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In re Appeal of Public Service Electric and Gas Co.

Decided: March 30, 1950.

IN THE MATTER OF THE APPEAL OF PUBLIC SERVICE ELECTRIC AND GAS COMPANY FROM AN ASSESSMENT FOR BENEFITS LEVIED BY THE CITY OF CLIFTON UPON BLOCK 334, LOT 75, AND SEVEN OTHER CASES


Davidson, J.s.c.

Davidson

This is a consolidation of eight separate appeals from assessments levied by the City of Clifton for special benefits accruing to plaintiffs' properties under N.J.S.A. 40:56-27, providing that:

"All assessments levied under this chapter for any local improvement shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement."

There is no substantial dispute of fact. A sanitary sewer was installed in Mt. Prospect Avenue, a road which bisects an extremely steep hill, the slope thereof running down from north to south, and all plaintiffs' properties, with the exception of Public Service, abut on the southerly side of Mt. Prospect Avenue. All the properties, again with the exception of Public Service, are in a residential zone and have private residences erected thereon.

Public Service contends that its property received no peculiar benefit, advantage or increase in value by reason of the

sewer installation because they were already connected with a pre-existing sewer, of which the new sewer is merely an extension, the other plaintiffs all maintaining that no benefits accrued to their respective properties because the topography is such that they are below the sewer level and the facility cannot be used.

The only benefits for which an assessment may be made are those which are special and peculiar to the property assessed. The benefits must be present and not speculative. Barkman v. Hackensack , 114 N.J.L. 506; N.J.R.R. & Trans. Co. v. Elizabeth , 37 Id. 330; Morris v. Bayonne , 53 Id. 299. So the statute also provides, R.S. 40:56-27. Twp. of Millburn v. Smith , 9 N.J. Misc. 308.

The special benefits legalizing an assessment against property benefited by public improvement must be a present benefit representing the difference between the market value of the lands before the improvement and immediately thereafter, Overbridge Rlty. v. Hackensack , 13 N.J. Misc. 702, and the benefits must accrue without necessity for the construction of additional facilities, Re: Twp. of North Bergen , 10 N.J. Misc. 935. The benefit which will justify such an assessment must be a present, appreciable benefit and when an assessment on property is certified to have been imposed for benefits, it will be presumed that the property has been in some mode benefited, and the presumption can only be overcome by clear and cogent proof. Morris v. Bayonne, supra; Ringer v. Paterson , 98 N.J.L. 455; Gorab v. Borough of Wood-Ridge , 133 N.J.L. 162.

Applying the settled law to the factual situation in each appeal presents no great difficulty. The Public Service property has long been connected to a sanitary sewer, of which the new installation is merely an extension; the property contains a large building and the remainder is occupied by outdoor electrical apparatus, transformers, etc.; no present appreciable benefit accrued and no facility was furnished which the property did not previously enjoy, evidenced by the fact that no house connections were constructed in the

new sewer for the length of their property line. The assessment against the Public Service property, Lot 75 in Block 334, must be set aside.

The building on property of Madeline K. Fisher is above the sewer line and has access thereto; the lands are benefited and the appeal as ...


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