Planning Bd. of West Milford Tp. v. Township Council of West Milford Tp.

• Decision Date: 05 March 1973
• Citation: 301 A.2d 781,123 N.J.Super. 135
• Parties: PLANNING BOARD OF the TOWNSHIP OF WEST MILFORD et al., Plaintiffs, v. TOWNSHIP COUNCIL OF the TOWNSHIP OF WEST MILFORD et al., Defendants.
• Court: New Jersey Superior Court

Page 135

123 N.J.Super. 135

301 A.2d 781

PLANNING BOARD OF the TOWNSHIP OF WEST MILFORD et al., Plaintiffs, v. TOWNSHIP COUNCIL OF the TOWNSHIP OF WEST MILFORD et al., Defendants.

Superior Court of New Jersey,

Law Division.

March 5, 1973.

Orbe & Nugent, Ridgewood, for plaintiffs (John F. Darcy, Fort Dix, on the brief).

Wallisch & Wallisch, Passaic, for defendants (Louis Wallisch, Jr., Passaic, on the brief).

SCHWARTZ, L., J.D.C. (temporarily assigned).

This is an action in lieu of prerogative writs brought by the Planning Board of West Milford and its members in their individual capacity, challenging an ordinance adopted by the township council empowering the municipal manager to appoint the attorney for the planning board.

The parties have stipulated that the planning board was duly constituted by virtue of N.J.S.A. 40:55--1.1 et seq. and the ordinances of the township.

Since 1969 the municipality has been governed by the Council-Manager Plan D of the Optional Municipal Charter Law, known as the Faulkner Act, under Article 12 of N.J.S.A. 40:69A--109 et seq., implemented by an ordinance adopted pursuant thereto establishing an administrative code.

Although the code did provide for the office of attorney for the planning board, nor did any other ordinance so provide, nevertheless the board appointed its own counsel and compensated him from funds appropriated for such purpose by the governing body.

On October 11, 1972 the planning board appointed Terence P. Corcoran as its attorney and notified the council of such appointment. The board was advised by the council on October 16, 1972 that such appointment was without authority.

On November 3, 1972 the township council adopted an ordinance as an amendment to the administrative code creating the office of attorney for the planning board, delineating the duties of the office and providing that 'he shall be appointed by the Township Manager and shall hold office during his pleasure.'

Before reviewing the issue of whether the authority to appoint the attorney for the board resides in or may be delegated to the township manager in accordance with N.J.S.A. 40:69A--109 et seq., or whether such power resides in the planning board itself, it would be well to consider the necessity of adopting an ordinance for this purpose in the first place.

N.J.S.A. 40:55--1.5 (L.1953, c. 433, § 5) provides:

The planning board shall elect a chairman from the members of Class IV and Create and fill such other offices as it may determine. It may Employ experts and a staff, and pay for their services and for such other expenses as may be necessary and proper, not exceeding in all, exclusive of gifts, the amount appropriated by the governing body for its use. (Emphasis added.)

The object of the statute was similar to N.J.S.A. 40:55--36.2 in which, by L.1955, c. 126, § 2, the board of adjustment was authorized to 'employ' an attorney, and by L.1965, c. 215, § 2 which authorized it to 'appoint' an attorney.

He use in the statute of the terms 'create', 'fill such other offices' and 'employ experts and a staff' does not connote mandatory direction in the legislative intention. The office of planning board attorney is not legislative in origin, as is the office of tax assessor, for instance, which does not depend upon a municipal ordinance for its creation. See Ream v. Kuhlman, 112 N.J.Super. 175, 191, 270 A.2d 712 (App.Div.1970).

In Wagner v. Lodi, 56 N.J.Super. 204, 152 A.2d 389 (App.Div.1959), the court held that even though the statute read 'The municipal council Shall appoint * * * an attorney' (emphasis added), this language did not create the office of municipal attorney. See also Jersey City v. Dept. of Civil Service, 7 N.J. 509, 522, 81 A.2d 777 (1951). Cf. Talty v. Board of Education, Hoboken, 10 N.J. 69, 71, 89 A.2d 391 (1952). The court in Wagner concluded that since the office of borough attorney had not been created by ordinance, 'such office is non-existent in the Borough of Lodi, and there is no office to which respondent may claim tenure.'

Unless when required by statute, 'we do not perceive in these provisions a legislative direction for the appointment * * * even though the post be deemed unnecessary. The need is a matter for the discretion of the local authority. We find in the cited act no suggestion of a legislative determination of the need without regard to local conditions.' Handlon v. Belleville, 4 N.J. 99, 108, 71 A.2d 624, 628 (1950).

Tomko v. Vissers, 21 N.J. 226, 237--238, 121 A.2d 502 (1956), was not an expression by the Supreme Court that a board of adjustment had the power to Create the office of attorney. The decision merely illustrated that the board had the 'statutory equipment' to discharge in a proper manner its responsibility to pass upon applications for variances when it stated that the board 'may employ an attorney and clerical personnel to fulfill its function.'

