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MacBain v. Borough of Alpine

A-2304-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

TAXATION; MUNICIPALITIES; SPECIAL ASSESSMENTS—Although local improvements benefitting a small group of property owners can be assessed against those benefitted, a municipality can’t elect to make a major improvement where an insignificant repair or cure would suffice and then burden the affected owners.

The road in front of a landowner’s property was rendered impassable by a barrier at one end and a bridge in disrepair at the other. The landowner sued the municipality to repair the road so that it was usable. The lower court found that the road was a public highway and ordered the municipality to restore the bridge or remove the barrier. The municipality appealed, claiming that the court could not make it bear the entire cost and expense of repairing the road.

Road repairs or improvements may be undertaken as local improvements, which are paid for by those in the vicinity benefitted by it, or as general improvements, which are paid for by the entire municipality through taxes. Normally, the decision as to whether a certain project is a general or a local improvement rests with the sound discretion of the municipality. Here, however, the Appellate Division held that to decide to treat the repair of this particular bridge as a local improvement and charge the expense to the owner would be an abuse of the municipality’s discretion. The municipality had two choices: it could remove the barrier at one end of the road, or repair the bridge at the other end. The cost to remove the barrier would have been minimal. Therefore, the Court held that if the municipality chose to repair the bridge, it could not charge the owner because the owner had a right to reasonable access to the public highway system. As a result, the Court affirmed the lower court’s decision, holding that the municipality was to bear the cost of the repairs.

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