Board of Ed. of Town of Morristown v. Palmer, A--661

• Decision Date: 07 July 1965
• Docket Number: No. A--661,A--661
• Citation: 212 A.2d 564,88 N.J.Super. 378
• Parties: BOARD OF EDUCATION OF the TOWN OF MORRISTOWN, etc., Plaintiff-Appellant, v. Dwight R. G. PALMER, Commissioner, State Highway Department, etc., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 378

88 N.J.Super. 378

212 A.2d 564

BOARD OF EDUCATION OF the TOWN OF MORRISTOWN, etc Plaintiff-Appellant, v. Dwight R. G. PALMER, Commissioner, State Highway Department etc., et al., Defendants-Respondents.

No. A--661.

Superior Court of New Jersey Appellate Division.

Argued June 7, 1965.

Decided July 7, 1965.

Clive S. Cummis, Newark, for appellant.

William J. McCormack, Deputy Atty. Gen., for respondent State Highway Com'r (Arthur J. Sills, Atty. Gen., attorney).

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This dispute involves the construction of part of Interstate Highway Route 287 (I--287) and an interchange or ramp system connecting with it, in the vicinity of the George Washington Elementary School, Morristown, N.J. The real parties in interest are plaintiff Board of Education of Morristown, owner of the school, and defendant Dwight R. G. Palmer, Commissioner of the New Jersey Highway Department, which department is presently engaged in the construction of the highway.

Plaintiff instituted a Chancery Division action upon verified complaint and order to show cause, supported by seven affidavits, in which it demanded, essentially, that the Commissioner be compelled to condemn the school property and, pending such condemnation, that he (i.e., the Highway Department) be stayed from taking any action in furtherance of the construction project which would substantially affect plaintiff's use of the George Washington school as an elementary educational facility. On the return day of the order to show cause the Department submitted two affidavits in opposition, originally stating that no part of plaintiff's land would be taken, but then amended to say that a small piece would be taken. The matter was disposed of in summary fashion, apparently in the light of defense counsel's oral representation that there would, in fact, be No physical taking.

In his oral opinion at the close of argument the trial judge said he was compelled to the conclusion that the complaint must be dismissed because--assuming all of plaintiff's contentions to be true--there was no New Jersey precedent for holding that there could be a 'taking,' constitutionally compensable, absent a physical invasion of the school property itself or severance of access thereto. If the Commissioner took any part of the school premises, there would, of course, have to be condemnation proceedings to determine the value of the part taken and any damage to the remainder.

Plaintiff filed a notice of appeal immediately following entry of final judgment dismissing its complaint. It simultaneously applied to a single judge of this Part for an order staying any action in furtherance of the construction until the full Part could hear plaintiff's motion for a stay pending appeal. Defense counsel agreed to hold the matter In statu quo until the motion was determined. The Highway Department then submitted two additional affidavits stating that it was absolutely urgent that work be commenced as quickly as possible, pursuant to a predetermined schedule for the completion of the project; that access to the school after construction would be exactly the same, i.e., at grade level from Morris Street which fronts the school, and that the Department did not intend to take any physical part of plaintiff's land. We denied a stay pending appeal. Plaintiff then applied to the Supreme Court, which also denied a stay.

George Washington Elementary School is one of Morristown's three elementary schools. It has 480 students, ranging from kindergarten children of average age 5 to sixth grade children of average age 11. The school property covers about 5.3 acres, which is approximately one-half of the land area required for an elementary educational facility with a comparable school population--a standard fixed by the New Jersey State Department of Education in its 'Guide for Schoolhouse Planning and Construction' (Dec. 1964 rev.).

Route I--287 will be a depressed six-lane superhighway and will pass within 40 feet of the school's east wing, which is specially designed for and used by kindergarten pupils. It will underpass Morris Street, which is to become one-way eastbound. The three southbound lanes of I--287 will be fed by a ramp leading from Morris Street and curving around the school, circling its west wing, rear of the playground and east wing. A new alignment is planned for westbound traffic on Morris Steet, with a ramp from this thoroughfare shortly after it passes underneath I--287, and joining the ramp from Morris Street eastbound on the east side of the school.

