken by the trial court, requiring the Township both to undertake a detailed analysis of the unused capacity in the hands of private parties and to explain whether any of that capacity can be recalled.
I.
We now review the relevant parts of the record on the summary-judgment motions.
In December 2007, plaintiff purchased property and a warehouse located at 388 Route 22 West in Readington Township. The wastewater at that site is serviced by a septic tank that allows for a maximum of 2000 gpd of capacity. 1 The Township rezoned plaintiffs property from the Mixed-Use District to the Business District, where retail and restaurant uses are permitted. Plaintiffs septic tank does not have sufficient capability to process the wastewater generated for the uses plaintiff proposes.
Plaintiffs property is in an area serviced by the Sewerage Authority, which manages wastewater for Readington and
Around 1999, the Sewerage Authority began the expansion of its plant capacity to allow the treatment of an additional 320,000 gpd of Readington’s wastewater. As a result of the plant expansion, Readington Township was allocated, in all, approximately 939,000 gpd of sewer capacity. The Township agreed to pay the Authority $6,024,704 for the increased capacity. To finance the project, the Township relied on private investment. The Township offered landowners the opportunity to purchase portions of the 320,000 gpd of increased capacity. In response to the offering, to name a few, Merck Sharpe & Dohme Corporation purchased 141,900 gpd of capacity for $2,196,764, Bellemead Development Corporation purchased 58,746 gpd of capacity for $1,106,187, and Readington Commons, LLC purchased 7628 gpd of capacity for $143,635. The prior owner of plaintiffs property declined to invest in future sewer capacity.
Each landowner purchasing future sewer capacity entered into a sewer allocation agreement with the Township. The Township’s “Sample Sewer Allocation Agreement,” in part, provides:
Should Developer not begin construction on the aforementioned properties within two (2) years of the date of this agreement, then the Township shall have the option to terminate this agreement and all capacity assigned herein under shall be returned to the Township for reallocation at the discretion of the Township.
The sample allocation agreement — in compliance with the sewer allocation ordinance — places a temporal limit on the right of a landowner to hold on to unused capacity.
The allocation agreements with Merck, however, do not follow the protocols in the ordinance or sample allocation agreement. Merck’s 2003 and amended 2008 sewer allocation agreements allow Merck to maintain unused sewer capacity for the periods the Township extended Merck’s site plan approvals for proposed construction in Readington. A past approval ran from 1988 to 2008, and the current approval runs from 2008 to 2018. Merck’s agreements have barred the Township from recapturing unused capacity for a period lasting at least fifteen years. 2
The typical allocation agreement provides that the landowner pay a certain sum for unused sewer capacity annually. The full annual amount was due the third year after acquisition. The first and second year payments were set at one-third and then two-thirds of the full amount annually due. For example, Merck agreed to pay $48,720 the first year, $97,440 the second year, and then $146,160 annually for as long as the allocated gallonage remained unused.
As of December 2010, of the 322,009 gpd of unused capacity, 141,900 was held by
Defendants have not proceeded with construction projects for a variety of reasons. One reason given by some defendants has been the downturn in the economy.
By ordinance, the Township provides the methodology for allocation of sewer capacity to landowners and for the recapturing of unused capacity. Readington Township Code § 187-26 states:
A. Order of priority; reserves.
(1) By existing joint agreement with the Readington Lebanon Sewerage Authority, the Township of Readington has a total sewer allocation of 935,000 gpd. Upon study by the Township, there is a limited amount of sewer capacity in Readington Township at the present time. Any remaining capacity from Read-ington’s portion of its allotted capacity in the Readington Lebanon Sewerage Authority sewer service area shall be allocated in the following order of priority, subject to availability:
(a) First, to those projects which will enable the Township to meet its future Mount Laurel affordable housing obligations; and
(b) Secondly, to remedy those properties within the sewer service area which constitute an “emergency” due to failing septic systems.
(2) The Township reserves the right to keep that portion of sewerage capacity needed for “reserve” to meet NJDEP requirements.
B. Allocations for sewer capacity from Readington’s allotted portion of sewer capacity shall be made by the Readington Township Committee upon written agreement to be entered into with the applicant, after the allocation request has been reviewed and a favorable recommendation has been made by the Readington Township Sewer Advisory Committee.
