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Wildlife Preserves Inc. v. Borough of Lincoln Park

Decided: June 29, 1977.

WILDLIFE PRESERVES, INC., APPELLANT AND CROSS-RESPONDENT,
v.
BOROUGH OF LINCOLN PARK, RESPONDENT AND CROSS-APPELLANT, AND DEPARTMENT OF ENVIRONMENTAL PROTECTION AND STATE OF NEW JERSEY, RESPONDENTS AND CROSS-RESPONDENTS



Lynch, Milmed and Antell. The opinion of the court was delivered by Milmed, J.A.D.

Milmed

[151 NJSuper Page 537] On July 30, 1975 appellant Wildlife Preserves, Inc., (Wildlife) applied to the Department of Environmental Protection (Department), under the Green Acres Tax Exemption Program, N.J.S.A. 54:4-3.63 et seq. , for tax exemption on nine parcels of real property, totalling approximately 150 acres, located in the Borough of Lincoln Park (borough). Following notice to interested parties, a written objection was filed by the borough. Thereafter, a public hearing was held on the application, at which time the borough, participating through its attorney and tax assessor, advanced various reasons why the property under consideration was not suitable for a Green Acres tax exemption. The Commissioner of the Department of Environmental Protection (Commissioner) certified the eligibility

of five of the lots for real property tax exemption and denied such certification in regard to the remaining four lots. The property was found to be "within a recognized conservation area known as Great Piece Meadows," and as falling within the State's objectives of preserving "lands in the Passaic River Valley for flood control and conservation purposes." The reason given for denial of certification of eligibility for real property tax exemption as to four of the lots was "Insufficient Evidence of Ownership." We now have before us the appeal by Wildlife from the denial, and the cross-appeal by the borough from the grant, of certification

Wildlife argues that the determination by the Commissioner that there was insufficient evidence of its (Wildlife's) ownership of the four lots to warrant their being certified as eligible for tax exemption was arbitrary, capricious and unreasonable We disagree The essential facts are not in dispute. The four lots in question are Lot 28*fn1 in Block 3 and Lots 4, 10 and 30 in Block 136. In "Initial" statements submitted in connection with its application for tax exempt status on Lot 28 in Block 3 and Lot 4 in Block 136 Wildlife claimed "partial" title to the respective parcels. In its "Initial Statement" regarding Lot 10 in Block 136, it stated that title to that parcel was vested in itself "by unrecorded, and lost, deed";*fn2 that "Record title" was "in Gordon

Loery who was agent for Wildlife Preserves"; and that a "Replacement deed" was "being obtained." In its "Initial Statement" regarding Lot 30 in Block 136, Wildlife stated that title to the parcel was vested in it "by unrecorded, and lost, deed"; that "Record title" was "in W. W. Howell who was agent for Wildlife"; that Howell was deceased, and that a "Replacement deed" was "being obtained from his executor."

In the brief submitted on behalf of Wildlife on this appeal, counsel includes the following statement of facts:

In its application for tax exempt status, Wildlife explained that the title of the property in issue was vested in Wildlife by an unrecorded and lost deed and that record title for certain parcels of the property is in the name of W. W. Howell, who was an agent for Wildlife and other parcels were recorded in the name of Gordon Loery, who also was an agent of Wildlife Preserves. The application further indicated that Howell is deceased and that Wildlife is in the process of obtaining replacement deeds from Howell's executor so that title could be recorded in Wildlife's name (Aa-7). At the informal meeting with representatives of the Department of Environmental Protection on September 10, 1975, representatives of Wildlife discussed the lost deeds. Howard Stokes, attorney for Wildlife at the proceedings below, presented the Department with xerox copies of the deeds which were lost (Aa-32). On September 24, 1975, Wildlife sent a letter, together with a memorandum which indicated that the parcels which had been recorded in the name of Gordon Loery were recorded in the name of Wildlife Preserves on September 10, 1970 [ sic ] (Aa-34 to Aa-37).

The Commissioner made his determination on Wildlife's application on the last day allowed therefor, i.e. , on September 15, 1975. N.J.S.A. 54:4-3.67. From the record before us it is clear that on that cut-off day, on the basis of all of the information then before the Commissioner, the lots as to which certification was denied had not met an important prerequisite for Green Acres tax exemption specified in N.J.S.A. 54:4-3.64, i.e. , they were not "owned and maintained or operated * * * by a nonprofit corporation or organization * * *." In the circumstances, we find no merit in Wildlife's claim that the Commissioner's denial of certification

as to the four lots, because of insufficient evidence of ownership, was arbitrary, capricious and unreasonable. That determination was entirely reasonable and in keeping with the requirements of the statute.

Cross-appellant, the Borough of Lincoln Park, contends that the "exemption" statute, i.e., N.J.S.A. 54:4-3.63 et seq. , "is unconstitutional in that it delegates authority without sufficient guidelines." It argues that use of such "broad terms" as "conservation," "recreation," and "public interest" fails to provide the Commissioner with sufficient criteria for the making of ...


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