Cross-motions for summary judgment are before me. Plaintiffs are landowners in defendant city who brought an action in lieu of prerogative writs for the purpose of challenging the validity of certain assessments made under N.J.S.A. 40:56-1 et seq.
In 1970 the city determined to install bulkheads on the beach from 46th Street to 55th Street, the cost of same to be defrayed in part by grants from the State Government, appropriations by the city and assessments for local improvements under the aforementioned statute.
It adopted two ordinances, number 445 which provided for the improvement between 46th and 47th Streets, and number 437 which provided for the improvement between 47th and 55th Streets.
Paragraph IV (5) of Ordinance 445 directed that the area between 46th Street and 47th Street extending from the beach to the southeasterly line of Pleasure Avenue be designated as the area within which property owners would be assessed to the extent as outlined in the ordinance. Resolution 186 provided substantially the same thing with respect to the rest of the area between 47th and 55th Streets.
Inasmuch as the city did not have an officer or board charged with the duty of making general assessments of taxes, or any other board as referred to in N.J.S.A. 40:56-21, it appointed assessment commissioners under N.J.S.A. 40:56-22 consisting of three resident land owners of
the municipality for the purpose of making "the assessments for benefits for such improvement."
The primary attack upon the assessments ultimately made by these commissioners arises from the fact that they were not free to determine what lots were benefited by the improvement so that assessments should be made against same. Thus, plaintiffs contend that the city illegally usurped the function which the statute charged the assessment commissioners to perform.
Depositions of two of the three assessment commissioners make it abundantly clear that although they examined the locus of the improvements, they never considered benefits sustained by lands outside of the area designated by the governing body through the ordinance and resolution respectively.
I agree with this contention. The city was without authority to predetermine the benefited area. That function is imposed by the statute exclusively on the assessment commissioners. Had the commissioners ignored that direction and had they arrived at the same assessment as reported by them, there probably would be no basis for this attack. However, they followed the direction of the governing body. State, Hunt, Pros. v. Rahway, 39 N.J.L. 646 (Sup. Ct. 1877), aff'd o.b. 40 N.J.L. 615 (E. & A. 1878).
In Sinclaire v. West Hoboken, 58 N.J.L. 129 (Sup. Ct. 1895), one of the reasons assigned by the prosecutors of the writ of certiorari was that the commissioners did not exert their own judgment in defining the area of land which was specially benefited by the improvement because, having done so earlier, the municipal body had rejected the first report of assessments and directed them to reassess a smaller area. The statute involved in that case directed the commissioners to determine and assess the costs and expenses of improvement "on all the land and real estate, in the opinion of said commissioners, specially ...