C. In the case of those development projects which have not received an approval by the appropriate township board having jurisdiction at the time a request for gallonage is made, allocation agreements shall provide that if the applicant does not make formal application to the appropriate township board within two years of approval of the allocation, then the Township Committee may, in its discretion, terminate the agreement. If within two years after preliminary approval, construction has not commenced, the Township Committee may, at its discretion, terminate the agreement. The agreement may be extended upon application to the Township if there is a showing of good cause, at the option of the Township Committee.
D. Applicants who received capacity allocations under this section shall enter into a sewer plant expansion developercontribution agreement which is intended to cover the Township’s share of the portion of the costs of expanding the [Sewerage Authority] treatment plant until such time as those costs have been satisfied----
E. Allocation of sewer capacity may not be transferred from the owner without prior approval of the Readington Township Committee, upon review and recommendation of the Readington Township Sewer Advisory Committee.
In March 2010, plaintiff wrote to the Readington Township Committee and the Readington Sewer Advisory Committee requesting that 388 Route 22 be permitted to hook up to the Authority’s sewer system and gain access to approximately 10,000 gpd capacity. Plaintiff expressed its belief that the Township possessed sufficient sewer capacity to accommodate plaintiffs request. Alternatively, in the event that all sewer capacity had been allocated, plaintiff stated that Readington should buy back unused capacity from property owners who had “not made formal application for development of [their] properties” or who had “failed to commence construction of improvements within two years after receipt of preliminary approval from the appropriate Township Board.” In making this demand for the buyback of unused capacity, plaintiff relied on paragraph C of the Readington Township sewer allocation ordinance. The Readington Township Committee replied that it did “not wish to terminate any of its existing sewer agreements.”
On August 4, 2010, plaintiffs attorney and professional planner appeared before the Readington Sewer Advisory Committee, describing plaintiffs plan to develop the property at 388 Route 22 into retail space and a restaurant. They requested a hookup to the sewer system and 11,260 gpd of wastewater capacity. The Committee’s chairman replied that all capacity was either used or reserved by property owners who financed the sewer plant’s expansion. He stated that the Township was bound by contracts with those property owners, although the ordinance allowed for an owner to “voluntarily” give up capacity. The chairman made clear that “the policy of this board and the policy of the Township Committee has been not to take any capacity back.” The chairman finally noted that his committee’s recommendation was advisory and that the Township Committee would make the final decision.
On September 20, 2010, plaintiffs attorney appeared before the Township Committee and requested 11,260 gpd of sewer capacity for plaintiffs project. He indicated that plaintiff had contacted fifteen property owners, and none were interested in selling their nnnsed capacity. The attorney noted that plaintiff would pay the holder its costs in acquiring and retaining the unused capacity. Nevertheless, Committee members expressed concern about breaching contracts with landowners holding unused capacity.
By letter dated October 14, 2010, the Township Committee advised plaintiff that there was no sewer capacity available. The Committee invited plaintiff to present “a conceptual plan, either through the Planning Board or Board of Adjustment, whichever is applicable, ... and that the application would be conditioned on obtaining a suitable solution to wastewater.”
II.
A.
In November 2010, plaintiff filed its lawsuit seeking an order compelling the Township to recapture 11,260 gpd of unused sewer capacity for its project. Plaintiffs complaint in lieu of prerogative writs named as defendants Readington Township,
Plaintiff and defendants moved for summary judgment. The trial court — the Honorable Peter A. Buchsbaum, J.S.C. — remand ed the matter to the Township Committee to “review the reasoning set forth in its prior rejection” of plaintiffs request for sewer capacity and to “provide a statement of reasons as a supplement to its decision.”
In response to the remand order, the Township Committee held a public hearing on July 5, 2011 and issued a resolution denying plaintiffs request for sewer capacity. The resolution referenced letters received from defendants Merck, Readington Commons, Bellemead, Fallone, and Urb-Fi Development Corp., which recited their allocation agreements with the Township and described the development status of their projects. Those and other defendants objected to the transfer of any of their unused capacity to plaintiff.
