In this action, the plaintiffs charge in their complaint in the first count that they are property owners who live in the vicinity of or abutting Westside Park in the City of Paterson and are resident taxpayers of the city; that on April 20, 1888, the city acquired by deed, an unrestricted deed, two tracts of land containing what is now known as Westside Park; that on January 5, 1961, the Board of Education of the City of Paterson adopted a resolution addressed to the City of Paterson by its governing body, the Board of Finance of the City of Paterson, requesting that it convey to the Board of Education nine acres of land in Westside Park to be used as a site for a new high school.
On January 12, 1961 the Board of Finance adopted a resolution which stated in substance, first, that the Board of Education determined that a location in Westside Park for the proposed construction of a new high school was desirable, and, second, that the property at such location was no longer desirable, necessary or required for a park or other public purposes, and the resolution authorized the Mayor and the City Clerk of the city to convey the property to the Board of Education for the nominal sum of $1.00. On January 18, 1961 the City of Paterson delivered a deed for the property to the Board of Education.
The facts presented in the affidavits also indicate that on June 3, 1960 the Board of Education engaged Lee and Hewitt as architects to prepare plans and specifications for a new high school at a total estimated cost of $5,000,000. The affidavits show that the architects prepared preliminary plans and filed the same with the Department of Education of New Jersey; that the plans were tentatively approved on February 7, 1962, and fully approved on March 12, 1962; and it is undisputed that on May 24, 1962 the city adopted an ordinance appropriating $5,300,000 for school purposes and authorizing issuance of school bonds, the ordinance to take effect ten days after May 25, 1962.
The plaintiffs claim in their complaint that the actions of the defendants are an unlawful, ultra vires and unconstitutional diversion of park lands, the right to the use and maintenance as such being vested in the plaintiffs and other citizens of the city.
Plaintiffs claim that each plaintiff has a vested property right in said land and will suffer special damage by the proposed destruction of the park land through this conveyance in that, first of all, it would be an impairment of their property values; second, it would be the taking of private property without due process of law; and, third, that the plaintiffs and other citizens of the city will be deprived of their vested rights to use said park land.
The plaintiffs claim that if the defendants are permitted to proceed, it will be inequitable and impossible to stop the construction of the school and that they will suffer irreparable damage. And so the plaintiffs in their complaint seek a judgment that the defendants be restrained from locating and constructing a school on said land; that the defendants be restrained from completing and implementing the ordinance appropriating $5,300,000 for the construction of the school; that the defendants be enjoined from incurring further expense; and that this court declare the deed from the city to the Board of Education null, void, ultra vires , unconstitutional, and that said deed be set aside.
In the second count of the complaint, the plaintiff alleges that the city adopted a master reference plan which called for substantial increase in park land; that on May 11, 1960 the Board of Park Commissioners adopted a motion which stated in part,
"After due consideration of the pros and cons relative to the proposed establishment of a school site in Westside Park, it is urged that the present park lands be retained in their entirety."
It is also alleged in the complaint that on June 3, 1961 the New Jersey Legislature adopted what is known as the New Jersey Green Acres Land Acquisition Act of 1961,
which was approved by referendum, and thus it is the public policy of New Jersey to preserve and ...