Brown, J.d.c. (temporarily assigned.)
The Borough of Fair Lawn's planning board was created initially by ordinance No. 227 adopted on or about September 26, 1939, pursuant to the enabling provisions of R.S. 40:55.
Ordinance No. 574, adopted on June 8, 1954, provided for the regulation of subdivisions in conformity with N.J.S.A. 40:55-1.27 (Municipal Planning Act, 1953) and ordinance
No. 575, adopted on June 22, 1954, amended the 1939 ordinance so as to make it conform with and implement certain new provisions contained at large in the same 1953 statute.
On June 23, 1959 ordinance No. 734 was adopted by the borough. It repealed the 1939 ordinance creating the planning board, ended the terms of office of the incumbent members, and established a new planning board "pursuant to the provisions of chapter 433 of the Laws of New Jersey, 1953."
The text of the new planning board ordinance is substantially the same as that contained in the original ordinance of 1939, as the same was amended in 1954 by ordinance No. 575.
On the date of the enactment of ordinance No. 734, by which the new planning board was created, the five plaintiffs were class IV members of the superseded planning board. They have brought this action in lieu of prerogative writs for judgment declaring invalid the ordinance and any action taken pursuant thereto including the membership appointments of defendants Kuiken, Sprechman, Walker (Walter), Robbins and Ficca.
The defendants by way of counterclaim demand judgment dismissing the plaintiffs' complaint and declaring that the latter are not legal members of the planning board.
The plaintiffs' answer to the counterclaim raises six separate defenses: the counterclaim fails to state a claim, defendants are not proper party-counterclaimants, unreasonable delay, laches, limitation of time and bad faith.
The matter is now before the court on motion by the defendants for summary judgment dismissing the complaint and in favor of the defendants on their counterclaim for a declaratory judgment. Incorporated are motions to dismiss the complaint against the above-named individual defendants on the ground that they have been joined prematurely before their appointment to office, and to limit discovery by the plaintiffs.
The following facts are not challenged on the motion:
Six class IV members were appointed at the inception of the board. The appointment date for all was October 10, 1939. The terms of all expired on December 31 in successive years beginning with 1940 and ending with 1945.
Class IV members were thereafter appointed for terms similarly expiring at the end of calendar years until 1948.
Effective April 20, 1948, the borough government changed to the municipal manager form.
Since that event the terms of all class IV appointments have terminated on anniversaries of March 1.
In conformity with this practice the plaintiffs, on June 23, 1959, were incumbent in class IV with terms expiring on March 1 in the years 1960 through 1964.
It was this term expiration situation which, according to the defendant members of the governing body, caused them to enact the ordinance by which the old planning board was abolished. It is their position that the appointments of the five plaintiffs were in derogation of legislative mandate for the reason that they did not expire on December 31 in each of the years; as a result, the appointments were void; the board, consequently, was not legally in existence or legally constituted; and the municipality therefore had the legal right and obligation to abolish that planning board and to create a new one. The main legal position taken by the defendants on this motion is thus stated.
The controversy centers on the meaning of a portion of N.J.S.A. 40:55-1.4 (identical with R.S. 40:55-3, the prior statute). All other legal issues are peripheral. The court is required to construe the doubtful language which is as follows:
"The term of one member of class IV first appointed shall expire at the end of each year beginning at the end of the first year. Thereafter the term of each shall be the same number of ...