Feller, J.s.c., Retired, Temporarily Assigned on Recall.
[154 NJSuper Page 217] This is an action in lieu of prerogative writs. Plaintiff moves for summary judgment and defendant has filed a cross-motion for summary judgment. Defendant intervenor, by court order dated April 8, 1976, was granted leave to intervene against count 3 and count 4 of the original complaint. However, count 4 was, with the approval of the court, withdrawn by plaintiff, and defendant intervenor's cross-motion for summary judgment is directed against count 3.
This action was originally instituted in the Chancery Division of the Superior Court but was transferred to the Law Division by order of Judge Harold A. Ackerman on or about March 26, 1976.
This controversy presents for decision an issue which may be without precedent in this State. The case deals with the power of the newly accepted county manager form of government in Union County, approved by the voters of the county in November 1974 pursuant to the Optional County Charter Law, L. 1972, c. 154; N.J.S.A. 40:41A-1 et seq. Specifically, the issue to be decided is whether the County of Union has the power under the law to abolish the present structure of the Union County Park Commission (Park Commission), plaintiff herein.
Plaintiff contends that the Park Commission was created as a result of a public referendum by the voters of Union County in 1921. Since that time it has existed as a separate body politic of the State of New Jersey, dedicated to acquiring and maintaining parks and recreational facilities for the residents of Union County and the general public.
The Park Commission has developed and currently administers 27 parks, consisting of over 5,509 acres. These parks provide a wide variety of conservation and recreational facilities and are located within the geographical boundaries of Union, Somerset and Middlesex Counties. They are operated on an annual budget of approximately $5,350,766, exclusive of capital funds. About one-third of these funds are derived from revenue-producing facilities operated by the Park Commission, with most of the balance being obtained from the County of Union.
At the present time the Park Commission employs over 200 permanent employees and close to 300 seasonal employees. 42 permanent employees are members of the Union County Park Police and are responsible for law enforcement within the 5,509 acres of park land.
Plaintiff further contends that the County of Union is also a body politic of the State of New Jersey. See N.J.S.A. 40:18-1 et seq. and statutes cited or referenced therein.
Following the enactment of chapter 154 of the Laws of 1972 (commonly known as the Optional County Charter Law, N.J.S.A. 40:41A-1 et seq.), a Charter Study Commission was established to study the governmental structure of Union County. The Study Commission thereafter issued a final report which recommended that the voters of Union County adopt the county manager form of county government, as set forth in Article 4 of the Optional County Charter Law. After this final report was submitted, the Union County Clerk caused a referendum question, framed to conform with the Commission's recommendation, to be placed on the ballot for submission to the voters at the general election held in November 1974. At that election the voters of the county approved the Commission recommendation and adopted the county manager form of government for the county.
Under the terms of the Optional County Charter Law and pursuant to the new charter, the Union County Board of Chosen Freeholders must adopt an administrative code organizing the administration of county government and setting forth the duties, responsibilities, powers and performance required of all county officials and agencies on or before 12 noon on May 1, 1976. This administrative code became effective at noon on May 1, 1976.
The administrative code purports to terminate and/or affect the status of the Union County Park Commission under the Park Act, and absorb certain of its functions into the government of the county. Plaintiff argues, in effect, that the Park Commission is legislatively mandated to operate as an autonomous body, N.J.S.A. 40:37-96 through 174, and is not affected by the referendum adopting the county manager form of government. As a result of this threatened action, the Park Commission has instituted this proceeding and seeks a declaratory judgment.
Defendant Union County contends that this action has been instituted by the Park Commission for the purpose of preventing the county from acting under the terms of N.J.S.A. 40:41A-1 et seq. (Optional County Charter Law) in changing the presently existing autonomous nature of that Commission and bringing its functions under the general operations of county government. Defendant further contends that relief is sought by plaintiff in seeking a declaratory judgment setting aside the Optional County Charter Law as unconstitutional and void as it affects the Park Commission, and further, by seeking a declaratory judgment that any proposed new administrative code of the county which changes the present status of the Park Commission be declared void.