In justifying its refusal to recapture unused sewer capacity, the Township Committee adopted in the resolution “the full contents and arguments of the listed correspondence submitted by various defendants.” The Township Committee gave further reasons for the denial of plaintiffs request: (1) all excess capacity held by the Township is reserved for affordable housing and emergencies; (2) the sewer ordinance allowed the Township to extend its sewer allocation agreements with defendants for “good cause” and, having done so, the Township did not act unreasonably or arbitrarily; (3) several defendants “have development approvals which fall under the protections afforded by the Permit Extension act,” a separate reason constituting “good cause” for continuing the allocation agreements; (4) the previous owner of plaintiffs property expressed no “interest in acquiring sewer capacity at the time the Township announced that it was available for purchase”; (5) Township Committee members did not believe that it was “in the public interest to force the termination of ... existing sewer agreements”; and (6) plaintiff had not determined whether the holder of any unused capacity had an “interest in voluntarily selling their capacity back to the Township.”
B.
The trial court held that Readington’s sewer ordinance passed muster under
First Peoples, supra,
126
N.J.
413,
On the other hand, the court found that the ordinance as applied by the Township
According to the trial court, the Township’s obligation is not dependent on whether plaintiff can “beg, borrow or cadge capacity from others” but rather “to terminate agreements where it is appropriate to do so.” It found that the Township’s no-buy-back policy “functioned as a de facto moratorium on any development which requires sewerage.”
As a remedy, the court ordered that the Township undertake, within ninety days, a review of the unused sewer capacity listed by plaintiff and provide “a reasoned basis” for not recapturing that capacity.” 4 It cautioned that agreements between the Township and defendants granting extended sewer rights may not control when a present holder of capacity has seemingly reserved the right indefinitely and a “party seeking sewer allocation is ready to imminently make use of those rights.” The court acknowledged, however, that the application of the Permit Extension Act might limit the Township’s discretion.
Plaintiff and several defendants appealed.
C.
In an unpublished opinion, the Appellate Division affirmed the Law Division’s rejection of plaintiffs facial challenge to the ordinance but reversed the Law Division’s finding that the Township Committee did not give a reasoned basis for not recapturing sewer capacity for plaintiffs project.
Like the trial court, the appellate panel was satisfied that the ordinance provided “standards sufficient to insure ‘fair and reasonable exercise’ of the discretion granted,” quoting
First Peoples, supra,
126
N.J.
at 419,
The panel, however, determined that the Township Committee did not abuse its discretion
We granted plaintiffs petition for certification.
388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington,
217
N.J.
287,
III.
A.
Plaintiff advances several arguments: (1) the sewer allocation ordinance is invalid because it does not set forth adequate standards to guide the Township in determining when unused sewer capacity should be recaptured; (2) the Township’s blanket refusal to recall unused sewer capacity violates principles set forth in First Peoples, amounts to an unconstitutional delegation of governmental authority over land use into the hands of private parties, and constitutes an unlawful moratorium on development; and (3) the Appellate Division mistakenly ratified the Township’s policy on the erroneous grounds that plaintiff “should have presented a more definitive plan for its proposed development,” the holders of sewer rights expended considerable money to acquire the allocated capacity, and the Permit Extension Act expresses the Legislature’s view that sewer agreements should be extended in periods of economic downturn. With regard to the last of those points, plaintiff emphasizes that developers who paid for allocations of sewer capacity did so “with full knowledge of the recapture rights of the Township under the Ordinance which, in many, if not all, instances, were embodied in the allocation agreements themselves.” Plaintiff also maintains that neither the Township nor any court has determined whether any particular sewer allocation attached to a development project is protected by the Permit Extension Act. Last, plaintiff contends that the Appellate Division erred by dismissing its claim that the Township has understated its available capacity — a claim that has never been adjudicated.
B.
Defendants individually and collectively urge this Court to affirm the Appellate Division. First, they submit that the sewer allocation ordinance is valid on its face for the reasons given by the Appellate Division: the ordinance allows the Township to terminate or extend allocation agreements for good cause, grants the Township authority over the transfer of sewer rights, sets benchmarks for the recapture of capacity, and establishes an order of priority for allocating available capacity.
Defendants also maintain that the Township Committee did not act unreasonably or arbitrarily in declining to recall sewer capacity allocated to property owners who funded the sewer plant expansion, who
Defendants contend that the Township rightly relied on the policy objective of “the Permit Extension Act as well as the explicit protections afforded by the Act in finding good cause to extend and not recapture the sewer allocations,” particularly given the downturn in the economy that stalled development projects. Defendant Merck, in particular, claims that the Township is bound to honor its contractual obligations and that an impairment of those obligations would violate its rights. Merck points out that its agreement bars the Township from recalling sewer capacity before Merck’s site plan approvals expire in 2018. Merck maintains that any recapture of its “unused sewer capacity prior to that time would unlawfully vitiate Merck’s site plan approvals, resulting not only in a breach of its contracts with the Township, but also an unconstitutional taking.”
