Kohler v. Barnes
| Court | Superior Court of New Jersey |
| Writing for the Court | LANE |
| Citation | 123 N.J.Super. 69,301 A.2d 474 |
| Decision Date | 01 March 1973 |
| Parties | Gerald D. KOHLER, Plaintiff, v. Raymond BARNES, Mayor of the Township of Howell, et al., Defendants. |
Page 69
v.
Raymond BARNES, Mayor of the Township of Howell, et al., Defendants.
Law Division.
Decided March 1, 1973.
Page 74
[301 A.2d 476] Ernest J. Gikas, Farmingdale, for plaintiff.
John Jay Mangini, Asbury Park, for defendants (Campbell, Mangini, Foley, Lee & Murphy, Asbury Park, Attorneys).
LANE, J.S.C.
This action in lieu of prerogative writs contesting the appointment of William M. Patterson to the Howell Township Industrial Commission and the overall current composition of that Commission is before the Court on final hearing.
Plaintiff is a resident and taxpayer in Howell Township. Defendant Raymond Barnes is Mayor of Howell Township and has been since January 1, 1972. Defendant William M.
Page 75
Patterson was Mayor of the Township from January 1 to December 31, 1970. On September 25, 1972 he was appointed to the Township's Industrial Commission by defendant Barnes.Howell Township contains 63 square miles and has a population of approximately 23,000. Twenty percent of the Township is densely developed. There is some [301 A.2d 477] industry. The balance of the Township is rural.
The Township's Industrial Commission was created by an ordinance adopted on November 9, 1970 by the Township governing body, pursuant to N.J.S.A. 40:55B--1 et seq. The Legislature's findings and purpose in providing for such commissions are set forth in N.J.S.A. 40:55B--2.
It is hereby found and declared as follows:
a. That unless many municipalities are to accept decadence and obsolescence as their inevitable lot, they must thoroughly analyze their position in the industrial structure of the country and then completely mobilize their potential resources for efficient manufacture; that the location of industry today is more and more the result of an impartial, scientific study of basic economic conditions; that one of the basic difficulties of many of the municipalities of this state is that they do not know themselves; that they have little appreciation of either their economic strength or their economic weakness; that they have never studied impartially either the economic advantages or the economic disadvantages of their own peculiar geographic position; that there had been an abundance of publicity campaigns and boosting campaigns founded upon superficial generalities and not well designed to enlighten the prospective manufacturer; that a frank inventory of the industrial life of New Jersey communities as a deliberate and sober inquiry of scientific character is necessary to ascertain their real needs and to determine their potential resources for efficient manufacture with a constructive program for sustained and selective growth and a long term policy of industrial rehabilitation and development is necessary.
b. That there are now many thousands of unemployed persons within the state of New Jersey, who, if profitably employed, would create annual pay rolls of millions of dollars; that the re-employment of the present unemployed would quicken and improve social conditions.
Members of the commissions are described in N.J.S.A. 40:55B--5, which states in pertinent part:
Page 76
The members of each commission shall be appointed by the mayor of the municipality of its creation. Each member shall be, for the last five years preceding his appointment, a citizen of the United States and a qualified voter of the state of New Jersey. * * *
Each member shall be chosen with a special view to his qualifications and fitness for service on the commission. He shall have had experience in industry or commerce and shall be conversant with the industrial needs and facilities of his commission's municipality, and shall be of known devotion to public service.
There shall be appointed upon said commission, unless local conditions shall otherwise require, at least one thoroughly competent representative of mill owners and operators of mill properties; a representative of labor; a representative of the clearing house or banks of said municipality; a representative of the chamber of commerce; a representative of the service clubs of such municipality; a representative of the legal profession; and a representative of a recognized real estate dealer's association.
