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While it has been held that a municipality so engaged exercises a governmental discretion as to the extension of the water mains, governed largely by the extent of the need and economic considerations, the discretionary authority must be fairly and reasonably used; and the remedial process of mandamus may be invoked for an abuse of discretion if the extension be arbitrarily refused.
By a civil action in lieu of mandamus, appellant developer sought to compel respondent township to extend its water mains for a distance of 600 feet, under the usual terms and conditions, to provide water for lands of appellant in process of development for residential uses. The trial court ruled that respondent did not abuse its discretion by requiring appellant to create lots with a certain amount of frontage in order for respondent to extend the water main. Appellant developer sought review of the trial court’s order.
Did the respondent abuse its discretion by requiring appellant to create lots with a certain amount of frontage in order for respondent to extend the water main?
The appeals court reversed the order. The court found that the action taken by respondent was arbitrary and unreasonable. The water facility was owned by respondent and that the exercise of power had to be fair and reasonable and free from oppression. The provision of water to appellant was conditioned not by a circumstance of action or being reasonably bearing upon the exercise of the function, but rather by wholly alien considerations related to planning and zoning. This was not within the province of respondent.