The language in the Planning Act had a similar legal effect with respect to the powers of the planning board.

The particular use of the words 'create * * * offices' in the statute should not be interpreted as vesting in the planning board the self-executing and exclusive power to establish new offices.

The Home Rule Act (N.J.S.A. 40:48--1) provides in part:

The governing body of every municipality may make, amend, repeal and enforce Ordinances to:

3. Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all Officers and employees and to provide for the employment and compensation of such officials and employees, in addition to those provided for by statute, as may be deemed necessary for the efficient conduct of the affairs of the municipality; (Emphasis added)

In Nolan v. Witkowski, 56 N.J.Super. 480, 153 A.2d 745 (App.Div.1959), the court cited with approval the reference to N.J.S.A. 40:48--1 in Davaillon v. Elizabeth, 121 N.J.L. 380, 381, 2 A.2d 369, 370 (Sup.Ct.1938):

The legislature has decreed that this delegated power to create municipal offices and positions, and to prescribe the compensation and the duties appertaining thereto, involving as it does an increase of the financial burden of local government, shall be exercised only by ordinance. (56 N.J.Super. at 495, 153 A.2d at 754)

Except for statutory officers, it is established that the adoption of an ordinance creating an office is a Sine qua non to the appointment of an officer by the governing body. Handlon v. Belleville, Jersey City v. Dept. of Civil Service, Wagner v. Lodi, all Supra. The planning board, being a quasi-judicial or administrative body, lacks the authority to adopt ordinances. Under N.J.S.A. 40:55--1.5 it would be authorized to appoint its officers after the creation of the offices by the ordinance of the governing body.

An attorney whose skills are regularly utilized in advising a planning board holds an 'office.' See Jersey City v. Dept. of Civil Service, 7 N.J. 509, 524--525, 81 A.2d 777 (1951); Wagner v. Lodi, 56 N.J.Super. 204, 206, 152 A.2d 389 (App.Div.1959), cert. den. 30 N.J. 599, 154 A.2d 672 (1959); O'Connor v. Union City, 117 N.J.Super. 575, 578, 285 A.2d 270 (Law Div.1971); Fredericks v. Board of Health, 82 N.J.L. 200 (Sup.Ct.1912). Compare Kovalycsik v. Garfield, 58 N.J.Super. 229, 236--237, 156 A.2d 31 (App.Div.1959).

N.J.S.A. 40:48--1 and N.J.S.A. 40:55--1.5 are In pari materia and must be construed together so as to effectuate the legislative policy. The rule that without a De jure office there can be no De jure officer (Jersey City v Dept. of Civil Service, Supra) applies here. Therefore, the adoption by the governing body of an ordinance creating the office of attorney for the planning board was essential no matter which agency made the appointment.

Even if a salary ordinance was adopted by the governing body in compliance with N.J.S.A. 40:46--23, or if funds for legal representation were provided in the budget, these acts could not by implication create the office or validate an appointment to an office not created by an ordinance. Weaver v. North Bergen Tp., 10 N.J.Super. 96, 76 A.2d 701 (App.Div.1950).

Before entering upon a consideration of the appointive power of a municipal manager under the Optional Municipal Charter Law Vis-a-vis the appointive power of the quasi-judicial planning board, it is necessary to fully understand the role which the Legislature intended the board to play in our municipal governmental structure when it adopted the Planning Act in 1930 and when the statute was amended in 1948, substantially amended in 1953 and amended since, investing the board with considerable powers.

The planning board may adopt and amend a master plan for the present and future development of the community. N.J.S.A. 40:55--1.10, 40:55--1.11.

Thereafter, public agencies shall refer for review and recommendation to the planning board their proposals to expend funds for municipal projects and their proposals for the adoption of an official map and amendments thereto. N.J.S.A. 40:55--1.13, 40:55--1.35.

The governing body may refer to it other matters, including approval of site plans, over which other municipal agencies have no power of review (Arlington Ass'n v. Tp. Coun. Parsippany-Troy Hills, 118 N.J.Super. 418, 420, 288 A.2d 293 (App.Div.1972)), and, when requested, prepare reports bearing upon applications for variance. N.J.S.A. 40:55--1.13.

The governing body may empower the planning board to approve or recommend approval of subdivision applications provisions for improvements therein, including plans for new streets and reservation of areas for schools and parks. N.J.S.A. 40:55--1.14 et seq.

The statute provides for restraint of alienation of real property before subdivision is approved by the planning board. N.J.S.A. 40:55--1.23.

The board shall make a determination as to blighted areas, subject to governing body approval. N.J.S.A. 40:55--21.1 et seq.

A condition precedent for adoption of...