January 25, 2010
GARY FARACI, LINDA FARACI, NEW JERSEY ANIMAL RIGHTS ALLIANCE, AND COMMITTEE TO ABOLISH SPORT HUNTING, PLAINTIFFS-APPELLANTS,
THE MONMOUTH COUNTY BOARD OF RECREATION COMMISSIONERS, EDWARD J. LOUD, IN HIS CAPACITY AS CHAIRMAN OF THE MONMOUTH COUNTY BOARD OF RECREATION COMMISSIONERS, MONMOUTH COUNTY PARK SYSTEM, AND JAMES TRUNCER, IN HIS CAPACITY AS DIRECTOR OF THE MONMOUTH COUNTY PARK SYSTEM, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4122-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Carchman and Lihotz.
This appeal requires us to determine whether a local municipal ordinance prohibiting the discharge of weapons applies and may restrict rules and regulations implementing a Deer Management Program promulgated by a County Board of Recreation Commissioners. We conclude that the local ordinance must yield to the County Plan. We affirm the judgment entered by the Law Division reaching the same conclusion.
These are the relevant facts adduced from the record. Plaintiffs Gary and Linda Faraci are residents of Wall Township in Monmouth County.*fn1 The Monmouth County Board of Recreation Commissioners and Monmouth County Park System (collectively, defendants), as part of an informal agreement governing a past transfer of land between the State and the county, have continued to allow deer hunting by bow and arrow on certain tracts of county parkland, including Shark River Park adjacent to plaintiffs' home. Over the past few years, plaintiffs have allegedly been the "victims of trespassing, littering and intimidation" at the hands of hunters. After learning that defendants intended to permit the hunt again from October 1, 2008 to February 14, 2009, plaintiffs filed an action in lieu of prerogative writs seeking to enjoin the hunt in certain areas, estimated to be a total of five percent of the designated area for hunting.
Plaintiffs relied on Wall Township Ordinance § 140-140(A)(25), which prohibits the "[d]ischarge of firearms, bow and arrow, cross bow, air driven weapon, sling shot or similar weapon" in specific parts of the township, including plaintiffs' home and sections of Shark River Park. Seeking to enjoin the hunt, plaintiffs filed an order to show cause, which was denied. We denied plaintiffs' application for leave to appeal.
Defendants moved for summary judgment. In response, plaintiffs filed an amended complaint joining Wall Township, the Wall Township Committee and the Mayor of Wall*fn2 and cross-moving for summary judgment. Judge Uhrmacher framed the issues as follows:
[Defendants are] seeking summary judgment. And the argument . . . is that there is a legislative system which established the Monmouth County and similar recreational boards, and they are supposed to have an ability to control and develop their parks and their recreational programs. And that because they are a county system, that a municipality['s] . . . ordinance can't -- is preempted basically[.]
And I understand [plaintiffs'] argument . . . to be if you take a look at some other situations, for example, when it involves schools . . . that the Legislature allows the zoning for the municipality to control whether or not a school is placed there.
I think plaintiff argues more that because you're talking about control of weapons . . . whether it's a bow and arrow or a gun . . . Wall Township as a municipality has an interest and citizens have an interest in the control of weaponry, et cetera. But [defendants] view it, you're saying we're not really discussing it in that context. We're discussing it in a land management, park management, recreational context.
The judge then concluded that N.J.S.A. 40:12-6 vests "full control over all lands, playgrounds and recreational places" with defendants, a power which includes the right to "adopt . . . suitable rules, regulations and by-laws . . . ." She concluded that the local ordinance must yield to this legislative mandate and dismissed the complaint. This appeal followed.
Although plaintiffs frame the issue by urging that this appeal is governed by the Supreme Court's decision in Township of Chester v. Panicucci, 62 N.J. 94 (1973), our decision on plaintiffs' motion for leave to appeal disposes of the critical issues before us. In denying plaintiffs emergent relief and leave to appeal, we said:
The Legislature has authorized counties and municipalities to create a board of recreational commissioners, N.J.S.A. 40:12-1, and the board may acquire land for playgrounds and recreational purposes.
