Decided: November 21, 1973.
TOWNSHIP OF WAYNE IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; AND NEWTON E. MILLER, AS MAYOR OF THE TOWNSHIP OF WAYNE, WALTER JASINSKI, JAMES MINGO, ESTELLE PERRY, JOSEPH VADALA, THOMAS ELM, LEONARD PINE, DAVID WAKS, AND HARRY RUDIGER AS MEMBERS OF THE GOVERNING BODY AND INDIVIDUALLY, PLAINTIFFS,
THE COUNTY OF PASSAIC, A BODY POLITIC OF THE STATE OF NEW JERSEY, AND BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF PASSAIC, BLOOMINGDALE BOROUGH, CITY OF CLIFTON, BOROUGH OF HALEDON, BOROUGH OF HAWTHORNE, BOROUGH OF POMPTON LAKES, BOROUGH OF PROSPECT PARK, BOROUGH OF RINGWOOD, BOROUGH OF TOTOWA, BOROUGH OF WANAQUE, BOROUGH OF WEST MILFORD, AND BOROUGH OF LITTLE FALLS, DEFENDANTS. JOHN MAZZACCA, JR., BRIAN BERKIN, BERNARD ROGOFF, ROBERT ALTSHULER, THOMAS ELM, JR., ESTELLE PERRY, DAVID WAKS, ANN GERHOLD, ANDREW MILITELLO, BERNARD ROSEN, ALEX BROWN, PETER GARINO AND WALTER HOFFMAN, INDIVIDUALLY AND AS TAXPAYERS IN THE TOWNSHIP OF WAYNE, COUNTY OF PASSAIC AND AS REPRESENTATIVES OF A CLASS OF INDIVIDUALS WHO UTILIZE RIVERVIEW DRIVE AND ARE AFFECTED BY SAID ROUTE, PLAINTIFFS, V. PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, EDWARD O'BYRNE, DIRECTOR, JOSEPH F. D'ARCO, CHARLES S. DORMAN, DONALD A. FARINELLA, EDWARD GOLA, SIDNEY H. REISS, AND GEORGE J. SOKALSKI, INDIVIDUALLY AND AS A GOVERNMENTAL UNIT, DEFENDANTS
These consolidated matters are before the court on cross-motions for summary judgment. At the hearing all parties agreed that the motions for summary judgment were to encompass all issues in controversy so that a full and final adjudication could be made. R. 4:46.
On October 5, 1972 the Township of Wayne filed a complaint in lieu of prerogative writs and for a declaratory judgment. This action challenges a policy of the Passaic County Board of Chosen Freeholders which requires that, as a condition precedent to any county improvement of a county highway, a municipality acquire and convey to the county at no cost all necessary easements or rights-of-way for that portion of a proposed road improvement within the boundaries of the municipality. In essence, the complaint seeks the following relief: (a) to declare this county policy arbitrary, capricious, and unlawful; (b) order the county to cease and desist from enforcing its policy; (c) order the county to institute appropriate proceedings to acquire the necessary property interests to improve Riverview Drive, and (d) order the county to reimburse the township for the administrative expenses and the acquisition costs for easements already acquired by the municipality along Riverview Drive and Ratzer Road.
The answers of the county and other municipalities, taken together, essentially denied the allegations of the complaint and asserted, as affirmative defenses, that road improvements are matters for the discretion of the freeholder board; that there is no arbitrariness or capriciousness involved, and that the municipal acquisition and conveyance of the easements constitute gifts to the county. The Borough of Totowa cross-claimed, substantially asserting the same claim as plaintiff as to the illegality of the county policy.
In the second case, plaintiffs, taxpayers of the Township of Wayne, individually and as representatives of a class, seek an order to compel the county to widen Riverview Drive, initiate necessary condemnation, declare the county policy unlawful, and reimburse the municipality for previously
acquired easements. These two cases were ordered consolidated on February 23, 1973.
On August 1, 1973 the Board of Chosen Freeholders adopted a resolution authorizing county acquisition of the necessary rights-of-way for the improvement of Riverview Drive in the Borough of Totowa, either by purchase or by condemnation. This resolution specifically recites that the authorized county acquisition is "a special exception for Riverview Drive in the Borough of Totowa to [the county's] previously adhered-to, long-standing policy with respect to municipal cooperation for acquisition of easements for County road widening projects."
Insofar as the county policy itself is concerned, this controversy is ripe for summary judgment. There is no factual dispute as to the existence or dimensions of that policy; the pleadings, affidavits, deposition, and the resolution of the freeholder board show clearly that the county has required municipal acquisition and conveyance of needed easements before any road improvement project is undertaken by it. The issues for determination are matters of law, not matters of fact. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954); Felbrant v. Able, 80 N.J. Super. 587, 590 (App. Div., 1963). However, this controversy, insofar as it pertains to Riverview Drive in the Borough of Totowa, has been mooted by the recent resolution of the board and need not be considered further.
I. County Road Improvements
Defendants argue that the county policy is a logical extension of the county's discretionary authority over road improvements. The New Jersey Constitution of 1947 does provide for implied powers following a grant of express authority:
The powers of counties and such municipal corporations shall include not only those granted in express terms ...
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