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Deerfield Estates Inc. v. Township of East Brunswick

Decided: January 24, 1972.


For vacation and remand: Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed: None. The opinion of the Court was delivered by Mountain, J.


Plaintiff is the owner and developer of a substantial tract of land located in the defendant Township. On November 18, 1969, the municipal Planning Board granted final approval of the proposed subdivision of the tract. East Brunswick owns and operates a municipal water system which will be more fully described below. A condition of subdivision approval imposed by the Planning Board, to which plaintiff apparently acceded, was that water mains be installed, or their installation be effectively guaranteed.

On March 30, 1970, plaintiff wrote a letter to defendant demanding that the Township itself undertake the required installation. Upon defendant's refusal to do so, this suit in lieu of prerogative writ was instituted. Cross motions for summary judgment were brought, and after argument the trial court ruled in favor of defendant. The Appellate Division affirmed in a per curiam opinion, for the reasons given by the trial judge. Plaintiff appealed directly to this court, without filing a petition for certification, basing its right to do so upon the unsupported allegation that the case involves a substantial question arising under the Constitutions of the United States and of this State, R. 2:2-1(a).

We pause to consider the procedural question as to whether plaintiff may reach this court -- as has been attempted -- by the route of a direct appeal. We conclude that it may not. Our Constitution enumerates the various ways in which an appeal may be taken to the Supreme Court. In pertinent part it reads,

1. Appeals may be taken to the Supreme Court:

(a) In causes determined by the Appellate Division of the Superior Court involving a question arising under the Constitution of the United States or this State; [ N.J. Const. (1947), Art. VI, ยง 5, par. 1]

In implementation of this provision our rule of court directs that

Appeals may be taken to the Supreme Court from final judgments as of right: (1) in cases determined by the Appellate Division involving a substantial question arising under the Constitution of the United States or this State; [ R. 2:2-1(a)]

It will be seen that the rule, in two important respects, appears to be narrower than the constitutional provision. In the first place, it applies only to final, and not to interlocutory determinations. The scope of appeal of interlocutory orders is set forth in R. 2:2-2. In the second place, it requires that the constitutional question be substantial. The source rule, R.R. 1:2-1(a), did not contain the word, "substantial," which was first introduced in the comprehensive revision of the rules which became effective September 8, 1969. But this change in the rules did no more than make explicit a requirement which had always theretofore been found to be implicit. For instance in Starego v. Soboliski. 11 N.J. 29, 32 (1952), cert. den. 345 U.S. 925, 97 L. Ed. 1356, 73 S. Ct. 784 (1953) this court said,

The mere allegation that a cause involves a constitutional question gives no right to an appeal under the rule. There must be a showing that a substantial constitutional question is involved and this must be set out with particularity. If it were to be held to be adequate that a mere allegation as to deprivation of property rights in a trespass case is sufficient to satisfy the requirements of Rule 1:2-1(a), then every case involving real property can be appealed to this court by the inclusion in appellant's brief of the open sesame -due process.

Furthermore the question must be more than merely colorable. State v. Pometti, 12 N.J. 446, 450 (1953); State v. DeMeo, 20 N.J. 1, 5 (1955); In re East Windsor Mun.

Util. Auth. v. Shapiro, 57 N.J. 168, 170 (1970), cert. den. 401 U.S. 1010, 28 L. Ed. 2d 546, 91 S. Ct. 1256 (1971). And not only must the alleged constitutional issue be substantial and set forth with particularity, but it must also appear that it has not already been the subject of a conclusive judicial determination. Tidewater Oil Co. v. Mayor and Council of Carteret, 44 N.J. 338, 342 (1965). Finally, the general rule of appellate practice, that ordinarily no issue will be considered by the reviewing court unless raised and argued below, is true of a constitutional issue, unless it goes to the question of jurisdiction or presents a matter of real public importance. Where both these characteristics are lacking, review will normally be denied. Lettieri v. State Board of Medical Examiners, 24 N.J. 199, 206 (1957); 536 Broad St. Corp. v. Valco Mortgage Co., Inc., 5 N.J. 393, 395 (1950); Roberts Elec., Inc. v. Foundations & Excavations, Inc., 5 N.J. 462, 429 (1950); State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 207, 214 (1950), reh. den. 4 N.J. 374, 379 (1950).

Whenever the right to appeal is not clear, the proposed appellant should petition for certification, setting forth fully the basis of his claim to appeal as of right, together with such other reasons, if any, as he may feel entitle him to a further review. He thus avoids the risk that his appeal may be dismissed for lack of a substantial constitutional question, In re East Windsor Mun. Util. Auth. v. Shapiro, supra, and also presents to this court his most complete, and presumably most compelling statement of reasons to induce the court to act. Tidewater Oil Co. v. Mayor and Council of Carteret, supra, at 344.

In the light of these well settled principles, appellant obviously lacks standing to pursue a direct appeal as of right. No mention of any alleged constitutional issue was made before the trial judge or in the Appellate Division. In its brief before this court, appellant points out that East Brunswick operates its own water utility, that it requires developers to introduce water mains at their own expense and that

these thereafter become the property of the municipality. The brief then continues:

Plaintiff contends that such action by the municipality contravenes the provisions of Article I of the New Jersey Constitution and the Fifth Amendment of the United States Constitution and constitutes the taking of private property without due process and just compensation.

There is no other mention of any constitutional issue nor are we cited to any authority -- save the very general references in the excerpt quoted immediately above -- to sustain appellant's position. No substantial constitutional issue emerges. Also the lack of particularity is obvious. For instance, Article I of the New Jersey Constitution, to which we are cited, is a bill of rights and contains 21 separate paragraphs. We have no way of knowing upon which of these sections appellant places reliance. The reference to the Fifth Amendment to the Federal Constitution is equally vague. This amendment contains 5 distinct parts. Presumably appellant has in mind the clause stating that no person shall "be deprived of life, liberty, or property, ...

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