McLaughlin v. City of Millville
| Decision Date | 27 April 1970 |
| Citation | 264 A.2d 762,110 N.J.Super. 200 |
| Parties | William J. McLAUGHLIN, Jr., Ruth E. McLaughlin, George J. Schneider, Elizabeth I. Schneider, Dorsey Calhoun, Helg Calhoun, Charles P. Peek, III, Gail Peek, Raymond J. Dill, Caroline Dill, Charles M. Smith, Carol Smith, Clarence W. Hand, and Rachel Hand, Plaintiffs, v. The CITY OF MILLVILLE, a municipal corporation of the State of New Jersey, William Shaw, Frank Hoffman, Steven Romanik, Saul Polkowitz, being members of the Board of Commissioners of the said City of Millville, Landis Sewerage Authority, a public body, politic and corporate of the State of New Jersey, Cumberland Mall Associates, Inc., a corporation of the State of New Jersey and Conrad A. Waltman, Millville City Clerk, Defendants. |
| Court | New Jersey Superior Court |
J. Peter Davidow, Millville, for plaintiffs.
Edward S. Miller, City Sol. for defendants City of Millville, the named commissioners, and Conrad A. Waltman, city clerk.
Jordan D. Lippner Vineland, for defendant Landis Sewerage Authority.
Paul R. Porreca, Millville, for defendant Cumberland Mall Associates, Inc. (Porreca, Okoniewski & Lisi, Millville, attorneys).
Plaintiff brings this action in lieu of prerogative writs, R. 4:69, in order to compel officers of the City of Millville to submit ordinance 30--1969 to public referendum. N.J.S.A. 40:74--5. Motions for summary judgment were made by all parties and the matter is presently before the court on the basis of the complaint, affidavits and briefs.
Ordinance 30--1969 authorized Millville to enter into a contract with the Landis Sewerage Authority (Landis) whereby the Millville sewerage utility would process effluent originating from within a portion of the neighboring City of Vineland.
In 1966 Millville was directed by the State Board of Health to expand its sewerage processing facilities. At that time the Millville plant was functioning at between 90% And 100% Of its two million gallon capacity. Relying upon the advice of its consulting engineers, Millville elected to erect a new plant with a five million gallon capacity. It was projected that this plant would satisfy the city's needs until the year 2000.
In 1967 Millville declared its sewer department to be a self-liquidating utility. Therefore, a bond ordinance was adopted by the board of commissioners authorizing the sale of $2,260,000 of bonds. The new plant is presently under construction.
Sometime in 1969 discussions began concerning use of a portion of the new plant to treat effluent from Vineland which would otherwise have been processed by defendant Landis Sewerage Authority. Specifically to be treated was sewerage produced by a shopping center complex which defendant Cumberland Mall Associates (Mall) intend to build on a tract of land on the Vineland side of the boundary with Millville. It is contemplated that this shopping center will include at least four major department stores, a motion picture theater and some 100 'satellite' specialty shops. It is estimated that Cumberland Mall will generate 25,725 gallons of effluent per day, or a fraction of 1% Of the Millville plant's total capacity. However, Landis does not have the facilities to treat the projected effluent.
In order to effect such an arrangement, representatives of Landis, Cumberland Mall, and Millville entered into negotiations culminating in the presentation of a resolution to the Millville board of commissioners dated November 3, 1969. This resolution, No. 5590, authorized the execution of a contract between Millville and Landis. The resolution was adopted by a vote of four in favor, with Mayor Rulon Peek opposed. Mayor Peek then instructed the city solicitor, Edward S. Miller, to submit a legal opinion as to the authority for submitting the resolution for his signature. The solicitor advised that instead of the resolution an ordinance embodying the subject matter of the resolution would be prepared. This ordinance, No. 30--1969, was introduced for first reading at the commission meeting of November 18, 1969. Attached thereto was a proposed agreement of lease. The contract provided that Millville would lease Landis its sewage facilities for a period of ten years and that Landis would pay as rent a sum equal to 75% Of the sewer charges that Landis would collect from Cumberland Mall. Later a revised agreement was substituted, increasing the time required for a written notice renewing the agreement.
