Lenzner v. City of Trenton

• Decision Date: 08 October 1952
• Docket Number: No. L--7554,L--7554
• Citation: 22 N.J.Super. 415,91 A.2d 896
• Parties: LENZNER et al. v. CITY OF TRENTON et al. . Law Division
• Court: New Jersey Superior Court

Page 415

22 N.J.Super. 415

91 A.2d 896

LENZNER et al. v. CITY OF TRENTON et al.

No. L--7554.

Superior Court of New Jersey.

Law Division.

Oct. 8, 1952.

David Frankel, Trenton, for plaintiffs (John A. Hartpence, Trenton, of counsel).

Louis Josephson, Trenton, for defendants.

WOODS, J.S.C.

On May 29, 1952 the Board of Commissioners of the City of Trenton, New Jersey, adopted an ordinance providing for the acquisition of lands for the public parking of vehicles, which reads as follows:

'Whereas, the greatly increased use by the public of motor vehicles of all kinds has caused serious traffic congrestion on the streets of the City of Trenton; that the parking of motor vehicles on the streets has contributed to this congestion to such an extent as to interfere seriously with the primary use of such streets for the movement of traffic; that such parking prevents the free circulation of traffic in, through and from other municipalities, impedes rapid and effective fighting of fires and the disposition of police forces and endangers the health, safety and welfare of the general public; that such parking threatens irreparable loss in valuations of property in portions of the city which can no longer be readily reached by vehicular traffic; that this parking crisis, which threatens the welfare of the community can be reduced by providing sufficient 'off-street' parking facilities properly located in the commercial and industrial areas of the city; that adequate provision of properly located terminal space for automobiles is a public responsibility and cannot be effectively dealt with by private enterprise; therefore the Board of Commissioners of the City of Trenton Do Ordain:

'1. That pursuant to the provisions of chapter 138 of the Laws of 1942, R.S. 40:60--25.1, et seq., it is hereby determined that the City of Trenton shall acquire by purchase or condemnation the following described lands for the purpose of making the same available to the public for the public parking of vehicles.

'2. That the cost of the said acquisition of said lands for such purpose, shall be raised by the issuance of bonds of the municipality in the manner provided by law.

'3. The said lands are known as City Atlas Page 5, Ots Nos. 43--44--45--62--61--98--128--60--99, and part of Lots Nos. 63--46--135--47 and 48, more specifically described as follows:

(here follows the description of the lands by metes and bounds)

'4. The City Counsel be and is hereby authorized and directed to negotiate with the owners for the purchase of said lands, and upon failure to arrive at a price satisfactory to the city to institute condemnation proceedings for the purpose of acquiring said lands in the manner provided by law.'

Plaintiffs are the owners of Lots No. 43--44--45 and 62 on the City Atlas Page 5 referred to in said ordinance, and the plaintiff Isadore Lenzner also has a leasehold interest in certain other rear lands included and described in said ordinance. These lands are situate in the central business district of the City of Trenton and have been used, developed and operated by the plaintiff Isadore Lenzner as a profitable parking yard for automobiles, with the exception of a small portion thereof used for mercantile and dwelling purposes for a period of 24 years.

The plaintiffs bring this action to obtain a judgment declaring the ordinance to be illegal, invalid, null, void and without legislative or constitutional authority, and in contravention and in violation of the personal, legal and constitutional rights of the plaintiffs.

The defendants filed no answer but moved for a summary judgment on the ground that there is no genuine issue as to any material fact, and stated that the ordinance was adopted pursuant to N.J.S.A. 40:60--25.1 and also N.J.S.A. 40:56--1.1.

N.J.S.A. 40:60--25.1 reads as follows:

'The governing body of any municipality may, by ordinance, provide for the acquisition by gift, devise, purchase or condemnation, of lands therein for the purpose of making the same available to the public for the public parking of vehicles and the cost of the acquisition of any land for such purpose may be raised by general taxation, or by the issuance of bonds of the municipality. Such lands may consist of separate tracts or parcels, contiguous or not contiguous, improved or unimproved, and whether or not abutting upon any State or county road or municipal street.' L.1942, c. 138, p. 427, sec. 1.

N.J.S.A. 40:56--1.1 reads as follows:

'Any municipality may undertake, as a local improvement, the work of providing facilities for the parking of motor vehicles by the acquisition and improvement of real property and by the construction of buildings and structures. Any such acquisition may be by purchase or lease and the parking facilities may include equipment, entrances, exits, fencing and other accessories necessary or desirable for the safety and convenience of the parking of motor vehicles.' L.1949, c. 261, p. 828, sec. 1.

The plaintiffs then moved for entry of default judgment for the reason that since no answer was filed, the defendant admitted all allegations of the complaint.

We have heard the oral argument of counsel and we have read the pleadings and the voluminous briefs filed in behalf of both the plaintiffs and the defendants. After analyzing all the facts and the law set forth, we determine the questions before the court at this time to be:

1. Is the ordinance adopted pursuant to N.J.S.A. 40:60--25.1 (L.1942, c. 138) valid legislation, sufficient to authorize the defendants to proceed thereunder?

2. Is the ordinance in contravention and in violation of the personal, legal and constitutional rights of the plaintiffs?

3. Are the plaintiffs entitled to a default judgment because the defendants failed to file an answer and therefore all the material averments and allegations of the complaint which have not been specifically denied by the defendants are admitted?

As to the first question, the plaintiffs allege that the ordinance states specifically that it is based upon chapter 138 of the Laws of 1942 (N.J.S.A. 40:60--25.1 et seq.) and that its validity therefore must rest entirely upon that statute. With this allegation we agree. However, they go on to argue that the City of Trenton, once having created a parking authority pursuant to N.J.S.A. 40:11A--1 et seq. (L.1948, c. 198) by its ordinance adopted on December 16, 1948, thereby, divested itself of the right and power which it might otherwise have had in all the rights and powers now vested by law in the said Parking Authority of the City of Trenton and is without power or legal authority now to take the action which it has attempted to take by the passage and adoption of the ordinance in question.

In an opinion by the Supreme Court of New Jersey written by Judge Jacobs in the case of DeLorenzo v. City of Hackensack, 9 N.J. 379, at page 384, 88 A.2d 511 (1952), 513 the court held as follows:

'The parking problem confronting urban municipalities in New Jersey and elsewhere is a serious one. See Giant Tiger Corporation v. Board of Commissioners of Trenton, 168 A. 310, 11 N.J.Misc. 836, 839 (Sup.Ct.1933); England v. Milburn Township, (Millburn Township) 122 N.J.L. 462, 465, 5 A.2d 782 (E. & A. 1939). It is being dealt with in many communities by public off-street parking facilities Operated oftentimes by the municipalities themselves or by so-called parking authorities created pursuant to enabling legislation.' (Emphasis ours.)

The court then reviewed the existing legislation dealing with the laws authorizing the municipality to operate offstreet parking lots. We quote:

'In L.1942, c. 138, the Legislature authorized municipalities to acquire and operate parking facilities and defray the cost thereof by general taxation. R.S. 40:60--25.1, et seq., N.J.S.A. In L.1949, c. 261, the Legislature authorized municipalities to undertake, as local improvements the work of providing parking facilities. R.S. 40:56--1.1 et seq., N.J.S.A. Under these enactments taxpayers generally or those specially benefitted would bear the financial burden, and the City of Hackensack chose not to proceed thereunder. (Emphasis ours.) In L.1948, c. 198, the Legislature sought to afford to municipalities the means of providing public off-street parking facilities through independent authorities which would be substantially self-liquidating, thus restricting or eliminating the financial burdens on their...