Berkeley Heights Tp. v. Board of Adjustment of Berkeley Heights Tp.

• Decision Date: 05 August 1976
• Citation: 365 A.2d 237,144 N.J.Super. 291
• Parties: TOWNSHIP OF BERKELEY HEIGHTS. a municipal corporation of the State of New Jersey, Plaintiff, v. The BOARD OF ADJUSTMENT OF the TOWNSHIP OF BERKELEY HEIGHTS, and Camelot Corp., a corporation of the State of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 291

144 N.J.Super. 291

365 A.2d 237

TOWNSHIP OF BERKELEY HEIGHTS. a municipal corporation of the State of New Jersey, Plaintiff, v. The BOARD OF ADJUSTMENT OF the TOWNSHIP OF BERKELEY HEIGHTS and Camelot Corp., a corporation of the State of New Jersey, Defendants.

Superior Court of New Jersey Law Division.

Aug. 5, 1976.

James J. Walsh, Scotch Plains, for plaintiff Berkeley Heights tp.

Daniel S. Bernstein, Plainfield, for defendant Berkeley Heights Bd. of Adjustment (Sachar, Bernstein, Rothberg, Sikora & Mongello, Plainfield, attorneys).

Robert Greenberg, Berkeley Heights, for defendant Camelot (Greenberg & Feiner, Berkeley Heights, attorneys).

Carl S. Bisgaier, Camden, for Stanley C. Van Ness, Dept. of Public Advocate, amicus curiae.

FELLER, J.S.C., Retired, Temporarily Assigned on Recall.

This matter was heard on the return day of an order to show cause why the relief requested by plaintiff Berkeley Heights Township, affirming the legality of the appointment of John A. Lucido as public advocate for the township should not be granted. The appointment and Lucido's participation at the hearing before the board of adjustment were objected to by Robert Greenberg, attorney for Camelot Corp., one of the defendants, who has applied for a variance before said board.

Daniel Bernstein, board attorney, did not appear, having stated that he has no objections to the appointment of Lucido, but suggested that Lucido should be prohibited from participation at the hearing until such time as a court order was obtained affirming the legality of this appointment. On the return day leave was granted Stanley C. Van Ness, Public Advocate, Department of Public Advocate of the State of New Jersey, to file a brief and argue before the court as Amicus curiae. Amicus curiae submitted a brief and argued in favor of the appointment of Lucido.

The complaint for declaratory judgment filed in behalf of plaintiff alleges that the Township of Berkeley Heights appointed John A. Lucido as public advocate to appear before the board of adjustment and the planning board, if necessary to represent the public interest of the township at large, as more fully set out in the resolution of appointment and affidavits attached.

The complaint further alleges that when Lucido appeared before the board of adjustment on June 7, 1976 to fulfill the function for which he had been appointed, an objection was raised by counsel for appellant in the case on appeal before the board. The chairman then refused to allow Lucido to participate in the appeal until he should receive a ruling from a court of competent jurisdiction that Lucido had such authority. The township committee then authorized the township attorney to institute the necessary legal proceedings to obtain the necessary court ruling that would allow Lucido to fulfill his functions, as intended by the township committee.

The complaint states that no action is presently pending in any court involving the matter herein set forth and that the appeal presently being heard before the board of adjustment is a major one involving defendant Camelot Corp.; that there have been several special hearings already devoted to the Camelot Corp., and in the event that Lucido, the local public advocate, cannot take part in the appeal of Camelot Corp., then the very function for which he was appointed and the record to be received by the township committee upon which it must take action as the granting authority for the relief requested will be entirely frustrated and the township will suffer immediate and irreparable injury.

The complaint petitions the court to affirm that the appointment of Lucido as public advocate is a proper legal appointment of the Township of Berkeley Heights, in the best interest of the township.

The problems involved were recognized ten years ago by Judge Joseph Halpern in an address delivered at the special session on planning and zoning of the New Jersey League of Municipalities in which he stated as follows:

The applicant's attorney if he is well prepared, presents his client's case in the most favorable light and it is inadvisable to rely on the verbal protests of objecting neighbors to give you the factual basis upon which you can act intelligently. Most of the records we see give only the applicant's side of the case--in such instances it is difficult, if not impossible to sustain a Board's action in denying relief. (New Jersey Municipalities, 'An Assignment Judge's Views on Planning and Zoning' (January 1966)).

The solution to the problem, devised by plaintiff's resolution, provides a means by which the public interest is represented in proceedings of substantial public importance, while at the same time insuring that the local board and the township committee retain their necessary objectivity and neutrality. The local public advocate has the absolute discretion to determine which proceedings are of substantial public importance and thus require that the public interest be represented. Where the public advocate has determined that the public interest should be represented, he is free to participate in the proceedings, by presenting evidence, cross-examining other witnesses and presenting arguments.

The power of a municipal corporation to act on behalf of the welfare of its citizens must be liberally construed and include those implied powers 'of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.' N.J. (1947), Art. IV, § VII, par. 11.

The Supreme Court has established standards of review of the power of municipal corporations to act to satisfy locally determined needs. In Whelan v. N.J. Power & Light Co., 45 N.J. 237, 251, 212 A.2d 136, 143 (1975), the court held: 'We are enjoined by the Constitution, Art. IV, § VII, 11, the Home Rule Act, R.S. 40:42--4, N.J.S.A., and the Optional Municipal Charter Law * * * to interpret statutes liberally in favor of the existence of local power to deal with local needs.' The enabling legislation clearly intended to grant municipal corporations such powers as deemed necessary to serve the public interest and to insure judicial deference to that goal. N.J.S.A. 40:42--4 states In construing the provisions of this subtitle, all courts shall construe the same most favorably to municipalities, it being the intention to give all municipalities to which this subtitle applies the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government.

N.J.S.A. 40:48--1 establishes the general powers delegated to municipal corporations. These include the 'employment and compensation of such officials and employees * * * as may be deemed necessary for the efficient conduct of the affairs of the municipality.' N.J.S.A. 40:48--1(3). This enabling legislation is further amplified by the broad powers granted in N.J.S.A. 40:48--2.

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

This constitutional, statutory and judicial framework provides in effect that the creation by Berkeley Heights of a local public advocate is a lawful exercise of its delegated powers. In fact, the power of the State Legislature to create the State Department of the Public Advocate is similar to that delegated to the municipalities to create municipal public advocates. In Van Ness v. Deal, 139 N.J.Super. 83, 93--94, 352 A.2d 599 (Ch.Div.1975), the court dealt with that issue and held that the creation of the Department was constitutional. This is persuasive...