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Township of Springfield v. New Jersey State Highway Department

Decided: June 22, 1966.

THE TOWNSHIP OF SPRINGFIELD, PLAINTIFF,
v.
NEW JERSEY STATE HIGHWAY DEPARTMENT AND PUBLIC CONSTRUCTORS, INC., DEFENDANTS



Civil action in lieu of prerogative writs.

Feller, J.s.c.

Feller

Plaintiff has instituted this action in lieu of prerogative writs seeking the following relief, as set forth in their complaint, against defendants:

"(a) Restraining and enjoining Public Constructors, Inc., their agents and servants, from continuing to burn plant life, trees and debris in the Township of Springfield without a burning permit.

(b) Commanding Public Constructors, Inc., to obey the Ordinances of the Township of Springfield.

(c) Commanding Public Constructors, Inc., to obey the statutes and codes of the State of New Jersey.

(d) Commanding the New Jersey State Highway Department to obey the Statutes and codes of the State of New Jersey.

(e) Restraining and enjoining Public Constructors, Inc., their agents and servants, from continuing to maintain a public nuisance.

(f) Declaring that Public Constructors, Inc., are in violation of the Ordinances of the Township of Springfield.

(g) Declaring that the Public Constructors, Inc., are in violation of the New Jersey Air Pollution Control Code.

(h) Declaring that Public Constructors, Inc., are in violation of the Public Health Nuisance Code of New Jersey.

(i) Declaring that the plaintiff, Township of Springfield, is a third party beneficiary of the Contract between the codefendants.

(j) Declaring that the Township of Springfield has the authority to require that the New Jersey State Highway Department conform to and obey all codes and statutes of the State of New Jersey while in the Township of Springfield.

(k) Declaring that the Township of Springfield has the authority to require that the Public Constructors, Inc., conform to and obey all codes and statutes of the State of New Jersey while in the Township of Springfield.

(l) Declaring that the Township of Springfield has the authority to require that Public Constructors, Inc., conform to and obey all Ordinances of the Township of Springfield while in the Township of Springfield.

(m) Such other relief as the Court may determine.

(n) Damages.

(o) Costs."

A reading of these claims for relief shows that only claims (d), (j), (m) and (o) are directed against the State of New Jersey. The remainder of the claims are directed at defendant Public Constructors, Inc. After several hearings, and with the intent to facilitate this action, the parties stipulated that the action is to be considered on the basis that all the parties involved have filed motions for summary judgment.

Plaintiff is a municipal corporation of the State of New Jersey. Defendant State Highway Department is a department and agency of the State. Public Constructors, Inc., the second defendant, is in the business of contracting to do heavy construction work. As part of its business, it has contracted with the State Highway Department to do a portion of the work on Route 78, a road-building project which is part of the Federal Interstate and State Highway Defense System. The importance of this project and the necessity of the speedy completion of it cannot be overestimated.

Part of this project is on lands within plaintiff township but which have been purchased by the State for use in the construction of the highway in question. Pursuant to the job of constructing such a highway as is called for by its contract with the State, defendant Public Constructors, Inc. found it necessary to clear the state-owned lands within the Township of Springfield of trees and shrubs and other obstructions. In furtherance of this clearing aspect of its job, Public Constructors found it advisable to burn the trees and other plant life which it found necessary to remove. As such, Public Constructors, whether required to or not, applied for and obtained a permit to burn on the state-owned property within the township.

It then proceeded to burn the materials which had to be cleared in order for it to fulfill its contract with the State. The uncontroverted affidavits show that no wood, trees or bushes, or any other material was added to any fire after 2:30 P.M. each day, and the fires were cared for and watched by at least eight men between 7 A.M. and 5:30 P.M. The affidavits

further show that after 5:30 P.M. two men periodically checked and controlled the embers.

Initially, the established facts are that representatives of the local fire department, with the approval of the township, were employed to assist in watching the fires. However, after the burning had been carried on for a period of time, these men were withdrawn because of complaints made by residents of the area about smoke ...


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