On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Brody, J.A.D.
The issue in this appeal is whether the Council or the Mayor of the City of Newark has the exclusive statutory authority to choose which parcels of city-owned real property shall be offered for sale at public auction and to determine the conditions to be attached to each sale. After a bench trial, the judge concluded that the Council has standing to bring this action and that the Mayor alone has the authority in question. We affirm the judge's determination respecting the Council's standing, but we read the applicable statutes differently and reverse on the merits.
As to the standing issue, the Mayor, relying on Washington Tp. Zon. Bd. v. Planning Bd., 217 N.J. Super. 215 (App.Div.1987), certif. den., 108 N.J. 218 (1987), argues that in the absence of express statutory authority, one branch of a municipal government may not sue another branch. In that case a zoning board challenged the authority of the planning board of the same municipality to grant a use variance. The underlying issue was whether a variance from an ordinance provision that prohibited stores from having a floor area of more than 10,000 feet was a use variance, which only the zoning board could grant, or a bulk variance, which the planning board could grant. The court held that it was unseemly
for the zoning board to sue a sister agency at the taxpayers' expense over what the court viewed as a debatable jurisdictional quibble. Id. at 223-224.
The Washington holding was based on the following quotation from Bergen County v. Port of N.Y. Authority, et al., 32 N.J. 303, 314-315 (1960) (an action by Bergen County to have declared unconstitutional a statute that permitted the Authority to acquire certain property for an air terminal and then lease it to a private manufacturer):
To permit contests among [governmental bodies] solely to vindicate the right of the public with respect to jurisdictional powers of other public bodies is to invite confusion in government and a diversion of public funds from the purposes for which they are entrusted. The fear is not idle or theoretical. Practical politics being what they are, one can readily foresee lively wrangling among governmental units if each may mount against the other assaults now permissible upon the initiative of the Governor, the Attorney General or a taxpayer or citizen to vindicate the public right.
Bergen County claimed that the Borough of Moonachie, where the property was located, lost ratables by not being able to tax industrial property because it was owned by the Authority. In holding that the County's interest was too remote to give it standing, the Supreme Court implied that the result would have been different had the County alleged "an intrusion upon [its own] property or political powers. . . ." Id. at 315-316.
We explained the limited scope of the Bergen County holding in Tp. of Dover v. Bd. of Adj. of Tp. of Dover, 158 N.J. Super. 401, 409-410 (App.Div.1978), where we held that a municipal governing body, suing in the name of the municipality, had standing to sue the zoning board of that municipality to challenge its jurisdiction to grant a variance that was so broad that it encroached upon the governing body's legislative authority to zone. We said in Dover,
An arrogation of authority is, however, quite a different matter [from an erroneous exercise of statutory authority] and, in our view, is necessarily and obviously actionable by the body whose authority has been directly infringed upon. [ Id. at 409.]
In the present action, the Council seeks to prevent the Mayor from encroaching on its statutory duties ...