Finally, various defendants represent that they are currently using or in the process of using their allocated sewer capacity because their projects are either completed or underway.
IV.
A.
Our primary task here is to resolve issues of law: whether the Readington sewer allocation ordinance is facially valid, and whether the ordinance as applied by the Township Committee constitutes an improper delegation of land-use authority to private parties in violation of
First Peoples.
In construing the meaning of a statute, an ordinance, or our case law, our review is de novo.
Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins. Guar. Ass’n,
215
N.J.
522, 535,
This appeal comes to us from a grant of summary judgment in favor of defendants, resulting in a dismissal of plaintiffs action in lieu of prerogative writs. In this procedural posture, plaintiff, as the non-moving party, is entitled to “the benefit of all favorable evidence and inferences presented in the record before us.”
Murray, supra,
210
N.J.
at 584-85,
With those principles in mind, we begin with a review of the law that controls the distribution of sewer rights.
B.
The Legislature has the constitutional authority to delegate to municipalities the “police power” to enact ordinances governing “the nature and extent of the uses of land,”
N.J. Const.
art. IV, § 6, ¶ 2, and the Legislature has done so through the passage of the Municipal Land Use Law (MLUL),
N.J.S.A.
40:55D-1 to -163. The constitutional power delegated to municipalities to enact land-use regulations,
Like all ordinances, Readington’s sewer allocation ordinance is entitled to a presumption of validity, and the “party challenging the ordinance bears the burden of overcoming that presumption.”
See Rumson Estates, Inc. v. Mayor & Council of Fair Haven,
177
N.J.
338, 350,
Courts must also pay deference to the decision-making of municipal bodies, recognizing that they possess “peculiar knowledge of local conditions [and] must be allowed wide latitude in the exercise of delegated discretion.”
Kramer v. Bd. of Adjustment, 45 N.J.
268, 296,
Specific to this case, “a sewer ordinance should withstand a challenge unless it is inequitable, unfair, or lacks adequate standards to insure the fair and reasonable exercise of municipal authority.”
First Peoples, supra,
126
N.J.
at 419,
In assessing the validity of Readington’s sewer ordinance and the Township’s application of that ordinance, we are not addressing novel issues. We are returning to issues that we reviewed in First Peoples, and therefore a discussion of that case will help guide us here.
In
First Peoples,
Medford Township financed the expansion of its sewage plant through the sale of sewer permits that were available on an equal basis to all developers.
Id.
at 415-17,
it would better serve both the Township and property owners if it contained more specific standards defining the conditions under which permits would be subject to repurchase. Such standards could appropriately include the criteria the municipality will apply when exercising its rights to repurchase permits and a formula for more closely correlating the issuance of building permits and sewer permits. In the absence of such standards, the municipality runs the risk that in another case the ordinance might be found vulnerable as applied.
[.Ibid.]
Significantly, in
First Peoples,
no one disputed that “the Township must retain sufficient control to assure that sewer permits are either used or repurchased so that others may use them.”
Id.
at 420,
We nevertheless rejected the plaintiff’s as-applied challenge to the ordinance, finding nothing to suggest that Medford had “acted arbitrarily in deciding whether to exercise its repurchase option.”
Id.
at 423,
With those principles in mind, we now turn first to the facial challenge to Readington’s sewer allocation ordinance and then its application of the ordinance to this case.
V.
A.
We reject plaintiffs challenge to the ordinance itself. We find that Readington’s sewer allocation ordinance provides “adequate standards to guide the exercise of municipal discretion when considering the repurchase of permits.”
First Peoples, supra,
126
N.J.
at 421,
First, the ordinance sets temporal limits on the right of a property owner to keep unused sewer capacity. The Township has the discretion to terminate an allocation agreement and repurchase capacity if a
As was true in
First Peoples, supra,
the ordinance here was not “exquisitely drafted.”
See
126
N.J.
at 422,
Plans for the treatment of wastewater is a critical component of any development project, for without sewer approval no development project can go forward.
