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Pyatt v. Mayor and Council of Borough of Dunellen

May 26, 1952

EDWARD M. PYATT, CHARLES W. SMITH, STEPHEN J. BRISKEY, ARNOLD B. ENGELHARDT, EDWARD B. DIX, AND J. C. GRIFFITH, PLAINTIFFS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF DUNELLEN IN THE COUNTY OF MIDDLESEX, AND ART COLOR PRINTING COMPANY, A CORPORATION OF THE STATE OF NEW YORK AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.

Brennan

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 per cent 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, filed 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 ...


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