Pyatt v. Mayor & Council of Borough of Dunellen in Middlesex County

• Decision Date: 26 May 1952
• Docket Number: No. A--116,A--116
• Parties: PYATT et al. v. MAYOR & COUNCIL OF BOROUGH OF DUNELLEN IN MIDDLESEX COUNTY et al.
• Court: New Jersey Supreme Court

Page 548

9 N.J. 548

89 A.2d 1

PYATT et al. v. MAYOR & COUNCIL OF BOROUGH OF DUNELLEN IN MIDDLESEX COUNTY et al.

No. A--116.

Supreme Court of New Jersey.

Argued April 28, 1952.

Decided May 26, 1952.

Joseph J. Mutnick, Plainfield, argued the cause for appellants.

John E. Toolan, Perth Amboy, argued the cause for respondents (Toolan, Haney & Romond, Perth Amboy, attorneys).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.

This appeal to the Appellate Division, certified of our own motion, brings up a judgment entered in the Law Division which adjudged two ordinances adopted December 28, 1949 by the Mayor and Council of the Borough of Dunellen to be valid, and dismissed the complaint of appellants and others in lieu of prerogative writ to set the ordinances aside.

The first ordinance vacates 1,400 feet of South Avenue abutted on each side by lands and structures comprising the plant of defendant, Art Color Printing Company. South Avenue runs east from Washington Avenue toward Plainfield. The vacated portion is the first 1,400 feet east from the intersection. The second ordinance provides for a detour traffic route to skirt the south and east sides of the Art Color Printing Company property. The detour is a semi-circle utilizing a parallel street, Columbia Street, which also starts at Washington Avenue. Columbia Street would be widened and extended northeast from its present dead end at an athletic field and playground, across lands partly of the playground and partly of Art Color Printing Company, to intersect with South Avenue east of the vacated portion. The ordinance provides that the expense and widening and extending Columbia Street shall be borne wholly by Art Color Printing Company.

The ordinances were adopted at the instance of the company, which is in the business of printing popular magazines having large volume circulation. It is Dunellen's largest industry (the population of the borough is about 6,500), employing 374 residents who have 525 dependents and receive wages in excess of one and a half million dollars annually, or almost one-quarter of the company's total annual payroll. Taxes paid by the company amount to approximately 15% Of the borough's tax revenue. The company advised the borough governing body that to maintain its position in the industry expansion of its present inadequate facilities is necessary and that the only feasible method of expansion is in width across South Avenue. It was suggested that unless expansion across South Avenue was permitted it would be necessary for the company to move the plant to another municipality where adequate room is available.

The ordinances were adopted by a four to two vote of the borough council. Two of the affirmative votes were cast by councilmen who at the time were employed by Art Color Printing Company.

A witness from the State Highway Department listed South Avenue in the group of the second most heavily travelled highways of the State. A traffic count made by the State Highway Department in April 1950 showed that the street was traversed by 2,282 trucks and passenger vehicles in a 24-hour period. Washington Avenue is also a heavily trafficked thoroughfare carrying traffic between State Highways 25 and 29. The traffic into or from South Avenue turns from or into Washington Avenue or crosses Washington Avenue from and to Newmarket Road opposite South Avenue. It was testified by the witness that the detouring of this heavy volume of traffic would, because of the turns and curves along the detour route, both slow up the flow of traffic and increase traffic hazards, as well as create a peril to children using Columbia Street to reach the athletic field and playground. Columbia Street is now a quiet residential street of 16 residences and is rarely used by vehicles.

The appellants, all of whom are residents of Columbia Street, and other plaintiffs not parties to the appeal who reside on Newmarket Road, field their complaint to have the ordinances set aside on the grounds, among others, that the plan authorized by the ordinances 'is a perversion of the statutory power delegated to' the municipality, 'is palpably not in the public interest, and abets the purposes of a private interest, the defendant, Art Color Printing Company,' that the vacation ordinance divests 'the public of its rights in South Avenue, a street dedicated to and accepted for public use, improved by public funds, and for many years a highly useful and valuable artery of traffic; further that both ordinances are illegal 'in that they were voted for by persons having special interests therein and incapable of acting impartially.'

A preliminary question as to the standing of appellants to prosecute the appeal is raised by defendant, Art Color Printing Company. The company contends that appellants did not establish that they will suffer any special injury under the ordinances beyond that sustained by the public generally. The point is without merit. If the plan is completed appellants' street will be entirely transformed from a quiet street to a busy highway. There was also expert testimony that the change would seriously depreciate the values of appellants' residences. Plainly they have an interest in the matter which is special and entirely distinct from that of the community as a whole, or that of owners of property in the borough not so situated, and this interest is amply sufficient to give them a standing to attack the ordinances. Cf. Speakman v. Mayor and Council of North Plainfield, 8 N.J. 250, 84 A.2d 715 (1951).

Appellants argue first that the borough council failed to find that the vacated portion of South Avenue is useless as a street, and contend that the vacation ordinance is therefore necessarily invalid. The discretion of a governing body when exercising the power to vacate streets delegated to municipalities under R.S. 40:67--1(b), N.J.S.A. is not so limited. The governing body is not restricted to the consideration merely of the continuing utility of the street proposed to be vacated. The controlling criterion is whether the closing will be in the service of the general public interest. To that inquiry whatever is relevant for or against the proposed closing and bears upon the public interest in the particular circumstances ordinarily not only may, but should, be considered. And judicial superintendence is confined largely to ascertaining whether factors other than such as bear upon the public welfare influenced the action in a manner which vitiates it. The policy and wisdom of the vacation of a street when founded upon considerations confined to the service of the public interest is not the concern of the courts. The rule is that '* * * unless tainted with fraud, or palpably not in the service of the public interest, or otherwise a clear perversion of power', there is no occasion for judicial intervention. Con Realty Co. v. Ellenstein, 125 N.J.L. 196, 14 A.2d 544, 546 (Sup.Ct.1940); Downs v. Mayor, etc., of South Amboy, 116 N.J.L. 511, 185 A. 15 (E. & A.1936); Kean v. City of Elizabeth, 54 N.J.L. 462, 24 A. 495 (Sup.Ct.1892), affirmed 55 N.J.L. 337, 26 A. 939 (E. & A.1893); Sherwood v. City of Paterson, 88 N.J.L. 456, 94 A. 311 (Sup.Ct.1915), affirmed 88 N.J.L. 738, 96 A.293 (E. & A.1916); 11 McQuillin, Municipal Corporations (3rd ed.1950), p. 133.

Appellants next argue that the ordinances upon the facts presented are palpably not in the service of the public interest but in the primary interest only of Art Color Printing Company, and thus are invalid within the exception to the rule stated in Con Realty Co. v. Ellenstein, supra. They argue further that the first ordinance by...