On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Deighan, Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
[233 NJSuper Page 338] Defendant, Alphonse Stanzione (Stanzione), appeals from a judgment voiding a sale to him of public lands owned by the Borough of South Toms River (borough). To decide this appeal we must construe N.J.S.A. 13:8A-47(b) (hereinafter § 47(b)), which restricts municipal power to sell lands held for recreation and conservation purposes at the time a municipality receives a
grant under the New Jersey Green Acres Land Acquisition and Recreation Opportunities Act (hereinafter Green Acres or the Act), N.J.S.A. 13:8A-36 et seq.
Plaintiff, Cedar Cove, cross-appeals from that part of the judgment which rejected its contention that Stanzione had a conflict of interest which voided the sale.
The material facts are not in dispute. The trial judge's findings of fact are supported by substantial credible evidence in the record. Rova Farms Resort v. Investors, Ins. Co., 65 N.J. 474, 484 (1974).
In 1935, the borough acquired a tract of riverfront property from the State, consisting of lots 1, 2, 3 and 4 in Block 3. The tract became known as Mathis Plaza. Use of the lots was unrestricted. Thereafter, the borough leased lots 2 and 4 to private interests for commercial purposes, leaving lots 1 and 3 vacant. The trial judge found that lot 3 had been used for recreational purposes. These recreational uses included fishing and docking of boats for which the borough exacted a small fee. Benches, tables and charcoal grills were available on lot 3 for picnicking, and by 1962 lot 3 contained a war memorial. Lot 3 also was used occasionally as a circus and carnival site.
Lot 3's use as a park continued through 1978. In January, 1977 the borough applied for a Green Acres grant of $27,500 to develop ballfields in another part of the municipality. The borough received the grant in 1978. There is no evidence that lot 3 had been used as a ballfield.
As part of the Green Acres application process, the borough completed a form entitled Recreation and Open Space Inventory. On this form the borough listed five "Developed Park and Recreation Areas." No property was listed in the inventory section titled "Undeveloped Lands owned by Local Unit and Designated for Open Space, Recreation or Conservation Purposes." Lot 3 was not listed as part of the inventory.
In 1984, the borough, pursuant to N.J.S.A. 40A:12-13, advertised the tract, including lot 3, for sale at public auction.
Stanzione was the only bidder. Cedar Cove, a New Jersey corporation with offices in the borough, commenced this action in lieu of prerogative writs to set aside the sale. In its complaint, Cedar Cove contended, inter alia, that § 47(b) prohibited the sale of lot 3 and that a conflict of interest existed in that Stanzione was in private law practice with his brother, Richard, who was the borough's planning board attorney. Prior to trial, the State, by its Department of Environmental Protection (DEP), was allowed to intervene as a plaintiff. After trial, the trial judge found that no conflict of interest existed but that the sale was barred by § 47(b).
N.J.S.A. 13:8A-47(b) provides:
A local unit which receives a grant under this act shall not dispose of or divert to a use for other than recreation and conservation purposes any lands held by such local unit for such purposes at the time of receipt of said grant without the approval of the commissioner and the State House Commission and following a public hearing by the local unit at least 1 month prior to any such approvals.
Thus, all lands held by the borough for recreation and conservation purposes in 1978*fn1 when the borough received the Green Acres ballfield grant cannot be sold or otherwise diverted to other uses without State approval. The narrow issue, therefore, is whether lot 3 was "held by" the borough for recreation and conservation purposes when the borough received Green Acres money. We conclude that although lot 3 was being used for ...