N.J.S.A. 40:12-3. If a board elects to exercise its authority to acquire land for recreational purposes, it "shall have full control over all lands, playgrounds and recreation places. . . ." N.J.S.A. 40:12-6. The board may also adopt rules and regulations governing the use of the land and the conduct of persons who use the land. Ibid. Defendants Monmouth County Park System and the Board of Recreation Commissioners adopted the deer management program for 2008-09 in accordance with this statutory authority.
Admittedly, there are instances when local zoning is not preempted by State law. In a situation in which the State building code is silent, a local zoning ordinance will take precedence. See Pfeuffer v. Sculco, 242 N.J. Super. 181, 184 (App. Div. 1990) (State building code contained no provision for sideyard setbacks). On the other hand, when the Legislature expressly exempts a recreational authority from local zoning regulation, local zoning ordinances do not apply to authority land. NJ Sports & Exposition Auth. v. McCrane, 119 N.J. Super. 457, 549, 551-52 (Law Div. 1971), aff'd as modified, 61 N.J. 1, appeal dismissed, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed. 2d 215 (1972).
Here, as in McCrane, the Legislature has bestowed on the county board of recreational commissioners "full control" over all lands in its parks and recreational areas and the authority to adopt suitable rules governing the conduct of persons who use these parks and recreational areas. Therefore, we discern no basis by which the municipal ordinance may operate to prohibit the deer hunt undertaken in a county park and recreation area within its borders.
We denied relief.
Plaintiffs urge that Panicucci stands for the proposition that municipal firearm safety ordinances are not preempted. Such reliance on Panicucci is misplaced. In Panicucci, the municipality enacted an ordinance which largely mirrored a state firearm safety statute found in Title 23, the "Fish and Game, Wild Birds and Animals" code. While the statute only prohibited those engaged in hunting without written permission of the landowner from "hav[ing] in his possession a loaded gun while within 300 feet of any occupied dwelling[,]" the municipal ordinance prohibited all individuals, regardless of purpose or status, from engaging in that same conduct. The defendant was charged with violating the ordinance while on state-owned public hunting grounds and defended on the basis that the ordinance was preempted by the statute. In discussing the basic principles of pre-emption, the Court said:
[m]unicipalities have been granted broad police power over matters of local concern and interest . . . . Our Constitution, Art. IV, § VII, par. 11, ordains liberal construction of these powers. Their scope, however, does not extend to subjects inherently in need of uniform treatment or to matters of general public interest and applicability which necessarily require an exclusive state policy. In addition, a municipality may be foreclosed from exercising power it would otherwise have if the [S]tate has sufficiently acted in a particular field. Obviously local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow. [Panicucci, supra, 62 N.J. at 99.]
The Court held that the ordinance did not violate any of these precepts, concluding instead that the statute provided only "a declaration . . . of minimum regulation[,]" which municipalities were free to build upon for the protection of their citizens. Id. at 102. N.J.S.A. 40:12-6 and related provisions are dissimilar; rather than regulating human behavior, they establish a management and preservation system for an important quality-of-life resource. Additionally, both legislative pronouncements in Panicucci sought to achieve the same goal. Here, the two are in opposition; N.J.S.A. 40:12-6 and related provisions permit the hunting on certain tracts of land, while Ordinance § 140-140(A)(25) attempts to prohibit it.
Twp. Comm. of Denville v. Bd. of Educ. of the Vocational Sch. in the County of Morris, 59 N.J. 143 (1971), also relied upon by plaintiffs, supports the distinction alluded to in Panicucci. In Denville, the Supreme Court held that a county vocational board, although "a distinct statutory entity designed to operate essentially independent[ly]" of any municipal governing body, was nonetheless "not so incompatible with application of local zoning strictures" as to grant the board full independence on the issue of school location. Id. at 147-48. The Court again observed that the state statute made the board subject to the relevant zoning requirements. Id. at 148-50; N.J.S.A. 40:55-33.1; see also Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N.J. 556 (1964).
