Goldmann, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
This is an appeal from a summary judgment entered for defendant on proceedings attacking the validity of a local improvement.
On January 2, 1951, the City of Asbury Park adopted an ordinance authorizing the acquisition, as a local improvement, of certain lands to provide parking facilities, pursuant to the provisions of Chapter 261 of the Laws of 1949 (N.J.S.A. 40:56-1.1, 1.2, and 1.3).
The ordinance estimated the maximum amount to be raised from all sources at $246,500 and provided for the issuance of bonds to raise $234,500 thereof, the difference having been provided by budget appropriation. The bonds
were issued and sold, a substantial part of the real property described was acquired and improved, and as of the date of the institution of these proceedings, the property so acquired was in use as a public parking area.
Plaintiffs own land authorized to be acquired by the ordinance. On August 4, 1952, plaintiffs were notified that on August 14, 1952 the general board for making assessments for benefits would take testimony for the purpose of making an award for the real estate owned by plaintiffs. On August 13, 1952 plaintiffs filed their complaint in the Law Division of the Superior Court.
The complaint alleged that defendant "has not and will not acquire" certain other lands embraced in the ordinance; "now seeks to abandon a portion of the improvement therein described without repealing the said improvement ordinance" in violation of R.S. 40:56-9; "has in fact violated" the ordinance "by proceeding against the property of the plaintiffs and by abandoning its proceeding against the remaining property hereinabove described"; and "has no power nor legal authority to condemn a part of the property described in the ordinance without condemning the property therein described in its entirety." The complaint prayed that the ordinance "be set aside, made void and for nothing holden against these plaintiffs" and that further proceedings against them under the ordinance be restrained.
Defendant answered denying an intention to abandon any part of the project, and pleaded laches and R.S. 40:56-20.1, which provides that no review of an ordinance for any improvement shall be allowed after the contract therefor shall have been awarded.
The pretrial order spells out the issues in harmony with the foregoing resume of the pleadings. During the trial, defendant made a motion for summary judgment, upon leave granted, and judgment was ordered upon the ground of laches.
Plaintiffs urge their attack is not addressed to the ordinance as originally adopted, nor to the validity of the bond issue, nor to the contract for the improvement of the area,
but rather that they seek a declaration of the invalidity of the ordinance as to them only, leaving the ordinance and the subsidiary proceedings otherwise undisturbed. Their emphasis is upon events subsequent to the adoption of the ordinance; as developed at the trial, they insist that the funds raised would be insufficient for the completion of the project, and that defendant, despite its disavowal of the purpose, must necessarily abandon the project as to some of the lands described in the ordinance for want of funds. It seems to us that the issue of laches and the bar of the cited statute depend ultimately upon the substantial merit of the attack made, because if the basis for relief asserted is legally sufficient, the timeliness of ...