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Holloway v. Township of Pennsauken

Decided: May 18, 1953.

ELIZABETH A. HOLLOWAY, ET AL., PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF PENNSAUKEN, ET AL., DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

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

Wachenfeld

Two hundred thirty-six property owners in the defendant Township of Pennsauken challenge the validity of assessments made against their lands. The assessments were for special benefits resulting from a local improvement, to wit, sanitary sewers and a sewage pumping station.

In February of 1949 the township, after public hearings, adopted two ordinances authorizing the improvements, the cost thereof to be assessed against the lands benefited. The work so authorized was completed in the latter part of 1950. A public meeting was called by the board of assessment commissioners and thereafter, on December 29, 1950, the township committee confirmed the report of the commissioners fixing the individual assessments. The assessments cover the cost not only of the 1950 construction but also of the construction of a sewer in 1925 not usable until completion of the 1950 project.

Nine months and five days after the assessments had been confirmed, the plaintiffs filed their complaint in lieu of certiorari. The defendant Pennsauken Sewage Authority was eliminated as a defendant. The Attorney-General was made a defendant to the amended complaint filed April 10, 1952, but no answer being filed in his behalf, a default was entered. Thus the Township of Pennsauken is referred to hereafter as the defendant.

The assessments were said to be illegal because: (1) they were based upon a mathematical formula and were not limited to the special benefits received by the individual parcels of land; (2) certain benefited lands owned by the municipality and by private owners were omitted and should have been included in the calculation of the assessments; (3) the assessments exact from the land owners double payment because they cover the cost of the 1925 sewage system project as well as the 1950 project; and (4) certain parcels of land should not have been assessed because of covenants in the deeds running from the township to the predecessor in title of some of the plaintiff property owners.

The defendant moved to dismiss the action because the plaintiffs: (1) had failed to take an appeal to the Law Division of the Superior Court within 30 days as provided by R.S. 40:56-54; (2) had not instituted the action in lieu of certiorari within 30 days after the confirmation of the assessment, in accordance with R.S. 40:56-40 or Rule 3:81-15(b) (4), and (3) were guilty of laches.

The motion, treated on the trial level as one for summary judgment, was granted, but none of the three grounds set forth above was specified. Cf. Rule 3:12-2.

On appeal, the Appellate Division affirmed on the ground the plaintiffs were barred by the 30-day limitation in R.S. 40:56-54. Holloway v. Twp. of Pennsauken, 23 N.J. Super. 224 (App. Div. 1952).

Both in the Appellate Division and here the plaintiffs argued that statute is inapplicable and the remedy is by proceeding in lieu of certiorari inasmuch as the assessments are attacked on constitutional grounds; that therefore the 30-day limitation in R.S. 40:56-40 and Rule 3:81-15(b) (4) and the doctrine of laches do not apply. Because a constitutional question was alleged to have been raised, the appeal was brought here. Rule 1:2-1.

The statute, R.S. 40:56-54, provides in part:

"* * * the owner of any property assessed for benefits * * * may within thirty days after confirmation of such assessment * * * appeal from the same to ...


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