This matter brings before the Court, for review, an ordinance of the Borough Council of the Borough of Chatham, adopted August 1, 1949, providing for the construction of sidewalks along portions of Weston Avenue and along the entire length of Duchamp Place, in the Borough of Chatham.
The ordinance as finally adopted, provided, in part, as follows: "5. That the cost of the construction of said sidewalks shall be borne by the owner or owners of the real estate in front of which the sidewalks are laid."
The plaintiffs are owners of certain property abutting on Weston Avenue and on Duchamp Place whose respective properties will be affected by the improvement provided for by the ordinance.
This matter comes before the Court on stipulation of facts and the taking of testimony on the 23rd day of March, 1950. Thereafter, and considerably thereafter, briefs were filed on behalf of the parties. The stipulation provided that the manner of passage of the said ordinance is not disputed. It was further stipulated that the primary and motivating purpose of the ordinance was to make provision for the safety of school children going to and from the Milton Avenue school from various parts of the Borough.
The section of the Borough of Chatham where the sidewalks are proposed appears to be predominantly residential. The new school was erected in the immediate vicinity of this area prior to the enactment of the ordinance in question. It is
then clear that the existence of this school was a principal factor in moving the defendant Borough to adopt the ordinance requiring the laying of the sidewalks by the ordinance under review.
Plaintiffs base their contention that the ordinance is invalid, upon two arguments;
1. That under the circumstances an ordinance providing that the entire cost of the sidewalk improvement shall be imposed upon the abutting owners is invalid, and,
2. That the procedure established by the ordinance is improper and does not comply with the statute, in particular as to notice to the property owners.
Plaintiffs rely heavily upon the line of cases stemming from Agens v. Mayor, etc., of City of Newark , 37 N.J.L. 415 (E. & A. 1874), decided by the former Court of Errors and Appeals, holding, "that the cost of a public improvement may be imposed on particularized property to the extent to which such property is exceptionally benefited and that any special burden beyond that measure is illegal."
It is plaintiffs' contention that their premises are not benefited by the proposed sidewalks. On the contrary, they argued that since the prime motivation of the council in adopting the ordinance was to provide safe access to the new school, their situation is controlled by the decision in Lehigh Valley R.R. Co. v. City of Dover , 80 N.J.L. 63 (Sup. Ct. 1910). This case must, however, be distinguished factually from the one at bar, for there a sidewalk was required to be laid only along one side of a certain street and that side was entirely joined by a canal leased by the railroad company. The holding that an assessment against the railroad ...