On December 2, 1969, upon second reading, the ordinance was adopted by a vote of three in favor, with Mayor Peek again opposed. One commissioner was absent. All parties acknowledge that the passage of this ordinance was surrounded by great controversy. Petitions in opposition to its enactment had been submitted to the city commission. Vocal opposition appeared at all commission meetings at which the issue was considered. Open letters have appeared in local newspapers.
Continued protests were heard after passage of the ordinance. On December 11, 1969, 41 petitions containing 1,886 signatures protesting the passage of ordinance 30--1969 were filed with the Millville municipal clerk. On December 12, 1969 an additional 15 petitions containing 293 signatures were filed. It was the apparent intention of those who circulated these petitions to have them constitute the basis of a remonstrance, as provided for in N.J.S.A. 40:74--5. That statute states:
If within ten days after the final passage of an ordinance, except ordinances authorizing an improvement or the incurring of an indebtedness, other than for current expenses, where other requirements are made by law, a petition signed by electors of the municipality equal in number to at least fifteen per cent of the entire vote cast at the last preceding general municipal election protesting against the passage of such ordinance, be presented to the board, it shall thereupon be suspended from going into operation and the board of commissioners shall reconsider the ordinance. If the ordinance is not entirely repealed, the board shall submit it, in the manner provided in paragraph 'b' of section 40:74--14 and sections 40:74--15 to 40:74--18 of this title, to the vote of the electors of the municipality either at the general election or at a special municipal election to be called for that purpose, and such ordinance shall not become operative unless a majority of the qualified electors voting on the ordinance shall vote in favor thereof.
The form of such petitions is governed by N.J.S.A. 40:74--10 through 14. Each petition must contain an attestation that all signatures contained thereon are genuine. N.J.S.A. 40:74--11. The municipal clerk is then charged with examining the petitions and determining whether they contain the signatures of the requisite number of qualified voters. N.J.S.A. 40:74--12. If defects are found to exist, the statute mandates the municipal clerk to return the petitions to those who have submitted them. Ten days are permitted for the correction of any deficiency. Id.
In the case at bar the petitions submitted were examined and initially found deficient for not having contained the required verification. N.J.S.A. 40:74--11. Accordingly, they were returned to those who had submitted them. N.J.S.A. 40:74--12. On December 22, 1969 properly executed affidavits for all but two petitions were submitted. The amended documents were then examined by the municipal clerk and found to contain 1703 valid signatures. Additionally, the clerk certified that the total number of votes cast in the last municipal election was 7,542 and 'that the number of valid signatures of electors required to make the petition effective is 1,131.' However upon advice of the solicitor, the municipal clerk has refused to submit the matter for referendum. It is that refusal which is being tested by this action brought in lieu of prerogative writs.
Plaintiffs argue that N.J.S.A. 40:74--5 must be read as mandatory and that the municipality is now obligated to conduct a referendum on the merit of the ordinance. Defendants counter with the proposition that the terms of the statute are not mandatory. They found this argument upon the reasoning of this court is Snow v. Bell, 105 N.J.Super. 484, 253 A.2d 188 (Ch.Div.1969). Specifically, they contend that that case held that the referendum statute was inapplicable to ordinances adopted to implement an improvement ordinance by providing for rules and regulations and rate schedules. Alternatively, defendants assert that the passage of ordinance 30--1969 had been made superfluous by the previous enactment of resolution 5590. Because the statute refers only to ordinances and not to resolutions defendants further urge that no referendum is required.
Snow v. Bell addressed itself to whether the Borough of Avalon was required to submit to referendum an ordinance regulating the use of water, fixing metered rates and setting out regulations with respect to the use of water. Plaintiffs contended that the provisions of N.J.S.A. 40:74--5 mandated the suspension of the operation of the ordinance, so that the borough commissioners were obliged either to repeal the ordinance or to submit it to the voters by means of a referendum. The court recognized plaintiffs' real objective was to obtain a decrease in the metered water rates secured by ordinance No. 395. They agreed that the improvement in the water system was needed for reasons of public health, safety and welfare. Thus, in effect, plaintiffs in Snow v. Bell sought to have the electorate determine the ultimate rates to be charged by securing or requiring referenda until the governing body reduced the rates to meet their approval. The court held that such referenda were not contemplated by N.J.S.A. 40:74--5 and that the provisions of ordinance No. 395 were part and parcel of the general improvement theretofore ordained. The court stated:
I believe that the provisions of ordinance No. 395 are part and...
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