On petition for a writ of mandamus commanding the apportionment of an assessment lien upon lands in the municipality, or, in the alternative, a writ of certiorari to review a resolution relating to the apportionment of the lien.
For the relator-prosecutor, Aubrey J. Elias.
For the city of Clifton, John G. Dluhy.
For the State Highway Commissioner, William J. McCormack, assistant attorney-general.
Before Justice Heher, at the Passaic Circuit.
HEHER, J. On June 18th, 1938, the relator-prosecutor, Olbis, the owner of a tract of vacant land abutting one hundred and fifty-nine feet on Piaget Avenue, in the City of Clifton, and extending back therefrom a depth of two hundred and fifty-four feet to Barclay Avenue, entered into an agreement with the State of New Jersey, through the State Highway Commissioner, for the sale and conveyance to the State, at the price of $2,893.80, of the entire frontage on Piaget Avenue to a uniform depth of forty-three feet, for the construction of State Highway Route 6 (Rev. 1927), section 8, Valley Road to Route 3, and on August 4th, 1938, made, executed and delivered to the State a deed of conveyance for that parcel. Thereupon, the State and Olbis joined in a petition to the City Council for an apportionment of the existing municipal liens; and on September 20th, 1938, that body adopted a resolution whereby an assessment lien for local improvements (then totaling with accrued interest the sum of $2,587.13) was "apportioned" to the parcel conveyed to the state, while the tax arrears (in the aggregate principal sum of $529.41) were apportioned on the basis of one-sixth thereof (amounting with interest to $116.14) to the lands so conveyed.
It is conceded that the latter parcel is approximately one-sixth of the whole of the Olbis tract; and, on the hypothesis that the Council in effect "refused to apportion the assessment lien" in accordance with the petition thus presented, Olbis prays a writ of mandamus commanding its apportionment "pursuant to the statute," or, in the event that the action taken be deemed an "apportionment," a writ of certiorari to vacate it as "not made in accordance with the statute."
In my view, the resolution reveals an assumption by the
Council of its statutory jurisdiction, albeit its exercise was ineffectual for the reasons to be presently stated. The municipality concedes that this is so. It argues that, by the "action taken [the adoption of the resolution], the lien was apportioned by placing against the portion * * * taken by the State for highway purposes a sum representing the cost of improvements and approximately one-sixth of the taxes accumulated thereon;" and, in defense of the resolution, it urges (a) that the "apportionment was made according to the valuations of the respective subdivisions at the time the liens were imposed;" (b) that the "assessments for improvements were properly chargeable against the portion taken for state highway purposes;" and (c) that the parcel taken "increased in value by reason of the improvements for which" the assessment was made, and the State, "by agreeing to pay for the land taken and the replacement of all improvements," has undertaken "to pay the cost" of the improvements, "and the same should therefore be paid to the City."
The statute commands that: "When part of a plot or parcel of land has or shall have been taken for the opening, widening or extension of a street in a municipality, all taxes, assessments and water rents which shall be liens upon the whole plot or parcel of land from which the plot or parcel has or shall have been taken, shall be equitably and justly apportioned between the plot or parcel so taken and the balance that shall remain in the same manner as other apportionments are made." R.S. 1937, 54:7-9.
The standard of apportionment is laid down in section 54:7-3. It provides that: "The apportionment * * * shall be made according to the values of the respective subdivisions at the time the respective charges were imposed or levied, unless the claim is justly chargeable only to a particular part of the whole parcel."
The proofs disclose no basis for the finding by the municipal governing body that the entire assessment "is justly chargeable" to the parcel sold and conveyed to the State. The improvements for which the assessment in question was levied consisted of the grading and paving of the highway, the ...