On appeal from Superior Court, Law Division, Bergen County.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
Forest Avenue is a county road, about four miles long, running through the Boroughs of Paramus, Oradell and Emerson to the Westwood boundary line in Bergen County. It was established by successive grants and dedications beginning in 1920. Although the donated right-of-way was 66 feet wide, up until 1957 it had been improved and used as a street only to the extent of 40 feet. Twenty-two feet of this width was paved, with a nine-foot shoulder remaining on either side. Many of the landowners situated on Forest Avenue constructed curbs, built sidewalks and planted grass, trees and shrubs in the unused portion of the right-of-way which comprised 13 feet on each side of the shoulders of the road.
On March 20, 1957 the Bergen County Board of Freeholders adopted a bond resolution authorizing, inter alia, the improvement of Forest Avenue, 50% of the necessary funds to be supplied by the county with the remainder coming from the Federal Government under the Federal Highway Act, 23 U.S.C.A. § 1 et seq. The resolution contemplated that the width of the existing roadway would be expanded to 46 feet and entirely paved with bituminous concrete.
The Borough of Paramus and a number of its residents owning property along Forest Avenue instituted an action in lieu of prerogative writ, endeavoring to have the bond resolution set aside in so far as it applied to Forest Avenue and to enjoin the County of Bergen from proceeding with the projected improvements. They also asked for "such other and further relief as may be required."
It was charged the resolution constituted "an unreasonable confiscation and arbitrary imposition," was "an unconstitutional deprivation of their property without due process of law," and gave rise to "a menace to the health, safety, and general welfare of the said abutting property owners. * * *"
In particular, the plaintiffs asserted that the proposed expansion of the roadway by three feet on either side would:
(1) deprive them of some of the improvements they had made between the existing edge of the roadway and their property lines; (2) destroy the sidewalk and cause pedestrians to walk in the street where their lives would be endangered; (3) result in an enormous increase in traffic inconsistent with the original public easement and making ingress and egress from driveways difficult and dangerous; and (4) compel property owners who had not improved the right-of-way to either side of the existent roadway to remove boulders, trees and other obstructions.
The defendants' answer, in substance, was a denial and also contained a separate defense as to failure to institute suit within time, with which we are not here concerned, and a second defense contending "[t]he complaint is legally insufficient, and fails to state a legal cause of action."
The defendants served a notice of motion for summary judgment upon the ground that the "Plaintiff's claim is legally insufficient and that no material issue of fact is raised by said pleadings," and upon the additional ground that there "exists no genuine issue as to any material fact challenged and that the Defendant, the County of Bergen, is entitled to a judgment as a matter of law."
On that motion, without benefit of affidavits from either side, summary judgment in favor of the defendants was awarded. The plaintiffs appealed to the Appellate Division, and we granted certification on our own motion prior to argument below.
There is no challenge to the efficacy of the procedure by which the bond resolution was passed. Plaintiffs argue that the invalidity of the resolution with respect to Forest Avenue lies principally in the possibility that the enjoyment of their property will be diminished and in the certainty that the improvements ...