Ultimately, where the ordinance and legislatively authorized conduct on county land are in conflict, the former must yield. Panicucci and Denville do not alter this basic principle.
Preemption analysis provides a usable framework for our consideration of the issues on appeal. In Overlook Terrace Mgmt Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451 (1976), the Court established a five-part test that is particularly useful here. The test requires consideration of the following inquiries:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature? [Id. at 461-62 (internal quotations and citations omitted).]
Plaintiffs argue application of Overlook is inappropriate as defendants and Wall Township are attempting to regulate different subjects - firearms safety on the part of the township and park management on the part of defendants. Overlook held that a court must first determine "whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted[,]" and that where the two subjects differ, preemption is "clearly inapplicable." Id. at 461 (emphasis added). While here the two policies cover facially different concerns, the effect of the ordinance as written is to frustrate the State's park management.
With regard to the Wall Township ordinance, all five Overlook inquiries are answered in the affirmative. First, by virtue of the ordinance's operational effect, it forbids what the Legislature has permitted - control over defendant's management of the park. The ordinance is not merely a supplemental restriction to a pre-existing state regulation. Granting Wall Township the authority to prevent the county defendants from undertaking the hunt denies defendants the power to carry out their mandate - protection of county parks and control over their use.
Second, the Legislature intended that recreation commissioners exercise exclusive control over the entirety of parklands. The boards are enabled to acquire and condemn land, N.J.S.A. 40:12-3, -4; engage in independent fundraising activity to support their work, N.J.S.A. 40:12-5; control the use of any acquired lands, N.J.S.A. 40:12-6; and levy taxes or issue bonds, N.J.S.A. 40:12-8. These powers vested control of county parkland in the commissioners.
Third, uniformity is critical to both to protect defendants' state-granted authority and avoid municipalities from maintaining policies, that impair the performances of various commissioners. Scattered or haphazard authority over parkland is undesirable as a practical matter. This is the need for "uniform treatment" recognized by the Court in Panicucci, supra, 62 N.J. at 99. The operation of the park must be less dependant on municipal boundary lines rather than those areas recognized by the commissioners for fulfilling the park's mission.
The purpose of the commissioner's actions in permitting the controlled hunt was not simply for sport but to control the deer population for the benefit and safety of the Wall's residents.
Fourth, the state scheme is sufficiently comprehensive to preclude municipal regulation, primarily as municipalities themselves are able to form and control recreation boards of their own. N.J.S.A. 40:12-1.
Finally, as we have noted, the ordinance compromises the Legislature's purposes and objectives. The State has enabled the commissioners to operate the parks. N.J.S.A. 40:12-6 provides in pertinent part that
The board of recreation commissioners shall have full control over all lands, playgrounds and recreation places acquired or leased under the provisions of [this Title] and may adopt . . . suitable rules, regulations and bylaws for the use thereof, and the conduct of all persons while on or using the same; and any person who shall violate any of such rules . . . shall be deemed and adjudged to be a disorderly person.
The custodians, supervisors and assistants appointed by the board shall, while on duty and for the purpose of preserving order and the observance of the rules . . . of the board, have all the power and authority of police officers of the respective municipalities in and for which they are severally appointed.
We agree with defendants that this statute, while not explicit, permits appropriate hunting on county parklands. The commissioners, here, are not unique in this interpretation. See Nyier Abdou, Hunts reduce Morris County's deer population by 1,300, Newark Star-Ledger, Apr. 5, 2009;*fn3 White-tailed Deer Management Program, (Morris County);*fn4 Annual . . . Deer-Management Program to Start Monday, (2009), (Union County);*fn5 Essex County Executive DiVincenzo Announces Successful Deer Management Program has Reduced the Number of Deer in Essex County South Mountain Reservation by Almost 500 (2009), (Essex County).*fn6
We conclude that the application of Wall's Ordinance frustrates the commissioner's ability to perform its legislatively enabled function, and the motion judge correctly granted summary judgment.