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Breuer v. Borough of Montvale

Decided: May 6, 1959.

WILLIAM BREUER AND JOSEPH D. PASQUALE, SR., PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF MONTVALE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.

Haneman

Defendant appeals from that portion of a summary judgment for plaintiffs by which the Law Division declared void a borough ordinance authorizing the construction of sidewalks as a general improvement, i.e. , one, the cost of which would be payable entirely from municipal tax revenues.

Three points are urged for reversal of the judgment under appeal: the municipality has the power to construct sidewalks as general improvements under R.S. 40:56-1 or R.S. 40:48-2; the ordinance, being one within the essential power of the municipality, was not void but voidable only, and

therefore a subsequent amendment of R.S. 40:65-1, which would permit sidewalks to be constructed as a general improvement, cured any defect in the ordinance; plaintiffs' right of action is barred for their failure to observe the time limitations set forth in R.S. 40:49-27.

The pertinent provision of the ordinance reads as follows:

"That there is hereby authorized, pursuant to the applicable statutes, as a general improvement, the construction of concrete curbs and sidewalks along the north side of Grand Avenue from Hillcrest Avenue to a point approximately 1900 feet easterly therefrom, together with the necessary grading and other incidental work, all in accordance with plans and specifications prepared by Hobelman, Argenti & Kuhn, Borough Engineers, dated April 1958, and heretofore approved by this Council and filed in the office of the Borough Clerk."

Defendant concedes that it undertook the construction of the proposed sidewalks as a general improvement under R.S. 40:56-1, as amended by L. 1951, c. 175, p. 656, ยง 1; that the work to be done was new construction and not the maintenance or repair of existing improvements; that the borough council was motivated to enact the ordinance by a desire to protect those elementary school children who theretofore had been forced to walk to and from school on a heavily trafficked roadway; and that the roadway adjoining the sidewalks is under the control of the County of Bergen.

R.S. 40:56-1, as amended, makes provision for various improvements which may be undertaken as local improvements, ("the cost of which, or a portion thereof, may be assessed upon the lands in the vicinity thereof benefited thereby") or as general improvements ("to be paid for by general taxation"). No mention is made in that statute of sidewalk construction. See Weldon v. Village of South Orange , 103 N.J.L. 235, 237 (Sup. Ct. 1927).

A sidewalk has long been regarded as a part of the premises to which it is attached, and hence the construction of a sidewalk has been regarded as a proper burden of the land to which it is appended. State (Agens, Prosecutor) v.

Mayor, etc., of Newark , 37 N.J.L. 415, 423 (E. & A. 1874); Weldon v. Village of South Orange, supra.

At the time when the ordinance before us was adopted there existed only two specific methods through which a municipality could provide for the cost of sidewalk improvements, R.S. 40:65-1 to -13, as amended. The methods were these: (1) by according the abutting owner an opportunity to make such improvement at his own expense, and upon his failure so to do, the municipality could proceed therewith and impose the full cost thereof upon the abutting owner, R.S. 40:65-1 to -9; or (2) the municipality could undertake the improvement where the street, parkway or highway concerned was under the control of any county board or commission, after obtaining approval of the plans and ...


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