Kolovsky, Matthews and Ard.
This appeal by the County of Bergen, in which plaintiff joined, is from an order which provides in pertinent part that:
The appeal is only from so much of the quoted order as directs the county to conduct a hearing on the merits of the borough's ordinance. No objection is advanced to the direction that the ultimate determination of whether the ordinance shall be approved or disapproved shall be manifested by an appropriate resolution of the county's board of chosen freeholders (county board).
The facts are not in dispute. Oradell Avenue is a county road under the jurisdiction of the county board of freeholders. It traverses the borough. On December 16, 1953 the county board had adopted a resolution limiting the weight of trucks on that road to ten tons. On November 17, 1971 the county board adopted a resolution repealing the
ten-ton weight limitation along Oradell Avenue. That resolution was approved by the State Commissioner of Transportation on December 7, 1971. Such approval was required before the resolution could become effective. N.J.S.A. 39:4-8.
On December 12, 1971, some three weeks after the board had adopted its resolution rescinding the weight limitation, the borough adopted ordinance No. 579. Section 3-2 of that ordinance purports to prohibit trucks weighing over ten tons from using the streets set out in Schedule V. One of the streets listed in Schedule V is Oradell Avenue between Grant Avenue and Forest Avenue. Two other streets listed in the Schedule, Ridgewood Avenue and Soldier Hill Road, are, according to plaintiff, also county roads.
On December 17, 1971 Oradell's attorney forwarded a copy of ordinance No. 579 to the board of freeholders and asked for a "review" of the provisions applying to county roads. He received a letter from the Director of Public Works, Supervisor of Roads, dated January 11, 1972, reading in part as follows:
With respect to Section 3-2, the Board has ruled that since County roads are considered to be designed for the movement of vehicles between municipalities, it is not reasonable to impose weight restrictions on vehicles using such roads, unless necessary to protect the integrity of a structure. The County can not, therefore, concur in the provisions of Section 3-2 and the accompanying Schedule V, insofar as they relate to County roads.
In March 1972 the present action was instituted by Ufheil against the borough and its chief of police seeking a declaration that the borough's ordinance, which would prevent Ufheil's trucks weighing more than ten tons from using the three county roads lying within Oradell, was invalid because the ordinance had not been approved by the county board of freeholders and by the State Commissioner of Transportation.
We interrupt the chronology of events to note that plaintiff was clearly entitled to the relief it sought, relief
designed to prevent further prosecution of its employees for alleged violations of the borough ordinance of December 12, 1971. The ordinance provision relating to weight limitation on Oradell Avenue is ineffective and will not become effective unless and until (1) the county board by resolution consents to the borough's regulating traffic on that county road, N.J.S.A. 39:4-197.2, and (2) the borough ordinance and the ...