Feller, J.c.c. (temporarily assigned).
[64 NJSuper Page 525] Plaintiffs commenced this action in lieu of prerogative writs, and in the
second count of the complaint as amended by the pretrial order, allege that on or about February 21, 1956 the Common Council of the City of Summit adopted a resolution authorizing the transfer of vacant city-owned property located at the intersection of Risk Avenue, Constantine Place and Passaic Avenue to Post No. 138 of the American Legion; that the conveyance of the said property was made by deed dated April 19, 1956 from the City of Summit to Post No. 138 of the American Legion; that said deed contained a provision whereby the property would revert to the City of Summit if not used for Legion purposes.
Plaintiffs further allege that said property conveyed, when zoned for garden apartment use, is property of substantial monetary value on the open market for sale; that the proceeds of such sale were and are needed for municipal purposes; and that the resolution of the Common Council of the City of Summit, adopted February 21, 1956 and authorizing conveyance of property to the American Legion, is invalid under N.J.S.A. 40:60-40.1, and that said statute under which this conveyance was made is unconstitutional and invalid in violation of Art. VIII, Sec. III, par. 3 of the New Jersey Constitution of 1947.
The plaintiffs move for summary judgment, contending that the conveyance from the City of Summit to Post No. 138 of the American Legion be declared null and void and that the property revert back to the City of Summit, and that the statute under which conveyance was made be declared unconstitutional.
The defendants, the City of Summit and Summit Post No. 138, American Legion, allege that the said conveyance from the City of Summit to the American Legion was pursuant to N.J.S.A. 40:60-40.1 and that the said statute is not unconstitutional and does not violate Art. VIII, Sec. III, par. 3 of the New Jersey Constitution of 1947. The defendants also set up the defense of laches.
By court order dated October 28, 1960, leave was granted to the American Legion, Department of New Jersey, to file
a brief as amicus curiae , and leave was also granted other state organizations of nationally chartered veteran groups to appear and consolidate their briefs with that of the American Legion. The Disabled American Veterans, Department of New Jersey, consolidated its brief with that of the Legion.
By agreement of counsel for the parties, the following stipulation was entered into for the purposes of this motion.
"1. Plaintiffs are property owners in, residents of and taxpayers to the City of Summit, New Jersey.
2. Pursuant to written agreement dated November 1, 1929 the City of Summit leased to Post No. 138 of the American Legion a City-owned building at the corner of Broad and Elm Streets.
3. The said lease did not provide for any rent other than the agreement of the tenant to provide janitorial services. The lease further provided that the tenant would furnish labor and the City all materials up to a value of $3,000.00 required for renovation of the building.
4. The said lease was for a period of one (1) year from the date thereof and the Legion remained in possession as a year to year tenant until some time following February 16, 1959, when it was notified by the City that it must vacate the leased premises.
5. On or about February 21, 1956 the Common Council of the City of Summit adopted a resolution authorizing transfer of property located at the intersection of Risk Avenue, Constantine Place and Passaic Avenue in the City of Summit to Post No. 138 of the American Legion. Pursuant thereto, conveyance was made by deed dated April 19, 1956 of the property described in the resolution and now identified as Lot 3-B in Block 109 on the Tax Map of the City, said property containing approximately 1.83 acres.
6. There was no public notice given of the proposed conveyance of City owned property either prior to or after the aforesaid resolution of the Common Council or the conveyance made pursuant thereto, such notice not being required by the applicable statute.
7. As provided in the aforesaid resolution, the consideration passing to the City from Post No. 138 of the American Legion for conveyance of the aforesaid property was the sum of $10.00.
8. Prior to the conveyance the City of Summit did not obtain an appraisal of the value of the property to be conveyed to the American Legion.
9. On May 12, 1960 plaintiffs obtained from Sargent Dumper, M.A.I., an independent appraisal of the value of the subject premises as of the date of conveyance, * * *. Said appraisal set the fair market value of the property, as of April 19, 1956, at approximately $9,000.00."
The following documents, among others, were submitted to the court for consideration in advance of the ...