Field v. Franklin Twp.,
190
N.J.Super.
326, 328-35,
We conclude that the sewer allocation ordinance — when read with the commonsense considerations implied within the enactment — provides adequate guidelines for the Township to exercise its discretion whether and when to repurchase sewer capacity.
We next turn to plaintiffs argument that the ordinance, as applied, violates the dictates of First Peoples.
B.
In
First Peoples, supra,
we did not find evidence that Medford had acted arbitrarily in deciding whether to exercise its option to repurchase sewer capacity. 126
N.J.
at 423,
Based on the summary-judgment record before us, it is apparent that, despite its ordinance, Readington maintains a blanket policy of not repurchasing unused sewer capacity allocated to developers. The Chairman of the Sewer Advisory Committee told plaintiffs attorney that “the policy of this board and the policy of the Township Committee has been not to
Approximately one-third of Readington’s entire sewer capacity — 322,009 gpd — is not in use. That unused capacity is largely in the hands of a relatively small number of private entities. Currently, Merck has 141,900 gpd and Bellemead has 66,060 gpd of unused sewer capacity — capacity allocated for more than a decade but still not in use. Both companies received approvals for their development projects in the late 1980s. That sewer capacity was allocated by contracts to private entities that financed the plant expansion project and was paid for at considerable expense cannot be the end of the analysis. Otherwise, the ordinance requiring Readington to exercise its discretion in recapturing sewer capacity would be meaningless. Those entities that purchased unused capacity did so knowing that the ordinance placed potential temporal limits on how long that capacity could be held in reserve and gave the Township the authority to recapture unused capacity for distribution to developers with projects ready to go. The ordinance made clear that sewer rights were not to be held in perpetuity. That other landowners did not participate in purchasing capacity to help finance the plant expansion may indicate nothing more than that they did not have a need for sewer capacity at the time.
The Township Committee invited plaintiff to present “a conceptual plan” of its development project to the appropriate land-use board, adding “that the application would be conditioned on obtaining a suitable solution to wastewater.” But given the Township’s stated policy not to recapture sewer capacity, the presentation of that plan would have constituted an exercise in futility. A developer may be hesitant to expend great sums of money to secure preliminary approvals for a development project that has no prospect of securing necessary sewer capacity. Plaintiff can hardly be faulted for deciding that judicial relief was the only viable option.
Plaintiff identified the entities that were holding unused capacity and contacted approximately fifteen of those entities, inquiring whether they would relinquish some of their unused capacity. The opposition to this lawsuit is the ultimate testament to defendants’ unwillingness to freely give back any of their unused capacity.
The Appellate Division placed on plaintiff the burden of showing that defendant developers were acting “without good cause for delay” by not voluntarily surrendering their sewer rights for the fair value offered by plaintiff. But that defeats the purpose of the ordinance and of the policy of the MLUL, which is to have the Township exercise its decision-making authority in land-use matters. One of the objectives of the sewer allocation ordinance was to ensure that the Township exercised discretion, when appropriate, to recapture unused capacity and to avoid “the improper
delegation of access to the sewer system to private landowners who, by purchasing permits, could prevent other owners from developing their land.”
See First Peoples, supra,
126
N.J.
at 420-21,
We substantially agree with the conclusions that Judge Buchsb-aum reached from the summary-judgment record. In declining to recapture unused sewer capacity for plaintiffs project, the Township in its resolution incorporated by reference, wholesale and uncritically, the arguments of the developer defendants. That approach suggests that the Township had effectively delegated its land-use authority to private entities. The resolution failed to analyze development by development why none of the unused capacity — after years of lying idle — could be recaptured.
The resolution also failed to analyze which developments, if any, fall under the dictates of the Permit Extension Act, N.J.S.A. 40:55D-136.1 to -136.6. The Permit Extension Act tolls the expiration date of certain land-use approvals for a period of time “due to the present unfavorable economic conditions.” N.J.S.A. 40:55D-136.2(m). The Act covers “an agreement” between a developer and municipality “for the use or reservation of sewerage capacity.” N.J.S.A. 40:55D-136.3. Admittedly, the Permit Extension Act would take precedence over an ordinance and therefore might limit the Township’s discretion.
