For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
The issue here involved is the validity of a sale of real estate by the City of Jersey City (Jersey City) to Philip B. Robinson (Robinson).
On October 14, 1959 Robinson made an offer in writing to Jersey City to purchase 60 acres of land theretofore acquired by it as the result of a tax foreclosure and known as Block 1751 -- Plot 10B; Plot 10C; Plot 10D; Plot 10E; Old part of Plot 10A, and Block 1746 1/2 -- Part of Plot H1; Part of Plot G; Part of Plot K as indicated on Map approved February 27, 1957. The Board of Commissioners of Jersey City adopted a resolution on October 20, 1959, declaring that some 75 parcels of land, including the lands for the purchase of which Robinson had made said offer, were not needed for public use and directing the sale thereof at public auction on November 9, 1959, pursuant to N.J.S.A. 40:60-26(a). Notice of the sale was duly published
in accordance with the provisions of said statute. The notice contained the following general conditions:
"(2) All such sales are to be made subject to such state of facts as an accurate survey may disclose, existing tenancies, rights of persons in possession, zoning ordinances, City Ordinance No. K-1455, easements, conditions, covenants and restrictions of records or otherwise, violations of the regulations and requirements of the Building Department, the Health Department and the Police and Fire Departments of the City of Jersey City. No representations of any kind are made by the City of Jersey City as to the condition or status of the property."
and the following specifications and conditions solely applicable to the lands in Blocks 1751, 1746 1/2:
"* * * and upon the further condition that the purchaser shall repair the existing storm sewer and construct and extend this storm sewer from its present terminus to ten (10) feet beyond the Westerly property line, under the supervision of the Chief Engineer of the Department of Public Works of the City of Jersey City; and upon the further condition that the purchaser shall fill and grade the entire lands to one (1) foot above the existing grade of Route 440. The filling and grading shall commence within six (6) months from the date of confirmation of sale and shall be completely filled and graded within two (2) years of the starting date; and
Upon the further condition that the purchaser shall construct a dyke or embankment along the Westerly property line to retain any and all fill that shall be deposited on the Easterly side of said property line. This dyke or embankment shall be designed to withstand the pressure of the land filled on the Easterly side and it shall be constructed to the satisfaction of the Chief Engineer of the Department of Parks and Public Property of the City of Jersey City; and
Upon the further condition that the purchaser shall erect thereon a non-residential building or buildings covering a ground area of five hundred thousand (500,000) square feet. The construction of said building or buildings shall be completed within four (4) years of the date of confirmation of the sale. The purchaser shall begin the construction of a non-residential building or buildings, covering a ground area of three hundred thousand (300,000) square feet within eighteen (18) months of the date of confirmation of sale and shall complete the construction of the three hundred thousand (300,000) square feet within three (3) years of the date of confirmation of the sale.
The purchaser shall begin the construction of a non-residential building or buildings covering an additional two hundred thousand (200,000) square feet of ground area within thirty-six (36) months
from the date of confirmation of the sale and complete the construction of the additional two hundred thousand (200,000) square feet within one (1) year of the starting date.
The cost of the construction of the storm sewer and any additional sanitary sewers, roads, water mains and all utilities shall be borne by the purchaser.
THE MINIMUM PRICE is . . . $60,000. No commission will be paid to any broker or any person consummating the sale of Block 1751 - Plot 10B; Plot 10C; Plot 10D; Plot 10E; Old part of Plot 10A Block 1746 1/2 - Part of Plot H1; Part of Plot G; Part of Plot K as indicated on Map approved February 27, 1957. Route 440."
On September 14, 1959, James F. Murray, Jr., Director of Revenue and Finance of Jersey City, had forwarded a letter to the Jersey City Incinerator Authority (Incinerator Authority) concerning the lands here involved, which read:
"In accordance with our conference of last week please accept this as authority until further notice from this department to place the clean fill of the incinerator on the City property north of the Central Railroad embankment and west of Route 440 up to road level grade.
It is clearly understood that the City may withdraw this permission or modify it at any time by a similar letter to the Incinerator Authority."
Under date of November 7, 1959, Frank H. Touhy, Chairman of the Jersey City Incinerator Authority, wrote Murray as follows:
"You will recall that we have the right to place clean fill from the Jersey City Incinerator Authority on the City owned property north of the Central Railroad embankment and west of Route #440.
This right arises from your letter of authority dated September 14th, 1959. A copy of this letter is attached for your convenience.
Will you be kind enough to take whatever steps are necessary to protect the rights of the Authority in this matter under Paragraph 2 and the other conditions of public sale of the subject property scheduled for November 9th, 1959.
Please be assured that we will fully cooperate with the City and also the successful bidder in the exercise of our rights."
On November 9, 1959 William P. Black, Assistant Tax Collector of Jersey City, who conducted ...