N.J.S.A. 40:55B--8 sets forth the purposes, functions, and powers (in addition to the general powers, N.J.S.A. 40:55B--7) of these commissions:
Every commission created under this chapter shall constitute the corporate instrumentality of the municipality, by which it is created, for the following purposes:
a. To inquire into, survey and publicize the extent, advantages and utility of [301 A.2d 478] the vacant lands of such municipality, whether municipally owned or otherwise.
b. To classify such vacant lands according to their adaptability for the settlement thereon of various types of industrial enterprises.
c. To study and analyze the various industries of the nation and, to the extent it deems necessary for its purposes, the industries of other nations, with a view to ascertaining the opportunities for the industrial expansion of the municipality. In this connection the reports, records, statistics, compenda and similar documents of existing federal, state, county, municipal and other governmental and public agencies, as well as of responsible private institutions, boards, agencies and similar bodies interested in the compilation of the information relating to industry, shall be resorted to, wherever possible, in order to avoid unnecessary original research and gathering of source material.
d. To advertise the industrial advantages and opportunities of its municipality and the availability of real estate within the municipality for industrial settlement and to encourage and accomplish such industrial settlement within the municipality.
e. To solicit the several industries to purchase or lease the vacant lands and property of or in the municipality.
Page 77
f. To accomplish the sale or lease of the municipality's vacant lands to industries whose settlement thereon is best calculated, in the judgment of the commission, to advance the interests of the municipality and of its citizens and inhabitants.
g. To acquire title to vacant land owned by the municipality for the purpose of resale or lease to industries whose presence within the municipality will benefit in the judgment of the commission, its citizens and inhabitants.
N.J.S.A. 40:55B--9 states:
The commission shall make a study of the tax structure with a view to reducing the tax burden of the municipality.
The Howell Township ordinance creating the municipal Industrial Commission substantially incorporates the provisions of N.J.S.A. 40:55B--1, et seq., and specifically follows the language of Section 5, above, providing for the qualifications and selection procedure for members of the commission.
Plaintiff draws particular attention to the statutory and ordinance requirements that members should have had experience in industry or commerce, be conversant with industrial needs and facilities of the Township, and be of known devotion to public service, and that the commission should, where appropriate, include a representative of mill properties, labor, banks, the Chamber of Commerce, the legal profession and a real estate dealers' association.
When defendant Patterson was appointed to the Commission in September 1972, the Commission had no representative of labor, the Chamber of Commerce, the legal profession, or a recognized real estate dealers' association. The Commission did have members with a background in real estate, in banking and in the operation of mill properties. Two of the members of the Commission had an agricultural background.
Plaintiff asserts that since at the time of defendant. Patterson's appointment the Commission already had two members representing agricultural interests, ahd Patterson is an
Page 78
owner and operator of a dairy farm, his appointment is inappropriate. Plaintiff contends that this appointment was made at a time when local conditions in the Township of Howell did not require it, that only appointments of persons in the categories not yet represented on the Commission[301 A.2d 479] would have been appropriate, and that therefore Patterson's appointment was arbitrary, capricious, unreasonable and contrary to the ordinance and statute.After the Commission was established, applications from residents interested in serving on it were solicited before appointments were made. Defendants argue that the seven categories set forth in the statute and ordinance are well represented on the Commission by individuals whose background, experience and expertise include mill ownership and operation, labor, Township banks, the Chamber of Commerce, Township service clubs and the real estate profession. Defendants assert that since the township attorney serves as attorney for the Commission, he is a sufficient representative of the legal profession. Patterson was a member of the Howell Township School Board for a number of years, a member of the Township Committee for three years and Mayor for one year. He was also on the Planning Board for three years. In addition to his farming activities, he is a member of the Farmingdale Grange which was described as being a service organization serving Howell Township.
Plaintiff seeks (1) a declaratory judgment that the Industrial Commission is illegal and void and the result of arbitrary, capricious and unreasonable appointments by the present mayor and former mayors of Howell Township; (2) an order restraining Patterson from acting as a member of the Commission; (3) an order directing the mayor to appoint replacements for Patterson and other challenged members; and (4) an order directing the mayor to follow the statute in appointing future members.
