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Summer Cottagers'' Association of Cape May v. City of Cape May

Decided: October 24, 1955.

SUMMER COTTAGERS' ASSOCIATION OF CAPE MAY, NEW JERSEY, A CORPORATION OF THE STATE OF NEW JERSEY; C. WEBSTER ABBOTT, JR., DOROTHY M. ABBOTT, JULIANA Y. BOAK, CROSBY N. BOYD, ELIZABETH U. BOYD, NORBERT J. BURKE, MARGUERITE L. BURKE, JAMES M. CLARK, JR., LAURENCE V. COCHRANE, DOROTHY L. COCHRANE, ELIZABETH P. COLAHAN, JAMES K. DAVIS, ELLEN H. DAVIS, JOHN A. DIMOND, MARGUERITE M. DIMOND, JAMES B. DOUGLAS, HALLIE H. DOUGLAS, MABEL REED EDWARDS, H. A. EVERLING, E. K. EVERLING, BASIL M. GRAHAM, ELEANOR E. GRAHAM, THOMAS W. HARRIS, JR., DOROTHY T. HARRIS, THOMAS HART, MARGARET N. HART, DAVID W. HOPKINS, ALICE CARNETT HOPKINS, JENNIE R. JAEGLE, EDGAR H. KIBLER, HELEN L. KIBLER, HENRY BURKE MATHEWS, KATHERINE G. MATHEWS, WILLIAM P. MEEKER, ELEANOR NICHOLS MEEKER, CHARLES F. MITCHELL, ALICE P. MITCHELL, ELIZABETH L. MONTGOMERY, JOHN R. MORROW, HAZEL R. MORROW, OLIVE L. NEWBOLD, MIRIAM G. OSBURN, CHRISTINE F. PORTER, GEORGE H. VOELKER, ELINOR M. VOELKER, GEORGE W. WAGNER, JOSEPHINE K. WAGNER, CHARLES H. WEBBER, JULIA W. WEBBER, EDWARD E. WHITE AND MARGUERITE M. WHITE, PLAINTIFFS-APPELLANTS,
v.
CITY OF CAPE MAY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; SAMUEL F. ELDREDGE, SOL NEEDLES, JR., AND CARL R. YOUNGBERG, COMMISSIONERS OF THE CITY OF CAPE MAY; OLIVER ELWELL, BUILDING INSPECTOR OF THE CITY OF CAPE MAY; ADOLPH M. KOCH AND EVELYN KOCH, HIS WIFE; LIONEL FRIEDBERG AND NAN FRIEDBERG, HIS WIFE; HESSEL FRIEDBERG AND ZIPPORAH FRIEDBERG, HIS WIFE; HARRY A. MANN AND BEATRICE MANN, HIS WIFE; HERBERT J. LUCHENBACH; AND BOARDWALK NATIONAL BANK, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On certified appeal to the Appellate Division from the Law Division of the Superior Court.

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

Heher

By a civil action in lieu of certiorari, the plaintiff nonprofit corporation organized for the civic improvement and betterment of the Cape May community and 51 local taxpayers challenge the validity of the sale and conveyance by the local governing body to the defendants Adolph M. Koch and Evelyn, his wife, Lionel Friedberg and Nan, his wife, and Harry A. Mann and Beatrice, his wife, on May 1, 1953, of eight lots of land in the City of Cape May, numbered 5 to 12 inclusive on the city's tax map. For want of compliance with R.S. 40:60-26, it is said, the purported conveyance is null and void; and, by the first count of the complaint, judgment to that end is prayed. By a separate count, complainants sought the removal of an electric sign having a total area on three sides in excess of 50 square feet, placed on the roof of a motel erected on the lands so conveyed, as in violation of the local building zone ordinance and "detrimental to the neighborhood" and depreciative of property values. It was made known on the oral argument that sometime during the course of the litigation the sign was demolished in a windstorm and had not been replaced.

There was judgment for defendants in the Law Division of the Superior Court, 34 N.J. Super. 67 (1954); and an appeal to the Appellate Division taken by the corporate plaintiff and 44 of the 51 individual plaintiffs is here for decision by certification on our own motion.

The sale was had under subdivision (a) of R.S. 40:60-26, as amended by L. 1948, c. 245, authorizing the governing body of a municipality to sell lands or buildings not needed

for public use "by public sale to the highest bidder after public advertisement thereof in a newspaper circulating" in the municipality "by two insertions at least once a week during two consecutive weeks, the last publication to be not more than seven days prior to the sale." Where the sale is to be public, the governing body may be resolution "fix a minimum price to be included in the advertisement of sale" and "public notice thereof given at the time of sale," or may by resolution provide that "upon the completion of the public sale, the highest bid made thereat shall be subject to acceptance or rejection by the governing body." There are alternative provisions for private sale on public notice and for a public or private sale on terms prescribed by resolution of the governing body, with the "approval in writing" of the director of the State Division of Local Government. Of this, more hereafter.

The contention is that (a) the "public were not given proper notice of the sale," and (b) the conditions of sale "combined with the circumstances surrounding it were such as to prevent a public sale of the lands to the highest bidder," and so the proceeding is utterly void and the doctrine of laches and estoppel has no application.

The Superior Court found that the deficiencies "are purely technical," not of such gravity as to render the sale void; that while the conditions of sale "gave Koch and his associates a competitive advantage," "they were not of such purpose as to prohibit and prevent any other person from bidding," and the sale cannot be adjudged void "since the defendants acted in good faith, have expended large sums of money, have incurred financial obligations," and, moreover, the sale "was not obtained by fraud, collusion or deceit," and plaintiffs have not moved with due diligence.

There were departures of substance from the prescribed procedure which vitiated the statutory policy of public notice and free competitive bidding.

The city's resolution of April 17, 1953 provided for a sale on May 1 to the highest bidder, bidding at least the fixed minimum price of $800 for the eight lots, on these "special

terms and conditions": "Building to start within 24 hours from date of sale, completion within 90 days"; the building "to contain at least 20 units such as efficiency apartment or hotel rooms," conforming "in every detail to plans filed at City Hall." The tax collector was directed to advertise the sale in the Cape May Star and Wave in its issues of April 23 and 30; and there was provision for the payment of the ...


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