Last, and most significantly, the resolution did not give a “reasoned explanation” for the Township’s failure to exercise discretion, as required by its own ordinance. The Township and defendant developers cannot contract away their obligation to comply with the law — whether it is First Peoples, the MLUL, or the Readington sewer ordinance. Private parties do not have a right to hoard unused sewer capacity indefinitely and therefore effectively impose a moratorium on development. As a best practice, we suggest that the Township maintain updated records of the unused capacity held by private parties so that it can exercise its discretion, when necessary, with current information. In addition, a property owner seeking capacity should have access to data that is necessary to making an informed decision whether to proceed with a development plan.
We adopt the thoughtful approach taken by Judge Buchsbaum. We order the Township Committee, within ninety days, to undertake a critical review of the unused capacity identified by plaintiff and to determine whether any such capacity can be recaptured from defendants to satisfy plaintiffs development needs. The Committee should consider the factors outlined earlier to guide the exercise of its discretion. We add that if a property owner, presently holding a substantial amount of unused capacity, has moved its business operations to another municipality and there is no realistic prospect that approvals previously acquired will result in a project coming to fruition, that factor must be given significant weight in deciding whether to recall capacity.
Last, we address when a party has a sufficient stake to purchase unused capacity. Needless to say, the Township should not recapture unused sewer capacity from one party and allow its sale to another party that is unlikely to put that capacity to use in the near future. A party that has received preliminary site plan approval obviously will have a stake in requesting capacity, but we are loath to impose that as the necessary test because of the significant costs involved in securing such an approval. Here, the Township offered plaintiff the opportunity to present a concept
VI.
For the reasons given, we affirm the Appellate Division’s judgment upholding the trial court’s dismissal of plaintiffs facial challenge to the Readington Township sewer allocation ordinance. We reverse, however, the Appellate Division’s judgment rejecting the trial court’s determination that the ordinance, as applied, violates principles espoused in First Peoples. The Township Committee shall undertake a critical review of the unused capacity identified by plaintiff and determine within ninety days whether any capacity can be recaptured to satisfy plaintiffs development needs. We remand to the trial court for proceedings consistent with this opinion.
Chief Justice RABNER and Justices PATTERSON, FERNANDEZ-VINA, and SOLOMON join in Justice ALBIN’s opinion. Justice LaVECCHIA and Judge CUFF (temporarily assigned) did not participate.
For affirmance in part/reversal in part/remandment — Chief Justice RABNER and Justices ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON — 5.
Not Participating — Justices LaVECCHIA and Judge CUFF (temporarily assigned) — 2.
Notes
N.J.A.C. 7:9A-1.8 prohibits the use of a septic system to manage a wastewater capacity of over 2000 gpd without permission from the New Jersey Department of Environmental Protection.
In 1988, Merck obtained preliminary site plan approvals for projects to be constructed on its Readington property. The approvals were set to expire in twenty years. In 2008, Readington granted Merck a ten-year extension of its preliminary site plan approvals, and the Township agreed that it would not seek to recapture any unused sewer capacity until 2018.
In 1988, Bellemead was granted preliminary and final site plan approval for its "Halls Mills Farm” development project. The approval was set to expire in eight years. Bellemead was granted multiple extensions with the final extension set to expire in July 2010. As a result of the Authority's plant expansion, Bellemead was allocated 58,746 gpd of capacity, making its total capacity 110,746 gpd. Bellemead is using 44,686 of that gallonage, while 66,060 gpd— the amount required to operate its Halls Mills project — remains unused.
The court excepted from the order defendants Country Classics of Reading-ton and Readington Commons because they evidently are using their capacity.
The plaintiff also unsuccessfully sought an order requiring Medford to expand the capacity of the sewage plant.
Id.
at 418, 423-24,
The concept plan suggested by the Township resembles the informal review available under N.J.S.A. 40:55D-10.1. A planning board is permitted to conduct "an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development.” N.J.S.A. 40:55D-10.1. An applicant can "benefit from the exchange of ideas and expression of the board's preferences” without having to "expendf] the significant amounts of money required in the preparation of development plans and applications.” 36 New Jersey Practice, Land Use Law § 13.10 (David J. Frizell & Ronald D. Cucchiaro) (3d ed.2014). However, importantly, neither the board nor the applicant are bound by the discussions. N.J.S.A. 40:55D-10.1. An applicant must still proceed through the ordinary approval process.