Cedar Cove v. Stanzione

Decision Date30 May 1989
Citation558 A.2d 1351,233 N.J.Super. 336
PartiesCEDAR COVE, a corporation of the State of New Jersey, Plaintiff-Respondent and Cross-Appellant, and The State of New Jersey, Department of Environmental Protection, Plaintiff-Intervenor and Respondent, v. Alphonse STANZIONE, Defendant-Appellant and Cross-Respondent, and Borough of South Toms River, a municipal corporation of the State of New Jersey, and Planning Board of the Borough of South Toms River, Defendants.
CourtNew Jersey Superior Court — Appellate Division

Irwin I. Kimmelman, for defendant-appellant and cross-respondent, Alphonse Stanzione (Kimmelman, Wolff & Samson, attorneys; Gage Andretta and Bruce Dickstein, on the brief).

George P. Cook, Deputy Atty. Gen., argued the cause for plaintiff-intervenor and respondent Dept. of Environmental Protection (W. Cary Edwards, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; George P. Cook, on the brief).

Theodore E. Kyles, Jr., for plaintiff-respondent cross-appellant, Cedar Cove (Enright, Lenney & Mcgrath, attorneys; Aaron Dines, of counsel; Theodore E. Kyles, Jr., on the brief).


The opinion of the court was delivered by


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, 323 A.2d 495 (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 1 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 recreation purposes in 1978, it was not "held by" the borough for that purpose within the meaning of § 47(b).

In construing a statute we must give effect to the Legislature's intent. Monmouth County v. Wissell, 68 N.J. 35, 342 A.2d 199 (1975). Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness and legislative history. Shapiro v. Essex County Freeholders Board, 177 N.J.Super. 87, 424 A.2d 1203 (Law Div.1980), aff'd, 183 N.J.Super. 24, 443 A.2d 219 (App.Div.1982), aff'd, 91 N.J. 430, 453 A.2d 158 (1982). Moreover, "statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as 'consonant to reason and good discretion.' " Schierstead v. Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959) (citations omitted). And "where a literal reading of the statute leads to absurd consequences 'the court must restrain the words' and seek the true legislative intent." Id. at 231, 148 A.2d 591, quoting In re Merrill, 88 N.J.Eq. 261, 102 A. 400 (Prerog.Ct.1917). In construing a statute we assume that the Legislature intended a reasonable approach, and we should construe a statute to effect a reasonable approach, Roman v. Sharper, 53 N.J. 338, 341, 250 A.2d 745 (1969), not one "at odds with the sense of the situation." Id. at 340, 250 A.2d 745.

Green Acres legislation expresses and implements the public policy of adding to the State's inventory of recreational and conservation lands. N.J.S.A. 13:8A-36. Section 47(b) furthers this policy by preventing a municipality from selling or otherwise disposing of pre-existing recreation lands for which it has substituted Green Acres lands at State expense. See Kauffman v. No. Haledon Bor., 229 N.J.Super. 349, 551 A.2d 564 (Law Div.1988); Borough of Demarest v. State, 148 N.J.Super. 322, 372 A.2d 656 (Ch.Div.1977). There were no statutory restrictions on diversion of pre-existing recreation lands prior to enactment of § 47(b) which was adopted as part of the 1975 Green Acres Act. 2 L.1975, c. 155, § 1 et seq. However, beginning with the first Green Acres Act in 1961, L.1961, c. 45, § 1 et seq., DEP has included in its local grant contracts an undertaking by the local government grantee that it will not divert to other uses lands "now used for recreation or conservation" without the approval of DEP and the State House Commission. Borough of Demarest, supra at 325, 372 A.2d 656. Regulations governing Green Acres grants also restrict diversion. N.J.A.C. 7:36-1.8(k) provides: Upon receipt of an acquisition or development loan or grant, other lands owned, dedicated or maintained for public recreation or conservation purposes by the local unit may not be diverted or disposed of for uses other than those of public recreation or conservation without the prior approval of the Commissioner and the State House Commission.

We note, however, that the Legislature deviated from DEP's contract language and from the regulation's language when it enacted § 47(b). Thus, § 47(b) restricts only those lands "held by such local unit for such purposes."

Citing Smith v. Gaines, 39 N.J.Eq. 545, 547 (E. & A.1885) and Wasser & Winters Co. v. Jefferson County, 84 Wash.2d 597, 528 P.2d 471 (Wash.1974), DEP contends that the word "held" denotes present, possessory ownership. We believe, however, that this construction of "held" begs the question, which we deem to be whether mere use of property for recreation and conservation triggers the restriction, as the trial court held, or whether § 47(b) requires something more than use.

We are satisfied that the statute requires more than use of property for recreation or conservation purposes. We are persuaded to that view because mere use as a predicate of § 47(b)'s applicability can unduly impact municipal land management and titles.

N.J.S.A. 13:8A-37(f) defines recreation and conservation purposes as follows:

"Recreation and conservation purposes" means use of lands for parks, natural areas, historic areas, forests, camping, fishing, water reserves, wildlife, reservoirs, hunting, boating, winter sports and similar uses for either public outdoor recreation or conservation of natural resources, or both. [Emphasis added.]

We have underlined those uses in the definition which are passive, i.e., they can exist on municipal lands in the absence of municipal action or encouragement. Thus, idle municipal lands which are wooded but otherwise undeveloped could be deemed in "use ... for ... natural areas ... forests ... water reserves, wildlife...." Similarly, public use of vacant municipal lands for sporting activities, acquiesced in or supported by municipal authorities, would jeopardize municipal control of those lands if DEP's contention prevails.

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