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Cirasella v. Village of South Orange
Decided: November 2, 1959.
JOHN E. CIRASELLA, ET UX. (AND 19 OTHERS), PLAINTIFFS-RESPONDENTS,
VILLAGE OF SOUTH ORANGE, DEFENDANT-APPELLANT
On appeal from a final judgment of the Superior Court, Law Division, in which court the following opinion was filed.
Goldmann, Conford and Freund.
This is a statutory appeal by 11 property owners from the confirmation by the Trustees of the Village of South Orange of an assessment levied by the board of assessment of said village under which plaintiffs' lands were assessed certain sums for the cost of a storm sewer in Ralston Avenue, between Vose Avenue and Scotland Road.
N.J.S.A. 40:56-54 provides:
"* * * the owner of any property assessed for benefits or awarded damages incidental to the improvements as distinguished
from damages for real estate to be taken under this chapter, may within thirty days after confirmation of such assessment or award appeal from the same to the Superior Court * * *."
"This case has been submitted without testimony, for the court's determination on briefs and oral argument and on certain stipulated facts.
"The Village of South Orange derives its power to authorize the storm sewer improvement in question by virtue of R.S. 40:56-1 et seq. The statute authorizes the assessment commissioners to make a just and equitable assessment of the benefits conferred upon any real estate by reason of such improvement, having due regard to the rights and interests of all persons concerned as well as to the value of the real estate benefited.
"All assessments levied under this chapter for any local improvement shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement."
"The facts in this case, as stipulated to by the parties, indicate that assessments were levied upon all properties located in what was considered by the assessors as a single drainage area and all were assessed on the basis of the square foot area of said property with the same rate per square foot applicable to all properties. While all the assessed properties were deemed part of a single drainage area, it is recognized that the plaintiffs' lands have a higher elevation than certain other lands in the drainage area. The storm sewer in question was authorized and constructed in order to provide for the safe and orderly use of the streets in the lower portion of the drainage area, not adjoining the plaintiffs' properties, and in order to avoid ...
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