On appeals from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J. (dissenting).
The Camden Central Business District is in immediate need of additional off-street parking facilities and that need will be substantially greater in the near future when a proposed new department store is erected on the Old Court House site close by the City Hall Plaza, a municipally-owned area designated "Roosevelt Plaza" by resolution of the municipal governing body adopted October 29, 1936.
A Traffic and Parking Study of the Central District, prepared in December 1953 for the City of Camden by firms of architect-engineers and management consultants, showed that the then existing deficiency in the area of 250 spaces of off-street parking facilities would be increased to 1,250 spaces upon the opening of the new department store. The study
pointed out that City Hall Plaza is now utilized in part at least as an open-air off-street parking lot, part operated by the city itself as a metered parking lot and part by a private parking lot operator under lease from the city. The study recommended that the City Hall plaza parking lots be utilized for the construction of a multi-story parkade with a capacity for 1,400 vehicles, thus providing the 250 spaces now lacking in the area, the 175 presently provided by the parking lots on the Plaza, and the 1,000 additional spaces estimated to be needed when the new department store is built. Suggested design and type of construction and sketches of such a parkade were included with the study.
Shortly thereafter, in March 1954, the City of Camden entered into a written agreement with the interests about to construct the department store "to take the necessary steps to construct or procure the construction * * * of a multi-storied structure * * * for off-street parking * * * that will accommodate approximately one thousand (1000) automobiles, which structure shall be substantially similar in design and construction to that shown upon the December, 1953 study * * *."
Not desiring to finance the construction cost, the city evolved a plan for selling a 50-year leasehold in the city-owned land to the highest responsible bidder who would undertake the construction of the multi-story structure at its own expense, title upon completion, however, to vest in the city, subject only to the leasehold. A resolution was adopted by the governing body on March 11, 1954, directing the advertising of the sale and setting forth the terms of bidding. Two bids were received and opened on the sale date, April 20, 1954. One bid was that of Nedmac Associates, Inc., and the other that of Camden Plaza Parking, Inc. The bid of Nedmac Associates, Inc., was accepted by resolution adopted April 22, 1954.
Camden Plaza Parking, Inc., the unsuccessful bidder, promptly filed an action in lieu of prerogative writ against the city asking a judgment setting aside the award to Nedmac
Associates, Inc., and an order directing the city to accept its bid. The city moved for and was allowed a summary judgment in its favor, which was entered May 6, 1954. We certified of our own motion the appeal therefrom of Camden Plaza Parking, Inc.
Thereafter, on May 20, 1954, a taxpayers' action in lieu of prerogative writ was brought by William H. and Mary C. Heiser against the City of Camden, Nedmac Associates, Inc., and Camden Plaza Parking, Inc. Included in the relief sought is "that the action taken by the City of Camden in connection with the passage of the Resolution, the advertisement and the award of the bid to Nedmac Associates, Inc., be declared illegal and void." The Heisers moved for and on June 16, 1954 were denied a temporary restraint pending trial staying the taking of "any proceedings or steps whatsoever under or by virtue of the Resolution of the City of Camden adopted April 22, 1954." We of our own motion certified the appeal of the Heisers from that order.
The appeals were orally argued on June 28, 1954, after which we directed the setting aside of the summary judgment and, to the extent that it denied the temporary restraint, of the order of June 16, 1954, and directed the remand of the consolidated action with direction to enter judgment vacating and setting aside the resolutions adopted by the city on March 11, 1954 and April 22, 1954, and declaring illegal and void all proceedings and actions taken thereunder. We also announced that this opinion would be prepared and filed in due course. Cf. Schlossberg v. Jersey City Sewerage Authority, 15 N.J. 360 (1954); Stevenson v. Gilfert, 13 N.J. 496 (1953).
Action by a municipality to relieve traffic congestion through the establishment of off-street public parking facilities is the exercise of a public and essential governmental function, and publicly-owned lands used for such purposes are devoted to a public use. The parking crisis in the modern day threatens the very welfare of the community, and statutes and court decisions recognize that public lands employed by
public bodies for public off-street parking are devoted to a public purpose, R.S. 40:60-25.1, R.S. 40:56-1.1, R.S. 40:11 A -1; DeLorenzo v. City of Hackensack, 9 N.J. 379 (1952). "It is only in recent years that the matter of the provision or operation of such off-street parking facilities by municipal corporations has attained such prominence" and "One important question met with rather generally in the cases on the present subject is that as to whether the provision of off-street parking facilities by a municipality is a 'public purpose,' 'public use,' 'municipal purpose' or the like, as distinguished from a private purpose or use. * * *. * * * the greater amount of the authority -- particularly that found in the later cases -- supports the view that the provision by a municipal corporation of off-street parking facilities for use by the general public is a public or municipal purpose as distinguished from a private one, at least when the primary object of the parking project is to alleviate traffic congestion and thereby promote the usability of the municipal streets for the movement of traffic." Annot., Municipal Off-street Parking, 8 A.L.R. 2 d, 374, 375, 376; see also McSorley v. Fitzgerald, 359 Pa. 264, 59 A. 2 d 142, 143 (Sup. Ct. Pa. 1948). And the land and facility do not cease to be used for a public purpose when leased to private operators for operation as a public parking facility. See Public Parking Authority &c. v. Board of Property Assessment, 377 Pa. 274, 105 A. 2 d 165 (Sup. Ct. Pa. 1954). The public character of the use in the instant case is expressly recognized in the municipal resolution of March 11, 1954 which contains findings that the development of the city-owned tract as an off-street parking facility in the mode proposed in the resolution is necessary "in order to promote the public safety, convenience and welfare and in the best interest of the public."
But municipalities have only such powers as are given them by the Legislature and in authorizing municipalities to provide public off-street parking facilities the Legislature has not ...