Defendants argue that plaintiff is barred by R. 4:69--6 or laches from challenging...
To continue reading
Request your trial
-
Kronfeld v. First Jersey Nat. Bank, Civ. No. 85-2929.
...of limitations until plaintiff discovers the wrong or has reasonable notice of it. Hauptmann, 570 F.Supp. 397; Kohler v. Barnes, 123 N.J.Super. 69, 79, 301 A.2d 474 (Law Div.1973). This coincides with the commencement of the running of the statute under the federal equitable tolling 638 F. ......
-
Fuqua v. Bristol-Myers Squibb Co., Civil Action No. 11–6043 (FLW).
...(1980); Trinity Church, 394 N.J.Super. at 168, 925 A.2d 720;Hauptmann v. Wilentz, 570 F.Supp. 351, 397 (D.N.J.1983); Kohler v. Barnes, 123 N.J.Super. 69, 79, 301 A.2d 474 (Law Div.1973); Kronfeld v. First Jersey Nat'l Bank, 638 F.Supp. 1454, 1475 (D.N.J.1986); Foodtown v. Sigma Marketing Sy......
-
Trenkamp v. Burlington Tp.
...its earlier analysis concerning the timeliness of the challenge to the original issuance of the building permit. In Kohler v. Barnes, 123 N.J.Super. 69, 301 A.2d 474 (Law Div.1973), a prerogative writ action challenged the appointment of various individuals to an industrial commission as we......
-
Hauptmann v. Wilentz, Civ. No. 81-3177.
...Marketing Systems, Inc., 518 F.Supp. 485, 488 (D.N.J.1980); Osadchy v. Gans, 436 F.Supp. 677, 681 (D.N. J.1977); Kohler v. Barnes, 123 N.J.Super. 69, 79, 301 A.2d 474 (Law Div.1973); Zimmerman v. Cherivtch, 5 N.J.Super. 590, 593-94, 68 A.2d 577 (Law Div.1949). This is consistent with the fe......
-
Kronfeld v. First Jersey Nat. Bank, Civ. No. 85-2929.
...of limitations until plaintiff discovers the wrong or has reasonable notice of it. Hauptmann, 570 F.Supp. 397; Kohler v. Barnes, 123 N.J.Super. 69, 79, 301 A.2d 474 (Law Div.1973). This coincides with the commencement of the running of the statute under the federal equitable tolling 638 F. ......
-
Trenkamp v. Burlington Tp.
...its earlier analysis concerning the timeliness of the challenge to the original issuance of the building permit. In Kohler v. Barnes, 123 N.J.Super. 69, 301 A.2d 474 (Law Div.1973), a prerogative writ action challenged the appointment of various individuals to an industrial commission as we......
-
Hauptmann v. Wilentz, Civ. No. 81-3177.
...Marketing Systems, Inc., 518 F.Supp. 485, 488 (D.N.J.1980); Osadchy v. Gans, 436 F.Supp. 677, 681 (D.N. J.1977); Kohler v. Barnes, 123 N.J.Super. 69, 79, 301 A.2d 474 (Law Div.1973); Zimmerman v. Cherivtch, 5 N.J.Super. 590, 593-94, 68 A.2d 577 (Law Div.1949). This is consistent with the fe......
-
Blair v. Erie Lackawanna Ry. Co.
...State v. Community Distributors, Inc., 123 N.J.Super. 589, 304 A.2d 213 (Monmouth Cty. Ct., decided April 23, 1973); Kohler v. Barnes, 123 N.J.Super. 69, 83, 301 A.2d 474 (Law Div., 1973); N.J. Sports & Exposition Authority v. McCrane, 119 N.J.Super. 457, 472--473, 292 A.2d 580 (Law Div., 1......