On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Bischoff,*fn1 King and Polow. The opinion of the court was delivered by King, J.A.D.
This appeal concerns the power of a municipality to pay for the expense of electrical current for street lights on the privately-owned streets of a retirement community. The controlling statute in pertinent part empowers a municipality to
Pursuant to this statute the Monroe Township Council adopted this ordinance on August 4, 1980:
The Council of the Township of Monroe may provide for the lighting of any roads or streets upon which the travel is sufficient, in the opinion of said governing body, to warrant such expenditures even though such roads or streets shall not have been taken over by said municipal governing body or dedicated and accepted as public highways.
Later that month this complaint in lieu of prerogative writs was filed by plaintiff, a taxpayer. He alleged that the ordinance was invalid as (1) unauthorized by the statute, (2) constitutionally prohibited and (3) in conflict with the Condominium Act, N.J.S.A. 46:8B-1 et seq. The Law Division judge rejected these contentions and entered summary judgment for defendant township.
The dispute here focuses on the private interior roadways of two adult condominium communities in the township -- Clearbrook and Rossmoor. These communities are designed for and limited to inhabitants over the age of 48 years. The street lights are in place, having been constructed by the developer. The question is whether the township may pay the electrical bill for lighting the communities' streets. The township currently pays the street lighting bill for all public streets in the municipality.
The streets in Clearbrook and Rossmoor are not dedicated to and accepted by the township as public highways. There are gates at the entrances to these communities which preclude uninterrupted and random travel through them. Entrance through the gates is permitted by an attendant to any person announcing a legitimate reason for entering the communities.
The record discloses that in 1980: (1) the combined population of the developments was 4,573, or 31% of the township's total
population; (2) the combined assessed valuation was $92,142,000, or 37% of the township's total valuation and (3) the combined total of units was 2,740, or 42% of the township's housing stock. Rossmoor, with 1,700 units, is 80% developed; Clearbrook, with 1,040 units, is 50% developed.
Plaintiff's first contention is that N.J.S.A. 40:67-23.1 was never intended to apply to purely private roadways. But the statute clearly says that a municipality may
The plain language of the statute defeats plaintiff's contentions. The act applies to any streets or roads, whether dedicated and accepted as public highways or not. As long as the governing body is satisfied that "travel is sufficient . . . to warrant such expenditures," it may act. See Island Improvement Ass'n v. Ford , 155 N.J. Super. 571, 574 (App.Div.1978), where we stated that while a municipality has no legal obligation with respect to private roads it may, by virtue of N.J.S.A. 40:67-23.1, voluntarily "assume a part or all of that obligation." Additionally, we note that plaintiff made no attack in the trial ...