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Faraci v. Monmouth County Board of Recreation Commissioners

January 25, 2010

GARY FARACI, LINDA FARACI, NEW JERSEY ANIMAL RIGHTS ALLIANCE, AND COMMITTEE TO ABOLISH SPORT HUNTING, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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