For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the Court was delivered by Haneman, J.
This appeal concerns a special assessment levied by defendant borough upon plaintiff as a local improvement under N.J.S.A. 40:56-1 et seq., for construction of a sewer system.
Defendant is engaged in the installation of sanitary sewer systems throughout the municipality. The project was undertaken in succeeding stages involving different sections of the borough. For a general factual discussion see Gabriel v. Borough of Paramus, 45 N.J. 381 (1965). This litigation concerns the second stage involving a section in which plaintiff is the owner of 260 acres of land used as a golf course. Although so used, the tract is placed by the zoning
ordinance in the highest residential category. The municipality directed the payment of 38% of the cost of construction be raised as a general municipal obligation and 62% by a special assessment for the benefits accruing to the property owners served by the sewer. The total amount of said special assessment may not exceed the above referred to 62%. N.J.S.A. 40:56-24. The reason for such allocation lay in the fact that the entire borough used and benefited by the trunk sewers, pumping stations and force mains, and the properties immediately adjacent to laterals alone used and were specially benefited by such laterals for sewage disposal. The borough constructed a trunk sewer line approximately 3,200 feet in length along plaintiff's easterly boundary. The closest building to this trunk sewer is the club house which is approximately 1,800 feet distant and has its own private sewer. Although the cost of the laying of trunk sewers was ordinarily assumed by the borough, in this instance that cost was not so to be defrayed because arrangements had been made for the special use thereof as a lateral permitting the adjacent lands to tap into the trunk for sewage transmissions. Accordingly, the cost was to be defrayed by a special assessment as if the trunk main were a lateral.
Upon the completion of the project, the sewer assessment commissioners proceeded to make assessments as provided by N.J.S.A. 40:56-26, 27. The method pursued was adequately and aptly described in the trial judge's opinion as follows:
"* * * the 'jumping off' point was an estimated assessment of $11.40 per front foot plus about $206.50 for the house connection from the lateral (street) sewer to the curb line. Mr. Arenander made the estimates and the Mayor and Council printed them in a written report to the taxpayers of Paramus. From the tax records, the Sewer Assessment Commissioners obtained addressographed cards for each parcel of property in Stage II, including acreage, number of plots, block and lot numbers, street or post office addresses, and the tax assessor's classification and valuation. The information, plus other information subsequently developed, was transposed to IBM punched cards, and when the latter were run through a computer, desired printouts of tabulated information were obtained. The computer
had memory -- storage and retrieval capability, plus the ability to make mathematical calculations. It exercised no judgment, of course, and in no sense made the assessments. Several print-outs were obtained, and information was added and deleted until the final print-out showed three significant figures for each parcel: first, a 'sewer benefit' assessment; second, a 'connection charge'; and third, a 'total assessment.' The connection charges are not in dispute. They were assessed separately, pursuant to N.J.S.A. 40:56-33, and were $236.55 for a 'short' connection from the 'lateral' sewer in the center of the street to the curb line or $286.54 for a 'long' connection from the lateral to the property line. The sewer engineer supplied the figures. What is in controversy is the 'sewer benefit' assessment, which when added to the 'connection charge' resulted in the 'total assessment.'
The sewer engineer had recommended, and the Mayor and Council apportioned, the total cost of Stage II of $5,200,000., into the borough's share of $2,362,000. to be raised by general taxation and $2,838,000. to be levied as assessments for benefits. This apportionment is not disputed. The total 'connection charges' were $369,350.49 and these were deducted from the $2,838,000. leaving a balance of $2,468,649.51 to be assessed.
At this point the Sewer Assessment Commissioners arbitrarily decided upon a 'basic charge' of $100. for each of the 1,738 assessable parcels, for a total of $173,800. The significance of this 'basic charge' will hereafter become apparent, but at this point the Commissioners deducted this total from the $2,468,649.51, leaving a balance of $2,294,849.51 to be further apportioned.
Then, without any formula, or any records as to how they developed the amount, the Commissioners decided to assess acreage at $1,200. per acre and all other parcels on the basis of 'units.' They decided that a 100x125 foot lot would get 100 units, and all other lots would receive the number of units that in the 'judgment' of the Commissioners represented the 'increment in value to the property due to the sewer improvement.' Mr. Lubar, a certified public accountant, explained that no records were kept as to how the commissioners reached their decision on each piece of property. He further testified that in determining the number of units to be allocated to each lot, they took into account corner influence, unusual depth or lack of it, exceptional topographical conditions, etc.
The units, of course, really amounted to a modified front footage basis of allocation, and the $1,200. per acre figures were subsequently converted to 'units' by dividing by 10. At this point, it should be noted, the Commissioners had preliminary totals for units and dollars. There was no satisfactory explanation as to why a divisor of 10 was applied to the acreage amount, and it is readily apparent that selection of the divisor would determine the ultimate value of a unit. During this process, the Commissioners also decided that 195 lots ...