The complaint charges that the alignment of I--287 and its ramps and interchanges will render the George Washington Elementary School 'useless as an elementary school facility.' Plaintiff alleges that the proposed construction will result in (1) extreme danger to pupils between their homes and the school, whether on foot or on bicycles; (2) noxious fumes and serious problems of air pollution; (3) extreme noise from surrounding traffic, which will so interfere with the teaching process and oral control of pupils within the school building as to nullify any effective educational program; (4) a serious safety problem to pupils using the outdoor play area, the edge of which will be close to an embankment leading down to the highway level; and (5) traffic noises that will hinder and render ineffective the school's outdoor physical education program because the instructors' verbal instructions will be limited to 3--5 feet when trucks are using the highway. Plaintiff claims that because of the cumulative effect of these limitations, hazards and interferences, the beneficial use of the school lands and building will be destroyed, and this, in effect, amounts to a taking of the property itself.

The complaint was supported by affidavits of plaintiff board's president and former president, the school principal, the Morristown superintendent of schools, the physical education instructor for elementary schools in Morristown, a professional engineer and expert in acoustics, and an architect specializing in school planning and building. All were familiar with the school site and with the Department's construction proposal. Their affidavits, in combination with the exhibits, disclose that the construction will result in creating an island of the school site. The contents of these affidavits need not be detailed; it suffices to say that they fully support the allegations of the complaint. In addition, the affidavits of the board president and past president cite the opinion of the Deputy Commissioner of the State Department of Education, one of the consultants to the committee which prepared the 'Guide for Schoolhouse Planning and Construction,' who advised the board that the proposed construction would eventually necessitate abandonment of the school.

Before discussing plaintiff's central contention that the proposed highway construction amounts to a taking in the constitutional sense, we proceed to dispose of a number of ancillary matters.

Plaintiff does not dispute the principle that the court will not interfere with the State Highway Department's construction of a highway, absent affirmative proof of bad faith, fraud, corruption, manifest oppression or palpable abuse of discretion. City of Newark v. N.J. Turnpike Authority, 7 N.J. 377, 381--382, 81 A.2d 705 (1951); City of Trenton v. Lenzner, 16 N.J. 465, 473, 109 A.2d 409 (1954). The Department, in turn, does not dispute plaintiff's claim that where there has been an appropriation of property by a governmental entity having the power of eminent domain, without its having undertaken to provide for condemnation, the primary remedy of the property owner lies in an action in the nature of Mandamus to compel the institution of condemnation proceedings. Haycock v. Jannarone, 99 N.J.L. 183, 185, 122 A. 805 (E. & A.1923), recently cited in City of East Orange v. Palmer, 82 N.J.Super. 258, 266, 197 A.2d 410 (Ch.Div.1964).

Plaintiff claims that if we are satisfied that it is entitled to a hearing on the question of damages in condemnation, it is obligatory upon defendant Commissioner to follow the procedure fixed in N.J.S.A. 27:7--23, which reads:

'If the commissioner finds it necessary to acquire lands owned and used by municipalities for public uses and purposes he shall, before taking it over for highway purposes and after hearing had in the manner prescribed in section 27:7--4 of this Title, if before the time fixed for the hearing the municipality whose land is subject to be acquired shall file a notice with the commissioner setting forth that the land is necessary for the public use of the municipality, determine whether or not it is a reasonable public necessity to acquire the land in question.

If the commission decides that it is a reasonable public necessity to acquire such lands for the State highway system, he shall give notice of his finding by serving a copy thereof upon the clerk of the governing body of the municipality within ten days after rendering the decision.

The municipality may within twenty days after service upon it of such notice, appeal from the decision of the commissioner to the Superior Court, which shall in an action hear and determine the question of whether or not the taking of the land in question in preference to some other route is a reasonable public necessity. The court may proceed in the action in a summary manner or otherwise.'

The reason for plaintiff's resort to this enactment is obvious: the statute would give it the right to seek a court review of the Commissioner's determination that the land intended to be taken for I--287, in preference to some other route, was a reasonable public necessity.

The inappropriateness of plaintiff's reliance is equally obvious. N.J.S.A. 27:7--23 on its face deals only with a situation where land 'owned and used by...