On appeal from Superior Court, Law Division, Bergen County.
Lynch and Crane, with Judge Horn participating in the decision.
The issue in this case is whether a municipal governing body which has created a Board of Recreation Commissioners pursuant to N.J.S.A. 40:12-1 et seq. may abolish said Board.
The matter arose on the basis of the following history. On April 2, 1974 the Borough of Rutherford (borough) established by ordinance (Ordinance Code Chapter 83) a Board of Recreation Commissioners (Commission) and invested it with the powers "conferred upon [it] by Sections 40:12-1 to 15 inclusive of the Revised Statutes of the State of New Jersey."
Section 83-5 of said ordinance provided that the Commission shall "formulate plans for the development and improvement of Harold Wall Field, Tamblyn Field, Memorial Park and all structures thereon now or hereafter owned by the borough and all recreational programs," and shall "formulate rules and regulations for the public use of Harold Wall Field, Tamblyn Field, Memorial Park and all structures thereon, and the improvements thereof and all recreational programs * * *." The borough admits that the ordinance by inference seems to vest the Commission with the control of the three primary parks of the borough, including Memorial Park.
In June 1977 the borough became aware that federal funds would be available to it and determined to apply a portion of those funds to construct a municipal swimming pool in Memorial Park. On November 1, 1977 the Commission formally notified the mayor and council that it did not approve of the proposed pool. Subsequently, on November 15, 1977 the Commission filed a complaint in lieu of prerogative writs, seeking a court ruling that it had exclusive control over the park lands and also an injunction against the borough, restraining it from constructing the pool. On December 2, 1977 the trial judge decided that the Commission had "full, sole and exclusive control of the lands
transferred to its jurisdiction" by the ordinance formally establishing a Commission, and enjoined the borough from constructing a swimming pool in a park under the control of the Commission.
On December 20, 1977 the borough enacted the ordinance which is the subject matter of this appeal. That ordinance, passed unanimously, purported to abolish the Commission and establish in its place a Department of Recreation. The Commission then filed the instant complaint against the borough, seeking a declaration that the ordinance abolishing the Commission was null and void, and an injunction from interfering with the Commission in the performance of its powers under the ordinance creating it. Following an evidential hearing the same trial judge delivered an oral opinion in which he stated:
The judge acknowledged in his own words:
Notwithstanding this understanding of the law, he felt that legally the borough could not adopt an ordinance abolishing the Commission if the ordinance "was passed in bad faith for the sole purpose of overcoming * * * the resistance of the
[Commission] to the proposal of the governing body to construct [the] swimming pool." On the basis of "bad faith" only, and without a determination of the legal issue of the right of the governing body to abolish the Commission (notwithstanding an earlier statement to the contrary), the judge set aside the ...