Mahwah November 16, 2011 THE VILLADOM TIMES IV • Page 9 Appellate court decides to keep Olney Road closed by Frank J. McMahon A three judge panel of the Appellate Division of Superior Court has affirmed a lower court’s ruling that effectively upholds Mahwah’s 2009 ordinance which closed Olney Road to through traffic due to public safety concerns. Olney Road extends between Miller Road and Stephens Lane, which is adjacent to the closed northern end of Olney Road. Judges Jose L. Fuentes; William P Gilroy, who is now retired; and William E. Nugent issued their unpublished opinion on Oct. 31 in a case that was argued on Nov. 4, 2010. The panel affirmed a February 2010 Superior Court order granting summary judgment to the township and dismissing a claim by plaintiff Ronald Cabezas, who challenged the validity of the township’s ordinance closing the street to through traffic. Cabezas lives on Stephens Lane near its intersection with Olney Road. When the township adopted an ordinance in July 2009 which restricted the use of 15 feet of Olney Road between Stephens Lane and Miller Road to use only by “bona fide” emergency vehicles, or public utility and township vehicles performing public utility or maintenance functions, he filed a complaint in the Chancery Division of Superior Court, which handles cases where the plaintiff is asking for something other than money. Cabezas challenged the adoption of the ordinance, calling it “illegal and violative of law.” In December 2009, the township filed a motion for summary judgment arguing, among other things, that Cabezas’ complaint was not filed within the required 45 days of the enactment of the ordinance. The case was transferred to the Law Division of Superior Court in January 2010, and the township renewed its summary judgment motion. Cabezas’ attorney at the time argued that Cabezas took a “declaratory judgment action” in order to determine his rights under the ordinance and his right to use the portion of Olney Road that was closed. The attorney said the resident’s action was not subject to the 45 day-filing requirement of the New Jersey Court Rule. A Superior Court judge found, however, that the action was actually an “action in lieu of prerogative writ,” and it was not clear which legal rights of Cabezas were being affected by the ordinance. The resident’s lawsuit was dismissed “with prejudice,” which means the case was decided on its merits and a subsequent lawsuit on the same cause of action is barred even though Cabezas argued that the 45-day time frame should be relaxed because the action was a matter of public interest. Cabezas then appealed that decision to the Appellate Division of Superior Court, which has now agreed with the trial court and pointed out that, while there are 11 exceptions to the 45-day rule, none of those exceptions applies in Cabezas’ case. The panel found that, even if the 45-day limit were expanded, the ordinance would have withstood Cabezas’ challenge. “A municipality is statutorily authorized to limit the use of streets to certain classes of vehicles,” the panel of judges concluded, pointing out, however, that the exclusion of a certain class of vehicles from municipal streets must bear a direct relationship to the public safety and not be arbitrary, discriminatory, or capricious. The judges explained that the township’s ordinance was supported with engineering reports from the New Jersey Department of Transportation, independent consultants, and the township engineer, and they stated, “those reports provide the facts which rationally support the conclusion that the adoption of the ordinance is in the public interest.” This dispute has a long history dating back to the year after Olney Road was opened to through traffic in August 2004. The township attempted to close a portion of Olney Road by ordinance in 2005, which effectively would have prevented through traffic on that road, but that ordinance was negated when the NJDOT refused to approve the ordinance. The township council then adopted another ordinance in 2006 seeking to close Olney Road, and Cabezas filed a lawsuit claiming the township did not obtain NJDOT approval and that it violated his civil right to use Olney Road as a public thoroughfare. A Superior Court judge invalidated that township ordinance in 2008 because the township did not present enough “empirical” evidence to support the closing of the road. However, that judge also dismissed Cabezas’ claim that the ordinance violated his civil rights. The township then hired a traffic engineer to study the traffic on that road and provide a report to the council and, based on that analysis of the traffic on that road at a peak traffic periods, it was recommended that Olney Road be limited to through traffic by using a barrier system near the Stephens Lane end of the road. That engineer’s analysis showed that the vehicles using Olney Road were not neighborhood residential vehicles that would be accessing residences nearby, and there were convenient alternate routes for the displaced through traffic. The engineer recommended the road either be closed or widened, but the township felt it would be too expensive to widen the road. Olney Road was again closed to through traffic by a township ordinance in 2009, which was the subject of the panel’s decision. The Mahwah Public Library will offer a variety of entertainment opportunities during Thanksgiving week. These programs are free and no tickets are necessary. Seats will be available on a “first come” basis. “The Improvables,” an improvisation comedy troupe, will perform at the library on Sunday, Nov. 20 at 2 p.m. Performing improv regularly at the Watchung Art Center since 2003, The Improvables present outlandish humor, surprises, and an all-around great time. Each show consists of a series of “games” in which the performers have to act out Thanksgiving week entertainment announced various scenarios without knowing in advance what they are going to say or how things are going to turn out. The audience often sets the scenes for the players on-the-spot. Audience members are also sometimes pulled up to join the fun. These family-friendly improv performances are good, clean fun for families with kids ages 10 years and older. On Friday, Nov. 25, the Thanksgiving Family Movie will be “Kung Fu Panda” at 2 p.m. There will be popcorn, (continued on page 23)