For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Hall, J.
This action in lieu of prerogative writ sought to set aside an ordinance of the governing body of defendant Village of South Orange adopted May 19, 1969, which authorized "the construction of a new swimming pool complex at and in the vicinity of the existing pool in Cameron Field;" appropriated $680,000 to pay for the estimated cost thereof; and authorized the issuance of $630,000 general obligation bonds of the municipality to finance part of that cost. The complaint further asked for a declaratory judgment that the proposed use would violate a deed restriction. The Law Division gave judgment for defendants and we certified plaintiffs' appeal to the Appellate Division on our own motion before argument there. R. 2:12-1.
While plaintiffs, who are taxpayers and residents in the vicinity of the proposed pool complex, urged at trial three bases for their suit, only that relating to the deed restriction
is asserted on appeal.*fn1 The action is grounded on the stipulated fact that 2.38 of the 4.79 acres, upon which the pool complex would be constructed, were conveyed to the village in 1911 by a deed containing the restriction that "the premises herein conveyed are to be used only for the purpose of a free public play-ground, and for no other purpose" (emphasis supplied) and on the claim that the village proposes to make charges for use of the new facility, thereby violating the restriction. The pool, parking areas and other accessories thereto will occupy all of the tract covered by the restriction, and more; and will displace existing recreational facilities thereon including, we understand, a present swimming pool, much smaller than that proposed and for the use of which no fee is charged.
Some history is necessary to put the issue raised by this restriction in proper focus. South Orange has had for many years extensive public park and playground areas in a single general location, consisting of both open space and a wide variety of recreational facilities. A portion thereof, the exact extent of which does not appear in the present record, is known as Cameron Field. This portion apparently had its origin in 1909, when a non-profit corporation was formed by a number of distinguished citizens of South Orange, with the expressed purpose "to purchase the necessary lands and equipment and maintain the same in order to provide a play-ground for the children of the Village of South Orange, such play-ground to be known perpetually as
'Cameron Field' in memory of the services of the late Lewis Cameron to the communities of the Oranges."*fn2 It was that entity which conveyed this 2.38 acre portion of Cameron Field to the village in 1911 with the restriction previously quoted, the deed being signed by Albert C. Wall, a distinguished lawyer in the state, as President.
For some years prior to 1969 there had been community agitation for a larger, modern public pool complex to supplant the existing pool, in line with similar facilities constructed by other municipalities. Various studies and surveys were made under the sponsorship of the governing body by village agencies and retained consultants. After 1967, the exploratory work was carried on principally by the Advisory Board of Parks and Recreation, created by ordinance in that year to "advise, assist and recommend to the Board of Trustees [the governing body] * * * on matters of policy and program and the achieving of an efficient operation of the Department [of Parks and Recreation] * * *." These
studies dealt with pool size and location, integration and expansion of existing recreational facilities, traffic flow, parking facilities, financing and the like.
The Advisory Board made its final report and recommendation to the governing body just before the ordinance under review was introduced. While there is no reference to any official action approving the report, the governing body must have had it strongly in mind when the ordinance was adopted. The report settled on the Cameron Field site and expressly bottomed its proposal on a self-liquidating facility, as to both capital and maintenance costs, to be financed by annual membership which would produce enough to pay off bonds as they matured, as well as to cover the cost of operation. It recommended a pool to accommodate 1500 families (the number who had given an affirmative response to a previous advance membership campaign), with annual suggested rates of $65 for a family membership, $30 for a single membership and $10 for one for a "senior citizen." The report further recommended the use of donated "swimmerships" and subsidization of fees, out of savings from funds presently allocated to the operation of the existing pool, for families and individuals "who find the membership fee a serious burden," such subsidy to be arranged by individual application to the Director of Parks and Recreation.
The ordinance, however, makes no provision for the imposition of fees or charges for pool use and the municipality has as yet adopted no separate ordinance or rules and regulations to that end. The enactment does, however, describe the proposed pool complex as one "to produce a modern utility capable of accommodating a minimum of 1,500 families" and expresses "the intent of the governing body to seek membership fees sufficient to insure a self-sustaining status for the facility." After the ordinance was introduced and before the required public hearing thereon, a letter was sent to all residents of the ...