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Zakutansky v. City of Bayonne

Decided: August 10, 1965.


Herbert, Lora and Glickenhaus.

Per Curiam

Appellant, a citizen and property owner of Bayonne, instituted against the city an action in lieu of prerogative writs to set aside an ordinance vacating the public right to certain improved and dedicated park lands owned by the city and also to enjoin the sale of those park lands. The judgment below upheld the ordinance and denied an injunction against sale, and this appeal followed.

The City of Bayonne is the owner of land fronting on Kennedy Boulevard from the south side of West 19th Street to a point 354.52 feet south of the south side of West 16th Street and extending west into Newark Bay. The total area of this tract of land is approximately 37 acres. Of this area 22.5 acres are filled land extending west from the original high water point. This land was reclaimed in 1926 and 1927. The filling and bulkheading of the area was a joint project of the city and federal governments. The 22.5 acres reclaimed were dedicated as park lands, and fronting and abutting upon other park lands in existence at the time of reclamation, the existing and reclaimed lands together made a total park area of 37 acres.

The 15 acres east of the original high water line are divided into two tracts. Tract 1 is 10.257 acres between 16th and 19th Streets and has on it a swimming pool with locker facilities, a tennis court, a stadium used for many events including local

high school football games, a field house and a dressing room. Tract 2 has 5.047 acres and extends south from West 16th Street. On this tract are a fire house, a handball court, a golf range, benches and other park facilities.

On the 22.5-acre tract of land reclaimed in 1926 and 1927 are four ball fields, a soccer field, walks, benches and a wading pool.

On February 17, 1965 the five- and ten acre tracts were vacated of their public use, pursuant to N.J.S.A. 40:60-32, by two ordinances of the municipal council of Bayonne, and freed for sale or other disposition by defendant city as being "unsuited to and undesirable for use as a public park and are otherwise useless, burdensome and disadvantageous to the public." Excepted from the vacation ordinance were the municipal swimming pool and the premises occupied by the Bayonne Fire Department training center and fire house. Companion resolutions to the two ordinances made them effective immediately.

On February 19, 1965 the municipal council, by resolution, offered the 10.257-acre tract for sale. The resolution specified the sale should be in accordance with N.J.S.A. 40:61-22.2, providing that park lands may be sold if reclaimed lands are then substituted as new park lands. Portions of the 22.5-acre tract are being used to replace the land vacated and sold.

Testimony indicates that the facilities on the two vacated tracts will be put either on the 22.5-acre reclaimed tract or be moved to other areas in town. The stadium facilities will be moved to an area adjacent to Bayonne High School.

In 1941 another parcel of land in the vicinity of the lands involved in this case was vacated and sold. At that time 7.35 acres of dedicated park lands were sold by the city to one Charles Shilowitz. That parcel was bounded on the east by Hudson County Boulevard, now Kennedy Boulevard; on the north by 19th Street, on the south by 16th Street, and on the west by Avenue A. At the time of sale the city was using the tract as a park and, it would appear, it dedicated the 22.5-acre tract in accordance with N.J.S.A. 40:61-22.2 to replace

the 7.35 acres sold. Thus the city has used the 22.5 acres to satisfy the statutory requirements for both the 7.35 acres sold in 1941 and the 10.235 acres to be sold here.

Only one other sale of park lands under N.J.S.A. 40:61-22.2 has occurred in Bayonne. Some time in 1935 or 1936 Bayonne reclaimed 11 acres, which land exists as a park between 27th Street and West 25th Street and extends into Newark Bay. Abutting these lands on the east the city owned a tract used for park purposes, consisting of approximately five acres. After a first sale of these five acres was set aside in accordance with the judgment in Markey v. City of Bayonne, 24 N.J. Super. 105 (App. Div. 1952), the property was sold at a second sale to Mill Realty Company, and the 11 acres abutting it were dedicated to replace what had been sold.

The testimony establishes that the city has an overall shortage of park area and is seeking "Green Acres" assistance from the Department of Conservation and Economic Development. However, there appear to be adequate facilities for the particular area or district here in question, and "Green Acres" assistance plus new park land adjoining proposed Route 440 will greatly reduce the over-all shortage.

It also appears from the record that the city's planning board has approved the vacation ordinance.

Plaintiff's first contention is that the trial court erred in permitting the city to vacate and extinguish the public right in dedicated and improved park lands by a proceeding under N.J.S.A. 40:60-32, which reads:

"Vacation of lands dedicated to public use other than a public street; referendum

Whenever within any municipality any lands dedicated or devoted, wholly or partially, to public use other than a public street, highway, lane, alley, square or place shall be considered by the governing body of such municipality to be unsuited to or undesirable for such public use, or otherwise useless, burdensome or disadvantageous to the public, the governing body may by ordinance and on such terms as it shall prescribe, with the consent of the owner of the fee, vacate or extinguish the ...

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