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Disposmatic Corp. v. Mayor and Council of Town of Kearny

Decided: September 28, 1978.

DISPOSMATIC CORPORATION AND FLORENCE LAND RECONTOURING, INC., A JOINT VENTURE, AND RAMON LAMELA, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE TOWN OF KEARNY, DEFENDANT



Kentz, J.s.c.

Kentz

This matter is brought to the court by an order to show cause why an injunction should not issue and on defendant's motion for summary judgment. The undisputed facts are as follows. The Town of Kearny (Kearny) is the owner of four parcels of land totaling over 1,200 acres which are currently being utilized as a landfill. Kearny has advertised for bids to be submitted for a lease of this property for ten years beginning April 14, 1979 for the purpose of continuing the landfill operations. Bids were originally scheduled to be received on September 6. There was an addendum to the bid specifications which stated that bids would be accepted orally by auction bidding and that sealed bids were not required.

Plaintiffs, who are a taxpayer and a joint venture composed of two New Jersey corporations, applied for and received a temporary restraining order on September 5. Under that order Kearny was restrained from accepting bids pending this court's determination of plaintiffs' contention that the bidding

procedures proposed by Kearny were improper and that sealed bids were required by law.

I. Standing

Initially, defendant challenges the standing of plaintiff joint venture to bring this action. It does not question the standing of plaintiff Lamela as a taxpayer to institute this proceeding, conceding that the right of a taxpayer to challenge municipal or other governmental bidding procedures has long been recognized by the courts of this State. See K.S.B. Tech. Sales v. North Jersey Dist. Water Supply , 75 N.J. 272, 279-280 (1977); Camden Plaza Parking v. Camden , 16 N.J. 150, 158-159 (1954); Waszen v. Atlantic City , 1 N.J. 272, 276 (1949).

In light of the fact that plaintiff Lamela clearly possesses sufficient standing to maintain this action, the question of plaintiff joint venture's standing need not be decided by this court. The presence of one plaintiff with standing is sufficient to enable a court to pass on the merits of a case. See K.S.B. Tech. Sales v. North Jersey Dist. Water Supply; Camden Plaza Parking v. Camden, supra.

II. Summary judgment motion

Defendant moves for summary judgment on the ground that since there is no genuine issue of material fact present here, defendant is entitled to judgment as a matter of law. Upon consideration of the pleadings, affidavits and argument of counsel, this court has determined that there is no genuine issue of material fact and that the matter is now ripe for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 73-75 (1954).

I will now proceed to a consideration of the legal issue involved as to whether sealed bids are a statutory requirement for the awarding of a lease of municipality-owned property. Plaintiffs' contention is that the agreement in question is not a lease but rather a contract for the provision

of services and thus sealed bids are required by the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.) (Contracts Law). Defendant has conceded that if such were the case, sealed bids would be required. However, Kearny argues that the agreement is actually a lease and is governed by the Local Lands and Building Law (N.J.S.A. 40A:12-1 et seq.) (Lands Law) which does not require sealed bids. Plaintiffs nevertheless maintain that sealed bids are also required by N.J.S.A. 40A:12-14. Since it is not disputed that the Contracts Law expressly requires sealed bids if the agreement is one merely for services, ...


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