Defendant contends that after the adoption by referendum Union County proceeded to reorganize its freeholder board on November 10, 1975, at which time a county manager was selected and the period of transition began, the main purpose of which was to provide the time necessary to prepare, introduce and adopt an administrative code pursuant to N.J.S.A. 40:41A-125 on or before May 1, 1976. The administrative code, as adopted, sets forth the organization of county government in detail, as well as the functions and duties of all county agencies and officials. The complaint filed herein alleges, quite correctly, that the contemplated code will end the autonomous nature of the Park Commission, bringing that body under the functional jurisdiction and control of the county.
The statute, N.J.S.A. 40:37-96 et seq. , confers upon the Park Commission the status of a body politic, with powers to sue and be sued, the right to use a seal and the right to adopt by-laws to govern the conduct of its business. The commissioners, five in number, are appointed for five-year terms by the board of chosen freeholders with the duty to acquire, maintain, and make publicly available parks and spaces for use by the citizenry. N.J.S.A. 40:37-101. The Commission has,
over the course of its years in existence and operation, acquired and supervised various park and recreational sites and activities, so that today it has hundreds of employees, including police, and thousands of acres of land.
Hudson County, defendant-intervenor, admits most of the facts set out above and denies plaintiff's contention that if the Union County charter is construed to affect the status of the Park Commission, then that part of the charter is unconstitutional and void. All parties are seeking declaratory judgment. Thus it is evident from a review of the above contentions that there are no genuine issues of material facts involved.
Plaintiff sets out in its argument that the Optional County Charter Law was not intended to have any effect on the status of the Park Commission operating under the Park Act.
N.J.S.A. 40:41A-30 outlines the general powers granted to new forms of county government under the law. It reads in part
The grant of powers under the act is intended to be as broad as is consistent with the Constitution of New Jersey and with general law relating to local government. The grant of powers shall be construed as liberally as possible in regard to the county's right to reorganize its own form of government, to reorganize its structure and to alter or abolish its agencies, subject to the general mandate of performing services, whether they be performed by the agency previously established or by a new agency or another department of county government. [Emphasis supplied]
N.J.S.A. 40:41A-26 provides that nothing in the act shall be construed to prevent counties from abolishing or consolidating agencies the existence of which has heretofore been mandated by state statute, providing that such abolition or consolidation shall not alter the obligation of the county to continue providing the services previously provided
by such abolished or consolidated agency. The statute then provides as follows:
The intent of this act is to enable a county that has adopted a charter pursuant to this act to cause any duty that has been mandated to it by Legislature to be performed in the most efficient and expeditious manner and absent a clear legislative declaration to the contrary without regard to organizational, structural or personnel provisions contained in the legislation mandating such duty. [Emphasis supplied]
Thus, the statute states that the grant of powers shall be construed as liberally as possible, and one of the powers given to the county government is to abolish or consolidate agencies without regard to organizational, structural or personnel provisions contained in the legislation mandating the duties to be performed, absent a clear legislative declaration to the contrary.
The Union County Park Commission was organized and exists under the provisions of L. 1895, c. 91, as amended from time to time. This legislation is found in N.J.S.A. 40:37-96 through 174 and will hereafter be referred to as the Park Act. The Park Act provides that it "shall apply to counties having a population of more than two hundred thousand inhabitants, but shall remain inoperative in any such county until submitted to and approved by the voters thereof." The voters of Union County, by referendum in 1921, by a majority vote created the Union County Park Commission. In other words, the voters adopted the provisions of the Park Act of 1895. Since that time the Park Commission has existed as a separate and autonomous body politic dedicated to acquiring and maintaining parks and recreational facilities for the residents of Union County and the general public.
The Optional County Charter Law was adopted in 1972 and went into effect on September 20, 1972. One of the plans in this law was the county manager form of government, which was adopted by the voters of Union County by referendum on Election Day 1974. In other words,
the voters adopted the provisions of N.J.S.A. 40:41A-24 et seq. and 40:41A-45 et seq. (the Optional Charter Law with reference to the ...