Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants challenge plaintiff's power to condemn their property for use as a parking lot for the Court House and the Hall of Records of Essex County. This legal issue is central to a determination of their appeal from the summary judgment entered against them on plaintiff's motion, pursuant to R.R. 4:58.
Plaintiff instituted condemnation proceedings under R.S. 40:32-2 and 3 to acquire defendants' property at 73 1/2 13th Avenue, Newark, N.J. By its complaint it demanded judgment against defendants and the appointment of three commissioners, in accordance with R.S. 20:1-1 et seq. , as amended and supplemented, to fix the compensation to be paid for the taking of the property. Process in the form of an order to show cause issued. R.R. 4:92-3 and 4:85-3. Defendants appeared pro se. Their answers and affirmative defenses denied any authority in the county to condemn their property for a parking area under R.S. 40:32-2 and 3, alleged that its acquisition was, in fact and in law, not necessary, and that the condemnation would violate their constitutional rights inasmuch as the property was not being taken for a public use.
The affidavits filed in support of plaintiff's motion for summary judgment disclose that the county has since May 1953 maintained an off-street parking lot in the rear of the Hall of Records, bounded by Nelson Place on the north and Howard Street on the west. This lot has served as a parking space for county officers and employees, judges and jurors attending the courts in the Hall of Records and the adjacent Court House, and for other persons lawfully using the county facilities located in those buildings. It accommodates about 170 automobiles, but is not large enough to take the cars of all the persons just described. The parking area has not eliminated traffic congestion in the streets surrounding the two county buildings, particularly on Nelson Place and 13th Avenue.
The affidavits further show that the county has acquired 18 of the 19 properties located in the area immediately to
the rear of the Hall of Records, bounded by 13th Avenue on the south and Howard Street on the west, for the purpose of constructing and maintaining an additional parking space contiguous to the existing lot. The only property not acquired by the county is that involved in this action; those already acquired are located on both sides of defendants' premises. The additional parking space, when constructed, will accommodate about 150 automobiles. Together with the present lot it should provide suitable off-street parking for the Court House and Hall of Records, made necessary by the traffic congestion and parking conditions in the vicinity.
The county began negotiations to acquire defendants' property as early as March 1953. The premises were then owned by defendant Theodore M. Hindenlang. Negotiations continued until December 1954, and were attended by exchanges of correspondence, an appraisal and reappraisal of the property, and conferences with county representatives, three of them with the board of freeholders itself. The county offered $19,600; the sum finally demanded by the owners was $28,624.80. At their last appearance before the board on December 9, 1954, when the resolution shortly to be mentioned was adopted, defendants requested that the county withhold for two days the filing of its complaint. The board thereupon instructed county counsel not to file the complaint prior to December 13. During the intervening period, and on December 11, 1954, there was recorded a contract of sale between Theodore M. Hindenlang and his son Theodore G. Hindenlang, providing for the sale of the property to the latter for $28,000.
Plaintiff's affidavits show not only that the existing parking area is insufficient and that persons entitled to park there have regularly been turned away, but also that the plans of the freeholder board for the construction of the additional parking area have been delayed because of the inability of the county to come to an agreement with the owners as to price. The affidavits of County Engineer and Supervisor of Roads Colwell and of Newark Traffic Engineer Cyr substantiate the necessity for the construction of the planned parking area.
Defendants submitted only one affidavit in opposition to the motion for summary judgment -- that of Theodore G. Hindenlang. It contradicts none of the facts contained in plaintiff's affidavits. Instead, it argues that the primary purpose of the proposed parking lot is the parking of the automobiles of county officers and employees, and that they should be required to use available bus lines and the city subway. It suggests that a current engineering survey of Newark's parking needs should first be studied, and registers various complaints against the board of freeholders.
In granting plaintiff's motion for summary judgment the trial court held that "government in all its branches necessarily has implied power to condemn land for the purpose of erecting parking lots contiguous to public buildings for the purpose of being used by those employees and others who have constant access to those public buildings." Two reasons were assigned for this conclusion: (1) "government has the right to provide parking space for its own employees in a reasonable manner," and (2) "by having parking space reasonably available to public buildings it aids the overall congested traffic problem which presses upon us constantly in a metropolitan area such as is Newark." After finding that the moving papers -- the resolution of the freeholder board and the affidavits filed in support of the motion for summary judgment -- showed a reasonable necessity for the taking, and after pointing out that defendants had been aware of the expenditure of public funds for the acquisition and use of the adjoining lands for a parking area, the trial judge concluded that in his opinion "it is essential to carry on reasonably the function of government to provide reasonable parking facilities at reasonable locations to the public buildings to which people habitually and daily come." He found that there was palpably no genuine issue as to any material fact and that the right of the county to acquire land for the purposes set forth in the resolution of the board of freeholders is one of the powers expressly or impliedly granted by R.S. 40:32-2 and 3.
The board of freeholders had initially taken formal action to acquire defendants' premises "for public purpose" by resolution dated June 24, 1954. A second and more complete resolution was adopted December 9, 1954, whereby the board determined that
"* * * it is necessary, useful and suitable to acquire [defendants' property] * * * for the public purpose of a parking area for the Court House and the Hall of Records of Essex County, the same being public buildings of the County of Essex for the accommodation of the courts required to be held in the County of Essex and for the transaction of the public business, the location of public offices and the use of the departments and officers of the County of Essex, * * *."
After reciting that the board had been unable to acquire the property by agreement, the resolution directed county counsel to ...